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Davide Capitani v Ceramic Tile Engineering Pty Ltd [2002] WAIRComm 5203 (8 April 2002).txt

davide capitani v ceramic tile engineering pty ltd 2002 waircomm 5203 8 april 2002 last updated 6 july 2007100210112western australian industrial relation commissionpartiesdavide capitaniapplicant v ceramic tile engineering pty ltdrespondentcoramcommissioner p e scottdeliveredtuesday 9 april 2002file noapplication 1875 2001citation 2002 wairc 05203_______________________________________________________________________________resultapplication alleging unfair dismissal dismissed_______________________________________________________________________________orderwhereas application pursuant tosection 29 1 b theindustrial relation act 1979 andwhereas 12thday december 2001 commission convened conference purpose conciliating party however agreement reached andwhereas application set hearing determination 11thand 12thdays april 2002 andwhereas 5thday april 2002 applicant filed notice discontinuance respect application therefore commission pursuant power conferred theindustrial relation act 1979 hereby order application hereby dismissed commissioner p e scott

Transpacific Industries Pty Ltd re Transpacific Waste Management (South Australian Post Collections - Site Co-Ordinators) Enterprise Agreement 2012 [2012] FWAA 7156 (22 August 2012).txt

transpacific industry pty ltd transpacific waste management south australian post collection site co ordinators enterprise agreement 2012 2012 fwaa 7156 22 august 2012 fair work australiadecisionfair work act 2009s 185 application approval single enterprise agreementtranspacific industry pty ltd ag2012 10509 transpacific waste management south australian post collection site co ordinators enterprise agreement 2012waste management industrydeputy president barteladelaide 22 august 2012application approval transpacific waste management south australian post collection site co ordinators enterprise agreement 2012 1 application approval enterprise agreement known thetranspacific waste management south australian post collection site co ordinators enterprise agreement 2012 agreement made transpacific industry pty ltd employer application made pursuant tos 185of thefair work act 2009 act application single enterprise agreement 2 satisfied requirement ins 186 187and188as relevant application approval met 3 agreement approved accordance withs 54 1 act agreement operate 29 august 2012 accordance clause 3 agreement nominal expiry date 22 august 2015 deputy presidentprinted authority commonwealth government printer price code g ae896280 pr528167

Tuqiri (Migration) [2021] AATA 2044 (8 June 2021).txt

tuqiri migration 2021 aata 2044 8 june 2021 last updated 1 july 2021tuqiri migration 2021 aata 2044 8 june 2021 decision recorddivision migration refugee divisionapplicant m adi pei tuqiricase number 1824591home affair reference clf2017 33135member andrew mclean williamsdate 8 june 2021place decision brisbanedecision tribunal affirms decision grant applicant family residence class bu visa statement made 08 june 2021 2 42pmcatchwordsmigration family residence class bu visa subclass 836 carer care provided australian resident relative evidence provided one relative unable provide care care service provider care plan service provider place decision review affirmedlegislationmigration act 1958 cth 65migration regulation 1994 cth r 1 15aa 1 e ii schedule 2 cl 836 212 836 221statement decision reasonsapplication reviewthis application review decision made delegate minister home affair 3 august 2018 refusing grant review applicant family residence class bu visa unders 65of themigration act 1958 cth act applicant applied visa 28 april 2017 time class bu contained three subclass subclass 835 remaining relative subclass 836 carer subclass 838 aged dependent relative item 1123b schedule 1 themigration regulation 1994 cth regulation present case applicant seeking satisfy criterion grant subclass 836 visa criterion subclass 836 visa set inpart 836of schedule 2 regulation relevantly matter primary criterion met include cl 836 221the delegate refused grant visa basis cl 836 221 met following applicant provide evidence confirm claimed status niece australian resident tavaita velerau tuqiri australian resident satisfaction ofregulation 1 15aa 1 applicant provide satisfactory evidence australian resident relative australia show cannot provide reasonable assistance australian resident satisfaction ofregulation 1 15aa 1 e applicant provide evidence show assistance need australian resident could reasonably provided welfare hospital nursing community service australia required byregulation 1 15aa 1 e ii hearing matter originally scheduled tribunal held 15 june 2021 8 june 2021 tribunal received correspondence applicant dated 7 june 2021 indicated wished tribunal proceed make decision paper without need holding hearing following reason tribunal concluded thedecision review affirmed consideration claim evidencethe issue present case whether applicant satisfy requirement clause 836 221 schedule 2 themigration regulation whether applicant claimed carer clause 836 212 regulation requires applicant claim carer australian relative order carer number element need satisfied firstly applicant must relative australian resident present case visa application made basis applicant carer aunt m tavaita velerau tuqiri australian resident applicant provided copy family tree diagram explains tavaita velerau tuqiri married late uncle brother father satisfied affords sufficient satisfactory evidence applicant niece marriage tavaita velerau tuqiri australian resident seeking applicant carer therefore time application applicant satisfies requirement clause 1 15aa 1 next order qualify carer regulation 1 15aa 1 b c must also satisfied australian resident must medical condition give rise impairment requiring care assistance ongoing requirement least two year assessed impairment table rate least 30 case satisfactory evidence tavaita velerau tuqiri medical condition received rating 40 require ongoing assistance activity daily living regulation 1 15aa 1 applicable instance pursuant toregulation 1 15aa 1 e applicant must provide evidence show care assistance requirement tavaita velerau tuqiri unable provided relative resident australia form 470f applicant specified six 6 relative tavaita velerau tuqiri resident australia josaia tuqiri penaia tuqiri adi tuqiri tavaita tuqiri jnr joshua tuqiri dale tuqiri evidence produced tribunal regarding inability relative australia care tavaita velerau tuqiri follows joshua tuqiri resides address tavaita velerau tuqiri despite say working full time cannot available whenever grandmother might require ratu tuqiri life forest lake cannot available assist tavaita velerau tuqiri home runcorn josaia tuqiri life banksia nsw tavaita velerau tuqiri wish relocate live family nsw dale tuqiri also life tavaita velerau tuqiri claim unable care grandmother reason full time student driver licence adi tuqiri life work thursday island hence cannot look tavaita velerau tuqiri ratu penaia geoffrey tuqiri work full time existing carer commitment law appear evidence tribunal tavaita tuqiri jnr show cannot reasonably provide care assistance tavaita velerau tuqiri snr given absence evidence tavaita tuqiri jnr unable provide assistance towards care tavaita velerau tuqiri tribunal cannot satisfied manner required relation matter specified inregulation 1 15aa 1 e schedule 2 regulation regulation 1 15aa 1 e ii requires assistance requirement tavaita velerau tuqiri cannot reasonably obtained via either welfare hospital nursing community service australia care plan tavaita velerau tuqiri prepared kincare indicate tavaita velerau tuqiri approval level 2 living care package well gardening assistance light evidence regulation 1 15aa 1 e ii satisfied applicant reason applicant meet criterion subclass 836 visa respect visa subclass material would permit finding applicant meet prescribed criterion visa sought decisionthe tribunal affirms decision grant applicant family residence class bu visa andrew mclean williamsmember

Page v Hacienda Caravan Park Pty Ltd t_as Tweed River Hacienda Holiday Park (Residential Parks) [2008] NSWCTTT 1336 (13 October 2008).txt

page v hacienda caravan park pty ltd tweed river hacienda holiday park residential park 2008 nswcttt 1336 13 october 2008 last updated 19 november 2008page v hacienda caravan park pty ltd tweed river hacienda holiday park residential park 2008 nswcttt 1336 13 october 2008 consumer trader tenancy tribunalresidential park divisionapplication rp 08 31294applicant gladys doreen pagerespondent hacienda caravan park pty ltd tweed river hacienda holiday parkapplication renewal proceeding assignment residential site agreement partiesappearances m diedre dowsett northern river tenancy service behalf applicant mr john willmott director respondenthearing 5 september 2008 tweed headslegislation residential park act 1998 act ordersthe order sent 16 september 2008 amended undersection 50of theconsumer trader tenancy tribunal act 2001and read follows applicant gladys doreen pagerespondent hacienda caravan park ltdon 5 september 2008 following order made 1 tribunalrecordsthat conclusion hearing mr wilmott behalf park ownerexecuteda deed assignment right obligation oral residential site agreement applicant m marilyn meredith copy deed assignment initialled placed tribunal file tribunal find park owner failed comply two earlier order tribunal particular order 27 06 08 file referred tenancy commissioner forconsideration tribunal find applicant entitled compensation arising park owner breach agreement unreasonably refusing assign mr page residential site agreement m meredith consequence breach sale mr page home could proceed 10 06 08 mr page entitled following compensation rental paid 10 06 08 30 06 08 site occupied mr page inanticipationof sale completed 381 75 b loss use proceeds sale 63 000 00 7 pa 11 06 08 05 09 08 1036 23 c distress discomfort occasioned mr page consequence park owner breach 750 total 2167 98the park owner hacienda caravan park ltd nsw 2487is pay applicant gladys doreen page nsw 2485the sum 2167 98 3 10 08 theregistraris directed ensure money paid applicant tribunal paid park owner kaschfor registrar18 09 08the respondent sought written reason determinationreasons decisionms page lived hacienda caravan park 22 year occupies site 130 upon located mobile home although difference party whether fact site 131 significance 22 year site occupied m page principal place residence written agreement party agreement constitutes oral residential site agreement act applies m page 88 year age although active longer best health point reached longer possible live independently within residential park arrangement made move location near relative home site 130 listed sale april 2008 agreement reached m marilyn meredith mr willmott refused assign agreement behalf park owner ground oral agreement could assigned home comply local government regulation requirement tweed council m page made application tribunal order park owner comply statutory term implied bys41of act 8 may 2008 tribunal rejected ground relied upon park owner found acted unreasonably refusing assign m page agreement order made requiring respondent sign assignment agreement within 7 day receiving document applicant 2 june 2008 written agreement signed m page sale m meredith settlement take place 13 june 2008 m page said understood everything finalised moved residential park mr martinsen gave evidence licensed real estate agent acting sale stated assignment residential site agreement signed m page m meredith delivered park owner 2 june 2008 signature 10 june went residential park told park owner prepared sign 13 june 2008 assignment returned mr martinsen contacted respondent told mr willmott overseas 3 week mr martinsen made application tribunal behalf m page seeking urgent hearing 13 june 2008 27 june 2008 tribunal made interim order park owner execute deed agreement applicant immediately deed assignment submitted park owner 2 june 2008 identified member deed subject order order made payment rent tribunal pending determination applicant claim compensation mr martinsen gave evidence m meredith taken possession home verge rescinding agreement consequence delay finalising sale mr martinsen also gave evidence observation effect delay upon m page health mr sheldon page gave evidence grandson applicant mr page stated problem sale grandmother home settling new environment stressful mr page said event caused grandmother great concern hard mr willmott gave evidence behalf park owner said time tribunal hearing 8 may 2008 conversation m meredith indicated proceeding purchase mr willmott said believed mean matter end order mr holwell 8 may 2008 negated view whatever may mr willmott earlier understanding would clear receipt signed deed assignment 2 june 2008 sale going ahead park owner required give consent mr willmott response situation prepare alternative deed assignment sent m meredith 19 june 2008 scope order 8 may 2008 negotiation term assignment particularly clause 4 submitted applicant differed general law however document presented park owner sought subvert finding tribunal made 8 may 2008 mr holwell followed decision inhacienda caravan park pty ltd v mcconnell 2008 nswcttt 838in finding park owner generally cannot withhold consent assignment assignor assignee satisfies park owner home complies local government regulation council requirement case mr holwell noted evidence m page ever asked provide certification 22 year hacienda nevertheless draft deed prepared respondent made condition assignment dwelling would made compliant within 60 day thereafter removed residential park particular draft deed required van annexe reduced length 5 6 metre thereby excising area 31 1 square metre dwelling park owner document sought tribunal found could condition assignment clearly made unlikely sale m page home would proceed document cannot regarded genuine attempt park owner reach agreement proposed term assignment follows park owner breach order 8 may 2008 park owner also breach order 27 june 2008 order specified particular agreement signed respondent executed immediately two month passed since order without park owner done mr willmott said respondent representative permitted appear hearing 27 june 2008 lack written authority mr willmott said park owner able present proposed deed assignment result reason given view evidence would alter nature order made 27 june 2008 submission mr willmott claim respondent could sign applicant proposed deed purport assign right occupy thepremisesat site 130 park owner interest home site thus nothing assign argument ingenuous definition residential premise includes residential site moveable dwelling located document make clear right obligation residential site agreement assigned mr willmott submitted site incorrectly described applicant deed site 131 site 130 confusion correct simply overcome document ground park owner seize upon warrant refusal sign document presented find park owner continued unreasonably refuse assign right obligation m page residential site agreement m meredith park owner continued breach residential site agreement despite two order tribunal remedy breach evidence m page mr martinsen mr page establish applicant undergone considerable degree distress discomfort result park owner breach term implied bys41 m page entitled compensation non economic loss assessing compensation take account fact part distress discomfort arises impact relocation allow compensation 750 00 claim addition applicant entitled refund additional rental paid date upon settlement could occurred 30 june 2008 381 75 applicant entitled compensation interest foregone purchase price 63 000 00 period 11 june 2008 5 september 2008 reasonably foreseeable applicant would lose opportunity earn investment income proceeds sale applicant home reason respondent unreasonably refusing assign residential site agreement accept applicant evidence amount calculated 7 interest per annum amount allowed 1036 23 payment sum made accordance order set commencement reason record park owner signed deed assignment conclusion hearing document originally submitted applicant respondent clause 4 deleted clause removed sought extinguish future liability applicant event default purchaser consistent general law position assignor remaining liable recovery cannot obtained assignee alteration affect finding park owner acting unreasonably failure assign alter finding park owner failed comply order 27 june 2008 money paid tribunal paid park owner h e moorememberconsumer trader tenancy tribunal13 october 2008

Haddad and Secretary, Department of Family and Community Services [2002] AATA 194 (22 March 2002).txt

haddad secretary department family community service 2002 aata 194 22 march 2002 last updated 25 march 2002decision reason decision 2002 aata 194administrative appeal tribunal n2000 1754general administrative division yousef haddadapplicantand secretary department family community servicesrespondentdecisiontribunalms j shead memberdate22 march 2002placesydneydecisionthe tribunal affirms decision review m j sheadmembercatchwordssocial security disability support pension whether overpayment disability support pension applicant wife declaration income whether overpayment debt due commonwealth waiver debtsocial security act 1991 section 132 133 1224 1 1237aadsecretary department social security bliss aat 11473 13 december 1996 reason decisionms j shead member1 application review administrative appeal tribunal tribunal yousef haddad mr haddad review decision social security appeal tribunal ssat dated 3 november 2000 decision affirmed decision made 31 march 2000 centrelink delegate secretary department family community service department raise recover overpayment disability support pension paid mr haddad period 16 july 1999 10 september 1999 t8 original decision reviewed affirmed authorised review officer 13 june 2000 2 hearing held tribunal 17 april 2001 mr haddad represented hearing gave evidence assistance arabic interpreter m c collis advocate advocacy administrative law team centrelink represented respondent 3 document submitted pursuant tosection 37of theadministrative appeal tribunal act1975

Kestral Trading Pty Ltd v Montano Corp Pty Ltd [2003] FCA 1391 (8 July 2003).txt

kestral trading pty ltd v montano corp pty ltd 2003 fca 1391 8 july 2003 last updated 2 december 2003federal court australiakestral trading pty ltd v montano corp pty ltd 2003 fca 1391kestral trading pty ltd or v montano corp pty ltd anorn 1251 2002whitlam j8 july 2003sydneyin federal court australianew south wale district registryn 1251 of2002between kestral trading pty ltdfirst applicantadam john hennessysecond applicantcelia mary hennessythird applicantand montano corp pty ltdfirst respondentpeter montanosecond respondentjudge whitlam jdate order 8 july 2003where made sydneythe court order 1 first second respondent give discovery respect category 1 18 letter dated 27 may 2003 solicitor applicant solicitor respondent filing serving affidavit 25 july 2003 2 respondent pay applicant cost applicant motion notice filed 11 june 2003 note settlement entry order dealt order 36 federal court rule federal court australianew south wale district registryn1251 of2002between kestral trading pty ltdfirst applicantadam john hennessysecond applicantcelia mary hennessythird applicantand montano corp pty ltdfirst respondentpeter montanosecond respondentjudge whitlam jdate 8 july 2003place sydneyreasons judgment1 motion notice given 11 june 2003 relation discovery respondent motion relates action damage relief thetrade practice act 1974 cth theact alleged various contravention theactwith respect purchase first applicant real estate business first respondent sydney operation pursuant franchise agreement 2 second third applicant director first applicant second respondent director first respondent second applicant also alleges former employee first respondent asserts claim breach contract employment respondent admits agreement purchase business little else pleading closed 3 matter leave granted party file serve notice discovery applicant respondent filed notice 26 february 2003 4 march 2003 respectively applicant purported give discovery filing list document 2 april 2003 respondent likewise 6 may 2003 application court seek order first second respondent give discovery relevant document 20 june 2003 course obligation already existence pursuant notice given leave already granted 4 immediate background motion emerges course correspondence party letter dated 27 may 2003 applicant solicitor sought discovery reference eighteen numbered category set correspondence party period notice applicant motion hearing today applicant order get evidence ready requested respondent provide least minimal amount discovery reference three refined category set letter respondent dated 24 june 2003 respondent complied request 5 m ronalds counsel applicant drawn attention provision franchising code conduct code applicant allege respondent contravened code therefore contravened 51ad theactand seek damage respect breach particular applicant allege respondent breached clause 9 code imposes disclosure obligation upon franchisor relation franchisees prospective franchisees clause 9 franchisor must disclose information contained annexure 1 code category discovery contained applicant letter 27 may 2003 emerge annexure 1 code 6 mr mendel counsel respondent opposed order effectively particular discovery basis respondent fact admitted giving disclosure pursuant code therefore respondent submitted pleading confined issue way make category sought applicant irrelevant matter dispute proceeding regrettably however counsel overstated client position respondent defence make wholesale denial contravention code plainly pleading document sought discovered view relevant 7 mr mendel accepted rather overstated position sought adjournment motion basis would able obtain instruction amend defence way brought pleading line position first represented however application attraction following reason first motion specially fixed today importantly seems relevance document disappear relation allegation contravention code even admission fact made consequence contravention one requires matter agitated order determine damage consequence resulting contravention 8 regard circumstance opinion applicant made case order particular discovery accordingly pursuant 15 r 8 federal court rule first second respondent give discovery category document identified item 1 18 letter dated 27 may 2003 applicant solicitor respondent solicitor filing serving affidavit 25 july 2003 respondent pay applicant cost motion notice filed 11 june 2003 certify preceding eight 8 numbered paragraph true copy reason judgment herein honourable justice whitlam associate dated 28 november 2003counsel applicant c ronaldssolicitors applicant john fitzgerald associatescounsel respondent j mendelsolicitors respondent egisto solicitorsdate hearing 8 july 2003date judgment 8 july 2003

Sanrus Pty Ltd & Ors v Monto Coal 2 Pty Ltd & Ors (No 10) [2019] QSC 297 (29 November 2019).txt

sanrus pty ltd or v monto coal 2 pty ltd or 10 2019 qsc 297 29 november 2019 last updated 3 december 2019supreme court queenslandcitation sanrus pty ltd or v monto coal 2 pty ltd or 10 2019 qsc 297parties first plaintiff sanrus pty ltd trustee qc trust acn 097 049 315andsecond plaintiff edge development pty ltd trustee kowhai trust abn 26 010 309 529andthird plaintiff h j enterprise qld pty ltd trustee h j trust acn 077 333 736andfirst defendant monto coal 2 pty ltd acn 098 919 414andsecond defendant monto coal pty ltd acn 098 393 072andthird defendant macarthur coal limited acn 096 001 955file sc bs8609 07division trial divisionproceeding applicationdelivered ex tempore 29 november 2019delivered brisbanehearing date 29 november 2019judge bond jorder order court plaintiff claim third defendant dismissed defendant oral application judgment respect plaintiff claim second defendant adjourned date fixed question cost order made respect order 1 dealt oral argument commencing 9 december 2019 counsel p l shea qc plaintiffsa pomerenke qc c stumer defendantssolicitors holding redlich plaintiffsallens defendantsbond j order made earlier today granted plaintiff leave amend amended consolidated statement claim proceeding necessity amending consolidated statement claim arose consequent upon certain claim longer pressed first announced senior counsel plaintiff court 22 november 2019 briefly may characterised plaintiff primary claim damage longer pressed amendment made fulfil claim nature pressed third defendant amendment made fulfil finally damage claim pleaded second defendant although allegation second defendant breached contract still pleaded consequent upon amendment formalised granting leave amend immediately thereafter allowing plaintiff file court amended pleading oral application made behalf second third defendant judgment far third defendant concerned basis application obvious already said far second defendant concerned technically proposition pleading articulates claim relief first defendant contention nominal damage claimed second defendant consequent upon alleged breach contract extant claim relief second defendant proposition advanced behalf judgment favour senior counsel plaintiff identified failure advance claim relief second defendant oversight present context minded give judgment favour second defendant light articulation agree submission made senior counsel defendant passing strange case nature claim prosecuted nominal damage party apparent amendment pursued plaintiff relation statement claim quite apart need amendment claim proceeding course take response oral application judgment follows make order 1 plaintiff claim third defendant dismissed 2 defendant oral application judgment respect plaintiff claim second defendant adjourned date fixed 3 question cost order made respect order 1 dealt oral argument commencing 9 december 2019

Mills v Superannuation Complaints Tribunal [2013] FCA 1375 (16 December 2013).txt

mill v superannuation complaint tribunal 2013 fca 1375 16 december 2013 last updated 17 december 2013federal court australiamills v superannuation complaint tribunal 2013 fca 1375citation mill v superannuation complaint tribunal 2013 fca 1375parties thomas eric mill v superannuation complaint tribunal government employee superannuation boardfile number wad 241 2012judge gilmour jdate judgment 16 december 2013catchwords cost whether court exercise discretion make order order cost whether special circumstance existlegislation superannuation resolution complaint act 1993s 14aa 2 37 5 6 state superannuation regulation 2001 wa reg 12federal court australia act 1976 cth 43cases cited colonial mutual life assurance society limited v brayley 2002 fca 1333retail employee superannuation pty ltd v crocker 2001 fca 1330 2001 48 atr 359ruddock v vadarlis 2 2001 115 fcr 229wilkinson v clerical administrative related employee superannuation pty ltd 1998 fca 51 1998 79 fcr 469merkel v superannuation complaint tribunal 2010 fca 564date hearing determined papersplace perthdivision general divisioncategory catchwordsnumber paragraph 28counsel applicant m l b pricesolicitor applicant darren jones barrister solicitorcounsel first respondent m j furlansolicitor first respondent superannuation complaint tribunalcounsel second respondent mr c byddersolicitor second respondent state solicitor officein federal court australiawestern australia district registrygeneral divisionwad 241 2012between thomas eric millsapplicantand superannuation complaint tribunalfirst respondentgovernment employee superannuation boardsecond respondentjudge gilmour jdate order 16 december 2013where made perththe court order second respondent pay applicant cost appeal taxed agreed note entry order dealt rule 39 32 federal court rule 2011 federal court australiawestern australia district registrygeneral divisionwad 241 2012between thomas eric millsapplicantand superannuation complaint tribunalfirst respondentgovernment employee superannuation boardsecond respondentjudge gilmour jdate 16 december 2013place perthreasons judgmentthe appeal matter court original jurisdiction allowed consent order dated 8 april 2013 hearing appeal scheduled commence following day vacated matter remitted first respondent tribunal determined accordance law question cost stood dealt paper reason judgment question cost applicant seek order second respondent gesb pay cost appeal gesb submits order cost tribunal filed submitting appearance save cost backgroundthe notice appeal sought order appeal allowed court set aside determination tribunal remit matter back tribunal determine applicant complaint according law submitted applicant r educed essence ground appeal tribunal failed exercise jurisdiction misdirecting proper construction reg 12 thestate superannuation regulation 2001 wa s regulation governs relevant superannuation fund among others b reviewing gesb decision making process ascertaining fact circumstance relevant whether covert allowance came within term reg 12 however question law full notice appeal follows whether properly interpreted special allowance defined inregulation 12of thestate superannuation regulation 2001 wa excludes meaning remuneration inregulation 5of thestate superannuation regulation 2001 wa allowance paid carrying higher different additional duty limited time providing temporary increase superannuation fund member usual remuneration whether contrary tos 37 5 thesuperannuation resolution complaint act 1993 cth first respondent failed exercise jurisdiction acting contrary law governing rule fund accepting covert allowance paid applicant western australian police industrial agreement special allowance whether contrary tos 37 6 thesuperannuation resolution complaint act 1993 cth first respondent failed exercise jurisdiction reviewing considering fact evidence upon decision second respondent based forming view necessary fact circumstance whether contrary tos 37 6 thesuperannuation resolution complaint act 1993 cth first respondent failed exercise jurisdiction reviewing process led decision second respondent actual decision consequence practical outcome actual decision applicant unders 43of thefederal court australia act 1976 cth fca act award cost discretion court proceeding court except act provides cost awarded exception arise case exercise court discretion 43 unfettered must exercised judicially ordinarily cost follow event absence special circumstance justifying order ruddock v vadarlis 2 2001 115 fcr 229at 9 12 usually special circumstance successful party would denied cost conduct proceeding court court must exercise discretion reference circumstance case ruddock v vadarlis 2 15 25 necessary order understand respective submission party cost consider term ofs 14aa 2 thesuperannuation resolution complaint act 1993 cth thecomplaints act neither notice appeal applicant outline submission relation substantive application refer 14aa 2 pt 4 thecomplaints act provision provides 14aa complaint may made discretionary non discretionary decision 1 avoid doubt complaint may made part decision whether decision involved exercise discretion 2 however decision involve exercise discretion taken unfair unreasonable decision contrary law gesb submissionsgesb conceded tribunal committed jurisdictional error seems concession acceptance tribunal failed give effect provision 14aa 2 thecomplaints act word concedes tribunal failed exercise jurisdiction failed decide pursuant 14aa 2 whether non discretionary decision gesb contrary law might say consider self evident tribunal take account 14aa 2 however gesb concedes purpose appeal tribunal doubt put notice concession background satisfied appeal ought allowed gesb submits order cost four ground first question law posed notice appeal neither capable answer court b conceded gesb determined court accordingly subject matter appeal determined favour applicant second gesb conceded appeal basis 14aa 2 provision raised stage applicant third error gesb fourth gesb identification 14aa 2 determinative provision concession obviated need applicant go hearing applicant omission caused gesb undertake extra work deal turn considerationquestions lawi cannot determine matter never argued whether gesb submits question law posed capable answer court although accept question law conceded gesb question directed toward understandably enough provision 37 5 6 thecomplaints act provision directory tribunal duty whilst could elegantly drafted consider applicant question directed substance whether tribunal determined whether covert allowance special allowance within meaning reg 12 s regulation section 14aa 2 complaint actsection 14aa inserted thecomplaints actfollowing decision full court inwilkinson v clerical administrative related employee superannuation pty ltd 1998 fca 51 1998 79 fcr 469where held tribunal jurisdiction confined reviewing exercise trustee discretionary power gesb submits correctly 14aa critical provision purpose case say tribunal jurisdiction however gesb additionally submits provision also essential provision purpose case concerned tribunal deal complaint non discretionary decision unfair unreasonable provision specifies decision taken unfair unreasonable contrary law decision contrary law tribunal obliged affirm decision colonial mutual life assurance society limited v brayley 2002 fca 1333at 29 30 different reasoning process applies discretionary decision brayleyat 31 33 submits apparent tribunal failure refer 14aa determine whether covert allowance special allowance within meaning reg 12 s regulation tribunal consider 14aa determining applicant complaint submits must given importance 14aa likewise submits provision ought mentioned applicant notice appeal agree necessary tribunal opinion expressly mention 14aa 2 allsop j observed inretail employee superannuation pty ltd v crocker 2001 fca 1330 2001 48 atr 359at 29 29 would prefer use dichotomy discretionary non discretionary decision tool analysis think presence 14aa mandate presence 14aa understood reason make terminology used within compulsory tool analysis understanding tribunal task respectfully agree section 14aa declaratory effect jurisdiction tribunal confined discretionary decision provision required observed necessarily mentioned reason determination tribunal error gesb sit may accepted need appeal flow conduct gesb tribunal failed consider 14aa determining applicant complaint answer claim cost applicant conversely conduct applicant justifies order whether kind referred inruddock v vadarlis 2 15 otherwise conduct applicant litigation caused litigation take longer might otherwise case caused gesb incur cost would otherwise case conduct part tribunal would warrant cost order made seemerkel v superannuation complaint tribunal 2010 fca 564 indeed applicant sought order obviation need hearingit correct also concession gesb saved hearing however detract fact acknowledged jurisdictional error concession warrant enough make cost order favour applicant orderfor reason order gesb pay applicant cost appeal taxed agreed certify preceding twenty eight 28 numbered paragraph true copy reason judgment herein honourable justice gilmour associate dated 16 december 2013

Nestle Australia Pty Ltd & Anor v Om Business Group Pty Ltd & Ors [2021] QCA 208 (30 September 2021).txt

nestle australia pty ltd anor v om business group pty ltd or 2021 qca 208 30 september 2021 last updated 7 october 2021 2021 qca 208court appealmcmurdo jaappeal 10153 2021sc 7109 2020nestle australia ltd first applicantacn 000 011 316australasian food group pty ltd second applicantacn 154 314 913vom business groupt pty ltd first respondentacn 147 861 229pratap narsey second respondentvineet manot third respondentbrisbanethursday 30 september 2021judgmentmcmurdo ja application made pursuant r 772 theuniform civil procedure rulesfor appellant provide security respondent cost appeal amount 88 000 order sought usual term appeal stayed security provided dispute party arises franchise granted nestlé australia om business group permitted operate store selling certain brand ice cream franchise agreement writing dated 1 may 2012 franchise period five year appears store opening june 2012 franchisee operated business agreement expiry period 2017 business unsuccessful franchisee incurred substantial loss loss continued varying amount financial year within franchise period proceeding commenced trial division claim statement claim filed 30 june 2020 plaintiff om business group together two individual mr narsey mr manot director defendant nestlé australia ltd well another company called australian food group pty ltd plaintiff legally represented claim statement claim number defect insofar pleading rule concerned nevertheless thing sufficiently clear om business group complaining loss year franchise period including alleged loss 250 000 loss goodwill end franchise term director claim worse required work many hour business without pay foregoing wage would otherwise earned elsewhere cause action pleaded fell three category firstly claim breach franchise agreement secondly claim breach alleged fiduciary duty owed franchisor franchisee thirdly claim unconscionable conduct contravention theaustralian consumer law case pleaded reference s 20 22 theaustralian consumer lawbut may accepted present purpose reference 22 appellant intending advance case contravention 21 different way defendant sought summary disposal proceeding application came primary judge march contractual claim equitable claim challenged r 171 upon ground nothing pleaded supported said misconduct judge accepted argument struck part pleading contained contractual equitable claim statutory claim challenged different basis defendant argued judge accepted case statutory claim commenced clearly time allowed go forward respect judge persuaded determine preliminary question pursuant r 483 whether plaintiff barred reason subsection 236 2 237 3 theaustralian consumer law otherwise obtaining relief sought proceeding honour ordered would appear declaration plaintiff barred provision obtaining relief theaustralian consumer law appeal honour disposal contractual equitable claim appeal determination statutory claim one view notice appeal appellant om business group respondent nestlé australia however application made clear appellant intention party trial division party appeal purpose application proceed upon basis essence primary judge held cause action theaustralian consumer lawaccrued six year prior commencement proceeding characterised plaintiff case reliance upon representation said made nestlé franchise agreement entered guarantee given mr narsey would done alleged misrepresentation made said franchise agreement entered may 2012 eight year prior commencement proceeding honour said evidence clearly demonstrated prior 30 june 2014 unprofitable nature business known plaintiff complaining loudly term r 772 confer broad discretion application security cost appeal decision three judge court innatcraft pty ltd anor v det norske veritas anor 2002 qca 241justice davy said impossible state comprehensively factor relevant assessment application kind nevertheless consideration usually arise first financial position appellant clearly position poor om business group paid share capital 400 granted registered interest bank present acquired property none appellant registered owner real property australia outline submission application appellant dispute impecuniosity consideration whether order security cost would stifle appeal common ground appellant asset likely consequence order security turn would put paid remains proceeding submitted evidence however would occur suggestion often case person standing behind case plaintiff side would benefit success appeal proceeding able provide security least fairly arguable case appellant appeal prospect appeal would stifled weighty consideration order provision security cost case respondent however submit appeal merit whilst acknowledging court pre judge outcome appeal context submitted case appellant prospect bleak said court provides powerful factor favour ordering security opinion appellant prospect appeal bleak explain primary judge characterised statutory claim claim essentially complaint loss damage reliance upon misrepresentation analysis pleading misconduct occurred prior commencement operation appellant business reliance upon misrepresentation pre dated 30 june 2014 appellant aware victim alleged misrepresentation least one view statement claim understood plaintiff case unconscionable conduct contrary theaustralian consumer lawand conduct occurred franchise period importantly sufficiently clear pleading least occurred prior 30 june 2014 paragraph 7 pleading alleged unconscionable conduct conduct pleaded paragraph 6 large amount ground covered paragraph 6 allegation made representation false time made made without reasonable ground insofar representation made respect future matter however also several allegation effect franchisor failed thing within franchise period caused loss plaintiff example allegation franchisor promote brand franchisee shop look franchisee provide assistance marketing make brand recognisable household name failed provide adequate level training assistance franchisee alleged franchisor failed hold meeting franchisees alleged franchisor approached franchisee late period discus option resulted loss goodwill business least one view pleading allegation conduct distinct one another sense simply continuous course misconduct contravention statute must said poorly drafted pleading well established case decided plaintiff fatally statute barred advance trial whole plaintiff claim except clearest case wardley australia ltd v western australia 1992 hca 55 1992 175 clr 514at 533 present question whether part case deficiently pleaded according procedural rule present question whether claim contravention contravention 21 would bound fail merit whether case bound fail time barred according 236 237 seems likely conduct loss pre dated 30 june 2014 far clear position conduct pleaded paragraph 6 7 least case appears pleading interpretation plaintiff case may explained primary judge suggested fact honour deal view interpretation fairly arguable therefore statutory claim claim entirety clearly time submitted nevertheless evidence honour support case kind described word evidence would established establish cause action nature described still accrued 30 june 2014 evidence application kind would unusual conduct review sufficient say judge consider case made finding absence finding would least provide difficulty supporting judgment basis submitted particularly reference decision high court inhawkins v clayton cause action kind accrues soon alleged loss first incurred loss case first incurred well 30 june 2014 however depends upon premise conduct occurred loss conduct misconduct could occur prior misconduct obvious say question whether according tenable interpretation plaintiff pleaded case several event contravention 21 way described summary view fairly arguable appeal upon basis interpretation pleaded case statutory claim claim entirety clearly time according authority appropriate dispose advance trial entire proceeding turn affect consideration prospect appellant ordered provide security appeal would effectively denied view therefore interest justice case require refusal present application ordered application filed 23 september 2021 refused ordered order cost application

Queensland Cement v Commissioner of Stamp Duties [1995] QCA 315 (1 August 1995).txt

queensland cement v commissioner stamp duty 1995 qca 315 1 august 1995 last updated 23 march 1999in court appealsupreme court queenslandbrisbanebefore fitzgerald p ambrose j helman j queensland cement v commissioner stamp duty national australia bank v commissioner stamp duty appeal 24 1995between queensland cement limited appellant appellantand commissioner stamp duty respondent respondentappeal 25 1995between national australia bank limited appellant appellantand commissioner stamp duty respondent respondentreasons judgment courtjudgment delivered 01 08 1995the commissioner stamp duty stated two case raising question determination court pursuant 24 thestamp act1894 case relates transaction asks question relation instrument presumably course followed party transaction appealed commissioner assessment duty 23 june 1992 national australia bank limited bank wrote queensland cement limited qcl offering financial accommodation printed document described bill facility letter offer dated day signed bank attached letter 23 july 1992 qcl wrote bank follows banking facilitieswe refer correspondence dated 23rd june 1992 regarding offer banking facility queensland cement limited subsidiary advise facility accepted suggested documentation referred bank letter attachment 23 june 1992 referred enclosed qcl letter 23 july 1992 present significance letter bank offered qcl overdraft limit 2 500 000 multi option facility including bill accepted discounted fixed floating bill accepted term loan guarantee bank standby letter credit market rate advance limit 170 000 000 various term set bank letter respect overdraft e g specifying line fee calculated percentage payable quarterly arrears limit peak debt whichever greater letter bill facility letter offer relation multi option facility including fee interest rate etc although attention drawn passing various aspect document seems nothing drawn present purpose qcl letter contain express promise make payment bank end seemed accepted contained implicit promise pay various fee amount became liable bank utilisation facility pay interest etc accordance bank letter bill facility letter offer commissioner assessed bank letter qcl letter ad valorem duty 10 000 reference amount overdraft limit 2 500 000 reliance upon section 65 68 stamp act 1894 part first schedule act heading mortgage bond debenture covenant according paragraph 9 stated case basis two letter constituted debenture issued qcl provision relied upon commissioner ass bank letter attached bill facility letter offer qcl letter ad valorem duty 680 000 basis three document constituted debenture issued qcl court without objection appellant commissioner sought alternatively support total assessment 690 000 reference total two limit basis qcl letter debenture issued consideration aside common ground none document severally combination constituted debenture unless debt respective amount total debt aggregate amount qcl bank acknowledged created qcl letter 23 july according appellant debt debt specific acknowledgment promise pay express e set qcl letter implied however unnecessary consider submission commissioner argument depends upon acceptance proposition upon qcl forwarding letter bank became contingently indebted bank respect amount overdraft limit multi option facility limit submitted money payable upon contingency payable purpose material provision thestamp act appellant dispute latter proposition argued exercise right utilise financial accommodation facility offered bank qcl without obligation qcl fully partially happening contingency reliance placed decision english court appeal inknights deep ltd v inland revenue commissioner 1900 1 q b 217 commissioner sought distinguishknights deepand submitted cannot distinguished inconsistent withindependent television authority associated rediffusion ltd v inland revenue commissioner 1961 c 427and long line authority following decision house lord case first step commissioner argument submission decision inknights deepturned construction document consideration correct sense commonly occurs necessary court construe document determine effect significant present purpose construction accorded document gave company issued acknowledged debenture redeemable 100 option early repayment higher sum even increased obligation regarded contingent exercise right early repayment decision duty payable specific sum payable event contingency happen entirely consistent withindependent television authority however commissioner submitted thatindependent television authorityand subsequent case also established specific sum payable unless contingency happens amount payable event money payable purpose material provision stamp act unnecessary present purpose consider scope principle extends performance interdependent obligation prospective payee example asindependent television authoritymakes plain however authority told extends principle exercise option borrow otherwise become subject obligation make payment knight deepis clear authority contrary decision case made basis contingent liability higher amount basis liability additional amount might become payable collins l j said p 222 debenture cannot said security anything payable option obligors entirely correct principle see e g placer development ltd v commonwealth australia 1969 hca 29 1969 121 c l r 353 accordingly opinion documentation relied commissioner create acknowledge debt qcl bank either overdraft limit limit multi option facility therefore debenture commissioner seek support assessment basis establish instrument otherwise liable duty accordingly question determination court case stated answered follows said instrument annexures b c hereto liable charged duty amount assessed commissioner b said instrument liable charged duty amount c cost incidental stating case appeal thereon borne paid commissioner stamp duty court appealsupreme court queenslandbrisbane queensland cement v commissioner stamp duty national australia bank v commissioner stamp duty appeal 24 1995between queensland cement limited appellant appellantand commissioner stamp duty respondent respondentappeal 25 1995between national australia bank limited appellant appellantand commissioner stamp duty respondent respondentfitzgerald p ambrose j helman j judgment delivered 01 08 1995reasons judgment courtquestions determination case stated answered follows said instrument annexures b c hereto liable charged duty amount assessed commissioner b said instrument liable charged duty amount c cost incidental stating case appeal thereon borne paid commissioner stamp duty catchword stamp duty liability stamp duty 24stamp act1894 whether correspondence constituted debenture within first schedule actcounsel j muir q c j mcgill appellant queensland cement limitedr w gotterson q c h alexander appellant national bank limitedg j gibson q c g j koppenol respondentsolicitors feez ruthning appellant queensland cement limitedmallesons stephen jaques appellant national australia bankcrown solicitor respondentdate hearing 12 july 1995

Arthur & Ballantine [2014] FamCA 175 (22 March 2016).txt

arthur ballantine 2014 famca 175 22 march 2016 last updated 4 april 2016family court australiaarthur ballantine 2016 famca 175family law child interim arrangement party status quo six night per fortnight husband child 18 month husband want seven night week arrangement wife want four night one week two next importance night irrelevant stability status quo remain family law act 1975 cth applicant mr arthurrespondent m ballantinefile number dgc2866of2013date delivered 22 march 2016place delivered melbourneplace heard melbournejudgment cronin jhearing date 17 march 2016representationcounsel applicant m jenkinssolicitor applicant taussig cherrie fildescounsel respondent mr duckettsolicitor respondent mackinnon jacob lawyersorders 1 order child b born 2003 c born 2006 e born 2009 live father follows school term week conclusion school thursday 9 00am thursday school day 9 00am following sunday b one half school term holiday period first half school term holiday 2016 similar period alternate year thereafter commencing 10 00am first sunday holiday concluding 10 00am middle monday holiday andii second half school term holiday 2017 similar period alternate year thereafter commencing 10 00am middle second monday holiday concluding commencement first day school c one half long summer holiday period 2016 2017 similar period alternate year thereafter first week long summer holiday commencing 10 00am first sunday similar period alternate week thereafter andii 2017 2018 similar period alternate year thereafter second week long summer holiday commencing 10 00am second sunday similar period alternate week thereafter four day easter holiday period part school term holiday 2016 similar period alternate year thereafter 5 00pm easter saturday 5 00pm easter sunday andii 2017 similar period alternate year thereafter 5 00pm easter sunday 5 00pm easter monday e father day year 5 00pm day father day commencement school day father day 9 00am school day 2 child live wife period covered 1 order 3 father time suspended period time described paragraph 1 ensure child spend time wife specifically mother day year 5 00pm day mother day commencement school day mother day 9 00am school day 4 avoidance doubt school holiday period long summer holiday commence first sunday last day school child attend 5 avoidance doubt father time spent order suspended recommence school holiday period long summer holiday rotation time interrupted school holiday long summer holiday 6 event changeover take place school shall occur father home conclusion time child mother home conclusion time child 7 extant application final order adjourned date fixed listed trial judge due course 8 interim order sought husband application filed 21 december 2015 interim order sought wife contained response filed 7 march 2016 otherwise dismissed 8 interim parenting order document proposed father mother handwritten proposal response thereto attached file remain exhibit future purpose notedthat publication judgment court pseudonymarthur ballantinehas approved chief justice pursuant tos 121 9 g thefamily law act 1975 cth family court australia melbournefile number dgc 2866 2013mr arthurapplicantandms ballantinerespondentreasons judgmentmr arthur husband m ballantine wife divorced 2014 convenience disrespect shall refer reason husband wife immediate issue determination husband time party four child aged almost 13 year twin aged seven year indication significant conflict husband wife cannot agree holding order arrangement trial court detail reason shall set history party litigation needle say however primary focus determination court required make proceeding senior registrar list 15 march 2016 point wife represented whilst husband represented counsel husband relied affidavit filed 21 december 2015 wife responded affidavit 7 march 2016 lateness receipt affidavit husband needed respond document lengthy application adjourned 17 march 2016 17 march 2016 wife appeared counsel husband change material relied upon wife husband filed affidavit effectively indicating whether admitted denied many allegation made wife 7 march affidavit notwithstanding position shall refer counsel wife indicated dispute husband child six day per fortnight structure issue existing arrangement husband care child three day week always position october 2014 husband seven night per fortnight complaint affidavit wife unilaterally reduced time six night per fortnight three main issue determined first party revert seven night per fortnight six night per fortnight different constellation existed since october 2014 secondly structure school holiday circumstance agreement half problem relates structure day thirdly party seek equal shared parental responsibility wife seek restricted sole responsibility child education health reason follow status quo maintained respect weekday contact three day week continuation current structure secondly respect holiday husband position make sense best child thirdly case court could make finding rebut presumption apply presumption equal shared parental responsibility continue unless otherwise altered future court party sought voluminous order constructive discussion counsel eliminated contentious practitioner requested provide minute order consent thus reason deal issue dispute backgroundas gleaned husband wife separated long time ago indeed october 2012 also indicated application court filed husband 21 december 2015 party first contact court apart divorce heard june 2014 property order made consent 14 october 2013 would appear issue associated child contentious time might inference drawn affidavit wife filed 7 march 2016 one anything divorce application husband described arrangement parent child four night per week wife three night per week day time arranged mutual consent court granted divorce record show finding registrar thats 55a 1 b thefamily law act 1975 cth act satisfied 21 december 2015 husband sought interim final parenting order seems precipitated 2016 school enrolment issue gone away become relevant however respect parental responsibility reason follow 2012 husband sought interim order leaving aside wide ranging ancillary issue child alternate week wednesday sunday thursday sunday respectively proceeding came registrar mestrovic 16 february 2016 mother appeared despite extensive negotiation dispute remained unresolved wife time filed responding material registrar adjourned proceeding senior registrar list 15 march 2016 ordered wife file serve response 8 march indicated 7 march purpose immediate issue wife position six day per fortnight broken four day week 1 two day week 2 basis would give weekend whilst might sound logical difficulty child experienced structure existed best part 18 month would need evidence show arrangement working court alter arrangement best child interim basis hearing 15 march 2016in discussion wife representing suggested two option court one simply adjourn hearing pursued husband private family report could obtained matter come back determination second option determine matter evidence court case sit list awaiting trial judge latter would likely year difficulty second option agreement could reached time child spend husband meantime problem first option guarantee could given solution advice might proffered appointed expert difficulty cost party coming back court circumstance court would put resource determination seemed clear whichever option court took agreement unlikely reached regard nature evidence party put court word expecting party adopt expert social scientist view seemed unlikely spent significant time negotiating matter going 18 month view child need resolution extent party decide attend upon social scientist assistance significant factor suggesting matter adjourned enable proper examination undertaken evidence fact wife affidavit voluminous submission counsel husband contained little would assist court either making finding best child indeed pointing impact change conduct parent child despite truncated hearing paucity evidence court must still regard best interest child paramount consideration deciding interim parenting order made goode goode 2006 famcafc 1346 2006 flc 93 286 ingoode supra full court indicated court identify competing proposal b identify issue dispute c identify agreed uncontested relevant fact consider matter in 60ccthat relevant possible thereafter make finding evidenceas indicated husband filed affidavit 21 december 2015 set happening following separation april 2013 observed wife able come agreement parenting arrangement wife unilaterally reduced time six night per fortnight 15 october 2014 said refused participate mediation process issued certificate unders 60iof act 1 december 2014 despite year went filed application thus extent husband case court revert position agreed separation difficulty child experienced reduced regime year clear impact alteration would court chose increase day six seven per fortnight party live suburb f suburb g respectively latter husband moved closer school enrolled eldest child importance therefore location inconvenient share parenting arrangement earlier made reference catalyst current proceeding must mentioned one important context husband seek equal shared parental responsibility whilst wife seek sole parental responsibility concerning health education husband said education throughout june 2014 may 2015 wife communicating secondary school oldest child indeed reached agreement fell apart according husband wife changed mind unilaterally enrolled child local secondary college parent concern secondary college still went tour husband adopted view end tour local secondary school good choice child husband said wife appeared agree concern proposed private school logistical problem covered private bus service party attended school tour everyone impressed whilst would appear arrangement proceed go private school fell apart may 2015 october 2015 wife unilaterally enrolled child local secondary college indicated issue resolved agreement reached entirely different school mentioned nature occurred schooling justifies finding least stage agreement parent likely difficult future nothing said time issue relating husband child wife affidavit filed 7 march 2016 word although husband complained wife unilateral action reducing time complaint raised affidavit wife said october 2015 child schooling considered said scared tell father felt father moved house near new proposed school quoted child saying want let dad feel guilty dad really excited x school want dad fight want choose side please leave whilst evidence related schooling draw inference related general issue parent child relationship party son poignantly conscious conflict parent desirous involved wife said child told husband showing everything written parent consequence said dad think manipulative lying thing get way right know difficulty evidence whilst husband cannot dispute son made observation denied making statement child doubt social scientist get bottom soon 13 year old explains going household would rather sad regard statement earlier made wished involved affidavit wife included long email husband reply superficial reading show civil communication disagreement december 2015 wife said child said husband told explain wife effectively requiring lie child felt uncomfortable remains something mystery event husband affidavit filed 17 march 2016 replied told son wife reported child said abundantly clear statement thus far follows wife hesitation accepting whatever child tell occurred indeed fact party put sort material affidavit form expose child invidious position hearing pressed counsel wife indicate evidence justified alteration status quo structure submission alteration proposed wife would eliminate tension eliminate potential family violence neither matter could make finding evidence inference relates potential confrontation party handover child status quo child collected school husband returned wife 9 00am sunday obviously opportunity confrontation pointing evidence wife counsel observed parent speak changeover whilst wife tried pleasant communicate husband ignored sure extent confrontation standoff relevance must something pressure child doubt husband capacity care child apart fact wife agreeing maintain six day per fortnight regime went holiday cruise two week december 2015 husband cared child three month ago whatever reason went criticism taken holiday must concluded doubt husband capacity evidence wife described history party relationship nothing recorded helpful determination wife still maintaining best case husband significant time child affidavit however made allegation family violence one 12 year ago oldest child baby issue dispute finding relevance let alone exactly happened cannot made issue appear temporal context relevance also hard see least interim determination reason already mentioned wife referred unpleasant breakdown relationship husband cry screaming rage fact remain untested already indicated continue indicate finding cannot made wife also criticised husband management household finance seems resolved final consent order made 2013 curiously 2013 wife attempted rekindle relationship joint trip country h seems unsuccessful separation occurred thereafter wife set role care child much must seen little relevance occurred since separation wife accused husband hacking message husband denied done 2013 wife said husband behaviour screaming one moment saying loved next accused denigrating replied true mid late 2014 husband said hit garden ornament knocked head rage denied would seem wife evidence intends assert child embroiled conflict asserts child tell thing father say remains seen consider appropriate make finding husband admit conversation even occur unclear impact child wife referred incident august 2015 follows appears sort altercation husband brother three four child home husband living child told mother argument involving yelling profanity husband telling child go upstairs followed crashing banging noise child told mother frightened cry husband admitted brother physical fight husband said oldest child home girl upstairs seems disagreement business issue resolved animosity fact incident occurred august child frightened must put context substantial time husband child since importantly wife absence holiday time december view evidence need fleshed detail cross examination would conclude basis determine time child spend father importantly structure time affidavit sworn day hearing wife said told tension husband family remains report child disconcerting issue still raised wife child need examined circumstance child proffer explanation given wife also referred photograph dispute matter need careful attention property jurisdiction may finalised property order made 2013 accordingly nothing interim basis relation contact husband child wife went make reference husband work commitment inability negotiate husband fact ignores clothes returned changeover dispute school holiday time regard limited nature dispute none evidence great significance paragraph 86 affidavit wife made reference child conduct overt sexual nature raised issue husband said dismissed concern approached child informed learned oral sex watching pornography father house whilst husband deny general problem occurred conversation taken place wife denied said anything child speaking wife apparently fact watched sort sexually oriented film difficult court know exactly mean dispute exactly occurred like much evidence case court cannot make finding exactly happened may become parental responsibility issue explanation given child almost 13 year age exposed sort adult content wife referred fact husband refused answer phone call consequence hardly spoken husband response preferred correspond wife writing one example difficulty party face view make difference determination november 2015 one child told wife cut thigh scissors trying shave tree branch went hospital required glued wife complained husband made attempt tell became aware changeover husband minimised saying serious certainly serious issue true husband said cut le one centimetre length attended hospital inquire tetanus shot said medical staff surprised brought child hospital seems matter objectively tested examination hospital record three half month incident wife called evidence hospital show serious portrayed husband importantly also refer wife holiday period clearly part wife case husband disappointed ending relationship one child according wife expressed distress separation husband child indicated past desire speak father daily perception wife perspective child becoming parentified basis open possibility would unsafe court draw inference along line particularly wife still agreeing child six night per fortnight husband care wife case husband feeling transferred child inappropriately exposing adult topic grief separation whilst wife opinion admissible evidence virtue division 12a act bearing mind gone party conflictual nature relationship also evidence satisfied would unwise court drawing adverse inference stage importantly view would unwise court draw inference impact parental conflict upon child husband filed affidavit simply denying much precise conversation wife child clear whether denial relates fact conversation taken place wife rather taken place need tested ultimately evidence wife turned described child requirement routine stability much period separation involving move husband would appear took view standard living adopted husband clearly example wife complained child minimal homework husband consequence lot catch work b youngest child speech pathology recommended program carried husband c piano practise oldest child undertaken child returned tired indicating stayed late father whereas strict bedtime routine reply husband denied every one allegation fact objectively tested husband filed affidavit view fact contested court descend guessing importantly issue mentioned appear affected structure distinct time husband child problem still whatever time child significant notice however notwithstanding agreement six night per fortnight nothing positive note said wife time somewhat disconcertingly referred complaint said child made father behaviour nothing said wife child might react alteration time enjoyed father year turn back approach earlier set requirement described full court ingoode supra party respective proposal earlier identified difference marginal structure relation week time weekend dispute holiday period husband case wanted first half school holiday 10 00am sunday 10 00am midpoint day even numbered year second half holiday 10 00am middle monday concluding commencement school second half term holiday 2017 case pattern would follow alternate year wife case holiday equally shared changeover take place 10 00am middle saturday argument applies respect summer holiday husband position one half agreement default agreement week basis changeover occurring 10 00am various sunday wife position monday proposed minute note mother proposal reference made need include child always spend last overnight start term mother entirely sure evidence enlighten need presumably husband position attend school seems party difficulty time suggestion husband cannot get child school wednesday thursday friday far structure therefore concerned clear evidence show particular structure best suit child might principle law requires structure sorted particular way issue question best interest child evidence school expressed concern tiredness expert indicated problem ancillary issue piano speech pathology identified issue factual matrix case one thing clear unashamed conflict parent impact child development remains unknown husband perspective well fact party agree endeavoured set practicable accordingly turn thes 60ccfactors also important refer provision legislation guide court section 65d 1 provides proceeding parenting order court discretion guided various part legislation make order think proper court exercise power best interest child also necessary particular circumstance prevail determining best interest various consideration in 60ccneed taken account section 61da 1 provides making parenting order relation child court must apply presumption best interest child child parent equal shared parental responsibility section 61da 3 provides court making interim order presumption applies unless court considers would appropriate circumstance presumption applied making order view notwithstanding fact party separated long time unofficial arrangement relation parenting child number year case evidence support conclusion shared parental responsibility arrangement altered unless court order otherwise parent child turned 18 year age parental responsibility child parental responsibility 61b mean relation child duty power responsibility authority law parent relation child nothing evidence wife indicated husband desire participate decision making process associated child seen vigorously negotiated situation relation schooling nothing evidence cut required attendance hospital indicates desire involved health child would therefore significant step court intervene restrict remove obligation well right parent circumstance particularly regard tos 61da 3 circumstance court cannot make proper finding matter would enable court decide whether responsibility likely properly exercised mention fact provision 61dac act cannot met court interim basis apply presumption view law continue prevail therefore party continue equal shared parental responsibility court order otherwise accordingly court need make order absent making order court need address thes 65daaconsiderations turning question best interest child provision ofs 60ccapply find know view child described wife whether would keen change structure nature relationship child parent seems sound clear parent significant role life child even stumbling block since separation decision making respective unhappiness conduct disputed fact child support maintenance child court position make finding importantly know impact may child order made inconsistent status quo would unwise speculate bearing mind contested nature fact andalthough wife seems say husband problem capacity provide need child physically emotionally oppose six day per fortnight may dispute simply lifestyle choice accordingly focus need whether continuation existing regime prejudicial child identified respective proposal issue also defined unashamed conflict parent impact remains unclear view basis court alter status quo evidence indicate working appropriately child may necessarily satisfactory either parent point view one consideration best interest child must paramount consideration absent evidence view structure altered respect specific time earlier indicated specific way resolving issue accordingly simply propose adopt position set husband seems provide machinery holiday period prejudice either party extent need reargued occur year time word three four holiday period involved presumably prior trial case party child live temporary arrangement section 60ccalso requires court consider primary consideration consideration already dealt described additional consideration first two primary consideration in 60ccis importance child benefit meaningful relationship parent view happening second consideration relates protecting child subjected exposed abuse neglect family violence whilst wife affidavit littered complaint know much could genuinely said family violence abuse importantly whether child exposed rudeness may necessarily amount family violence whereas denigratory behaviour might court position make finding fact particular case case therefore propose make order set commencement reason certify preceding seventy two 72 paragraph true copy reason judgment honourable justice cronin delivered 22 march 2016 associate date 22 march 2016

N98_24181 [2000] RRTA 993 (25 October 2000).txt

n98 24181 2000 rrta 993 25 october 2000 refugee review tribunaldecision reason decisionrrt reference n98 24181n98 24181n98 24181country reference burmaburmaburmatribunal member roger gibsondate decision made 25 october 2000place sydneydecision tribunal affirms decision grant protection visa background1 applicant citizen burma arrived australia applicant lodged application protection visa department immigration multicultural affair themigration act 1958 act delegate minister immigration multicultural affair refused grant protection visa applicant applied review decision16 august 200016 august 2000 legislation2 undersubsection 65 1 act visa may granted decision maker satisfied prescribed criterion visa satisfied criterion grant protection class az visa set insection 36of act inpart 866of schedule 2 migration regulation force immediately 20 october 1999 3 subsection 36 2 act provides criterion protection visa applicant visa non citizen australia australia protection obligation refugee convention amended refugee protocol refugee convention refugee protocol defined mean 1951 convention relating status refugee 1967 protocol relating status refugee respectively subsection 5 1 act 4 australia party refugee convention refugee protocol generally speaking protection obligation people refugee defined refugee convention5 article 1a 2 convention defines refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return 6 high court considered definition number case notablychan yee kin v minister immigration ethnic affair 1989 hca 62 1989 169 clr 379 applicant anor v minister immigration ethnic affair anor 1997 190 clr 225 andminister immigration ethnic affair v guo anor 1997 191 clr 559 7 inguo case court observed definition contains four key element first applicant must outside country element issue present matter 8 second applicant must fear persecution every threat harm interference person right convention reason constitutes persecuted inchan casemason cj referred persecution requiring serious punishment penalty significant detriment disadvantage case mchugh j said notion persecution involves selective harassment appropriate case may include single act oppression serious violation human right measure disregard human dignity persecution may directed person individual member group persecution must official quality sense official officially tolerated uncontrollable authority country nationality persecution implies element motivation part persecute infliction harm people persecuted something perceived attributed persecutor 9 third persecution applicant fear must one reason enumerated convention definition race religion nationality membership particular social group political opinion phrase reason serf identify motivation infliction persecution 10 fourth applicant fear persecution convention reason must well founded fear add objective requirement requirement applicant must fact hold fear person well founded fear persecution convention genuine fear founded upon real chance persecution convention stipulated reason fear well founded real substantial basis merely assumed mere speculation real chance one remote insubstantial far fetched possibility person well founded fear persecution even though possibility persecution occurring well 50 per cent 11 addition applicant must unable unwilling fear avail protection country country nationality applicant stateless must unable unwilling fear return country former habitual residence whenever protection applicant country available ground based well founded fear refusing person concerned need international protection refugee 12 whether applicant person australia protection obligation assessed upon fact exist decision made requires consideration matter relation reasonably foreseeable future claim evidencegeneral13 tribunal department file includes protection visa application document written submission support application tribunal also written submission support application review material provided support application review 14 applicant burmese buddhist born town burma educated town town b resulting diploma employed various occupation state occupation professional person married 1980 child wife child remain burma state lived several place 15 year period 15 applicant left burma burmese passport arrived australia travelling visitor visa valid 3 month study date entry single travel claimsprotection visa application16 applicant claim danger go back burma told friend uncle military personnel asked whereabouts claim jail wish suffer claim member national league democracy nld state government harassed threatened persecuted member nld claim party announced convening big meeting government started detain member claim employment private company stopped authority chasing claim family safe remote location 17 applicant claim involvement pro democratic activity australia probably known burmese government activity together political activity burma mean harmed return answer question 36 protection visa application18 applicant claim left burma great fear persecution would detained tortured social law order restoration council slorc claim sacked government job many year service due active participation pro democracy movement claim detained authority town length time claim lost apartment rangoon military government demolished house specific area considered troublesome claim apartment situated near area local ward people secretly gathered 19 state burmese government violates human right demolished house unit claim participated supported decision nld celebrate anniversary victory election claim slorc came due latest participation meeting decided leave country statutory declaration support protection visa application20 applicant claim sacked job leading role activity government 1988 unrest burma claim actively participated leader democracy movement nld 1988 claim participated demonstration rangoon 21 struggle claim informed mother sick returned town look father became involved association claim become member association participated anti government activity town claim sacked job following month 22 sacked applicant claim returned town lived parent claim father arrested security force involvement collecting donation unrest claim held jail period time interrogated many day torture threat especially night time due lack evidence released 23 applicant returned rangoon claim secretly assisted leader nld town become member nld carried task receiving important letter important information passing nld party rangoon couple year later applicant claim obtained job chosen profession following year claim apartment requisitioned military 24 several year later applicant claim become involved company owned relative rangoon allowed involved political activity claim relative organised paid passport applicant claim involved various special task organise nld meeting duty included distribution pamphlet one day applicant claim taking child doctor rang home told military intelligence come looking claim fled staying friend house sending wife child home decided leave country already happened visa australia left rangoon country help friend relative travelled australia 25 applicant claim return burma arrested tortured given long jail sentence involvement politics government working nld stated would produce necessary document due course documents26 support application applicant provided following document partial copy applicant passport copy translation internal office order evidence putative dismissal service copy translation applicant birth certificate two photograph applicant evidence involvement pro democracy protest australia review application27 applicant claimed delegate decision wrong stated separate statement follow statement received invitation tribunal hearing28 tribunal wrote applicant advising considered paper relating application unable make favourable decision information alone tribunal invited applicant give oral evidence present argument hearing applicant advised tribunal wanted give oral evidence change address 29 tribunal contacted applicant adviser office let adviser know applicant requested female interpreter hearing inform female interpreter available tribunal informed adviser longer represented applicant confirmed writing 30 tribunal called applicant phone number m answered informed tribunal friend applicant informed tribunal applicant live address permission used address phone number place receive mail phone message know willing inform tribunal applicant address phone number 31 applicant attend hearing contact tribunal explain failure attend circumstance pursuant 426a act tribunal decided make decision review without taking action enable applicant appear independent informationgeneral32 u department state reported burma ruled highly authoritarian military regime 1997 junta changed name slorc state peace development council spdc government continued headed armed force commander general shwe although ne win thought wield informal declining influence throughout 1990s junta systematically violated human right burma suppress pro democracy movement including nld thwart repeated effort representative elected 1990 convene instead junta convened government controlled national convention intended approve constitution would ensure dominant role armed force country future political structure since 1995 nld declined participate national convention perceiving agenda tightly controlled junta judiciary independent junta 33 according report since 1988 junta doubled size armed force increased government military presence throughout country reinforces firm military rule pervasive security apparatus led military intelligence organisation directorate defence service intelligence ddsi control buttressed arbitrary restriction citizen contact foreigner surveillance government employee private citizen harassment political activist intimidation arrest detention physical abuse government justifies security measure necessary maintain order national unity member security force committed numerous serious human right abuse 1999 34 government extremely poor human right record longstanding severe repression citizen continued year citizen continued live subject time without appeal arbitrary sometimes brutal dictate military regime citizen right change government continued credible report soldier committed serious human right abuse including extrajudicial killing rape 35 disappearance continued member security force tortured beat otherwise abused detainee prison condition remained harsh life threatening improved slightly prison international committee red cross gained access prison may 1999 arbitrary arrest detention expression dissenting political view continued increasing frequency government continued detain 55 member elect parliament hundred nld supporter prevent party convening parliament elected 1990 36 since 1962 thousand person arrested detained imprisoned political reason 1 300 political prisoner remained end 1999 government continued infringe citizen privacy right security force continued systematically monitor citizen movement communication search home without warrant relocate person forcibly without compensation due process 1999 suspected charged pro democratic political activity subjected increased surveillance harassment u department state 1999 country report human right practice burma 25 february 2000 july 1995 international pressure aung san suu kyi released house arrest far east australasia 1997 myanmar burma 1996 europa publication london national league democracy nld 37 24 september 1988 aung gyi tin u aung san suu kyi form national league democracy nld nld registered political party 27 september 1988 bertil lintner outrage burma struggle democracy white lotus 1990 monitoring citizen within burma38 andrew selth burma specialist australian national university reported observed burmese authority network secret intelligence service monitor people exaggeration say directorate defence service intelligence military intelligence service one agency burma spy virtually every street corner country mcphedran canberra time 18 august 1997 cx25011 39 australia department foreign affair trade dfat reported 1995 household check middle night authority regular feature life burma citizen resident household required registered address order reside registration card required held household check found registered resident residing location unregistered guest residing remaining resident would required explain department foreign affair trade dfat cable ra7682 23 june 1995 cx 9489 40 year dfat reported burma continues pervasive security apparatus intrudes generally civilian life extent person outside senior military face level discrimination example access service health education travel etc person required report local authority staying overnight permanent residence even example one night visiting relative requirement often ignored extent monitoring reporting dobbing would make extremely difficult able continually avoid attention authority dfat human right update 28 january 2000 cx39784 political detention41 according tessa piper political imprisonment affect men woman age variety walk life public documentation arrest many detained never formally charged tried slorc denied holding political prisoner october 1989 april 1992 amnesty international observed unofficial source claimed 3 000 people detained political reason second half 1989 alone nevertheless april 1992 december 1993 2 000 political prisoner released declaration 11 92 stated political prisoner deemed threat national security would released 1994 highly effective surveillance system use threat intimidation used deter public opposition many imprisonment remained important tool repression refworld 1994 section 2 42 provision law judicial determination legality detention spdc routinely practiced arbitrary arrest incommunicado detention prior charged detainee rarely access legal counsel family political detainee opportunity obtain release bail political detainee held incommunicado long period even charged detainee rarely benefit counsel political prisoner released completing sentence u department state 1999 country report human right practice burma 25 february 2000 43 according u state department 1999 burmese authority continued detain private citizen political activist continued disappear temporarily hand security force government continued arrest detain convict imprison many person non violently expressing attempting express political opinion critical junta military rule distributing possessing publication opinion expressed addition security service continued monitor harass intimidate person believed hold political opinion many person refrained speaking due fear arrest interrogation form intimidation u department state 1999 country report human right practice burma 25 february 2000 44 dfat report many political activist released prison interrogation sign undertaking local administrative office student institution would get involved future anti government activity dfat myanmar request information refugee burma profile cable ra1782 1 february 1995 cx9957 exit burma45 dfat report say burmese passport issued burmese citizen burma passport regulation 1948 state person receive burmese passport reasonable ground apprehending presence country abroad would dangerous prejudicial interest burma issuing authority satisfied applicant unquestionably fit proper person receive passport passport issued however payment bribe passport common practice burma security check may exclude dissident receipt passport may bypassed exceptionally large bribe 46 would also relatively easy person cross border land using false passport photo substituted stolen passport readily available border crossing immigration checking relatively casual bypassed completely hand immigration control rangoon strict would difficult person false passport negotiate departure processing requirement obtain necessary immigration documentation pas airport check dfat 1996 country profile burma para 2 6 1 3 47 burmese citizen issued business passport hold passport issued specific reason including visiting relative overseas medical treatment employment business etc application take several month process common payment u 500 700 made secure expeditious issue 3 4 week especially applicant going abroad employment fee may paid broker shepherd application various administrative step dfat cable ra7927 11 september1995 cx11549 48 dfat heard anecdotally senior member nld refused passport travel overseas hand slorc sometimes inclined encourage departure dissident intention denying subsequently entry burma principal difficulty burmese citizen face gaining exit burma related bureaucratic procedure cost associated securing passport issue dfat experience difficulty function ethnicity factor relating political activity belief dfat cable ra7927 11 september1995 cx11549 49 however government carefully scrutinised prospective travel abroad produced rampant corruption many applicant forced pay large bribe obtain passport otherwise entitled official board review passport application denied passport case apparently political ground u department state 1997 country report human right practice burma 30 january 1998 section 2 freedom movement within country foreign travel emigration repatriation 50 recently burmese staff australian embassy rangoon advised follows political activist would allowed travel abroad return almost certainly high profile political prisoner might find difficult finished sentence permitted leave country lower profile activist authority le interested dfat report 094 9 june 2000 51 according dfat average amount purchase passport illegally kyat 25 000 30 000 au 125 150 take month kyat 50 000 au 250 take week includes necessary clearance dfat country information report information current situation respect passport issue departure burma 285 00 2 june 2000 cx42364 political activity abroad52 according 1994 report dfat burmese whether citizen holder foreign passport currently active anti government activity overseas member anti government organisation well looked upon government low level participation anti government activity ignored person photographed demonstration would trouble low level occasional participant activity government become willing accept return people last couple year instance many burmese student participated actively 1988 demonstration left thailand 1990 subsequently active even prominent anti slorc organisation according embassy applied permitted return without suffering form harassment long abstain political activity embassy said sometimes monitored treatment person verified harassment similarly burmese citizen worked bbc burmese programme strongly critical burmese government allowed return burma without problem dfat cable ra1782 1 february 1994 cx9957 53 recently dfat reported burmese involved demonstration australia whilst often known authority generally little concern even return burma would couple exception repetitive demonstrator active high profile member absdf ncgub ringleader violent attack embassy canberra september 1999 exception burmese returning burma lengthy period australia elsewhere matter would come attention local township authority movement may monitored initial period escorted deportation australia result returnee detained questioning unless departed burma illegally recent profile burma active absdf ncgub unlikely face problem dfat human right update 2000 cx39784 54 according even recent dfat advice burmese involved demonstration australia whilst often known authority generally little concern even returned burma dfat processing passport renewal application cir 113 00 15 march 2000 cx41129 activist period 1988 pro democracy uprising would treated differently broader population face persecution discrimination today unless continued known still actively working opposition government even level activity would taken account registered political party member face greater surveillance general population last two year example political detention imprisonment part limited parliamentarian elect associated call nld establishment committee representing parliament ringleader activist student demonstration august 1998 ringleader calling demonstration september 1999 publisher anti government material dfat human right update 28 january 000 cx39784 55 however andrew selth academic former visiting fellow anu strategic defence study centre recently warned treatment individual depends much circumstance detailed dossier kept large number individual commented known case people confronted dossier dossier prepared intelligence agency staggered see fact got record activity dating back year aware nothing seemed done time 56 risk factor cumulative referred example seen demonstration outside embassy family member known dissident father sacked reason brother arrested something spending time country seen anti government threatening country latter category included australia regarded country harbour burmese genuinely threatening regime therefore require closer surveillance therefore deemed identified perhaps potentially dangerous people demonstrated somewhere else 57 relevance view expressed dfat last two year largely ringleader parliamentarian elect imprisoned detained political reason mr selth observed people rounded people put gaol people gaol burma could ever constitute potential leader particularly targeted rrt burma workshop transcript current political situation burma burmese intelligence apparatus 2 june 000 pp 14 15 26 58 secretary friend nld also asked tribunal place weight optimistic report dfat situation burma conflict interest dfat foreign policy trade interest burma actual situation reported applicant protection visa many credible international agency claimed arbitrary arrest sentencing continue little redress defendant law enacted military enforced police government official prevent anti government political activity activist matter minor taken task stated common practice military provoke young people kind reaction simply provide excuse arrest detention released sign declaration partake political activity breach commitment punishable heavy sentence common pattern treatment member burmese community trouble military regime able contact give evidence australian embassy official constant surveillance would arrested attempt made false imply freedom country evidence australian embassy official facility freedom investigate welfare activist burma applicant protection visa forced return burma trevor edmond secretary friend nld australia inc letter rrt 2000 undated 59 co ordinate australia burma council described process burmese must go entry burma advised back house inform office local peace development council authority tell name day year left burma country time spent country sic reason stay country involvement anti government activity plus another 20 question answer detail answer sent military intelligence office report embassy activist country name anti government activity report sooner later pick interrogation release watch time burma anyone arrested tortured persecuted view military authority someone took active part pro democracy movement australia go back burma taking huge risk weather get trouble anyone guess sic terrel oung central international co ordinator australia burma council letter rrt 30 may 2000 finding reasonsgeneral60 mere fact person claim fear persecution particular reason establish either genuineness asserted fear well founded reason claimed remains applicant satisfy tribunal statutory element made miea v guo anor 1997 191 clr 559at 596 although concept onus proof appropriate administrative inquiry decision making yao jing li v mima 1997 fca 289 1997 74 fcr 275at 288 relevant fact individual case supplied applicant much detail necessary enable examiner establish relevant fact decision maker required make applicant case prasad v miea 1985 fca 47 1985 6 fcr 155at 169 70 luu anor v renevier 1989 fca 518 1989 91 alr 39at 45 tribunal required accept uncritically allegation made applicant randhawa v miea 1994 fca 1253 1994 52 fcr 437at61 applicant claim involved political activity burma australia claim wanted arrest time left burma fear arrest torture return burma considered account consider plausible applicant claim politically active prior departure burma claim political activism australia applicant availed opportunity attend hearing opportunity discus doubt seek explanation additional detail claim political activity 198862 applicant claim played leading role activity government 1988 actively participating group leader democracy movement national league democracy nld party unrest demonstration rangoon august september 1988 independent evidence paragraph 37 accept indicates nld formed 24 september 1988 week demonstration unrest august september 1988 military coup 18 september 1988 registered political party 27 september 1988 applicant claim clearly inconsistent information therefore unable accept applicant claim credible regard satisfied applicant group leader nld period 63 applicant explanation participation unrest inconsistent claim leading role unrest time independent information paragraph 32 36 accept indicates widespread civil unrest burma throughout 1988 hundred thousand people involved involved minor way consequence great difficulty many leading activist arrested detained almost immediately military took 18 september 1988 many rounded subject summary execution prolonged detention torture lengthy imprisonment applicant claim involvement rangoon brief vague general term display knowledge beyond ordinary participant onlooker unrest time based applicant evidence independent evidence unable accept applicant participated unrest time claimed 64 claim relating activity town similarly vague general term difficulty establishing fact even accept father fact arrested released lack evidence period detention interrogation clearly inconsistent applicant claim leading activist unrest rangoon group leader nld considering vague general nature evidence unable accept applicant father came attention authority town arrested detained interrogated released 65 respect applicant claim dismissed public service job merely indicates one many public servant failed loyalty questionnaire administrated military regime independent evidence accept indicates many public servant subject weeding process subsequent military takeover 15 000 failed dismissed demoted unable accept fact applicant dismissed public service necessarily indicates participated unrest august september 1988 merely failed loyalty questionnaire political activity 198966 applicant claim became member nld party year secretly assisted name president nld party town evidence inconsistent previous evidence applicant group leader nld unrest august september 1988 applicant also claim passed important party information town rangoon branch nld applicant claim lacking detail vague general regard unable establish fact claim considering applicant claim participated activity several year able give detail participation demonstrate knowledge party activity structure unable accept applicant participated political activity claim 67 regard applicant claim apartment rangoon requisitioned military satisfied claim convention connection requisition land commonplace especially burma applicant account requisition military reclaimed demolished apartment consistent number reason unable accept requisition demolition applicant apartment burmese authority convention reason political activity recently68 applicant claim become acting director company applicant claim involvement nld increased became involved various special task organise nld commemorative meeting task involved distribution pamphlet claim duty regard meeting caused come attention wanted arrest authority consequence go hiding applicant claim respect general lacking detail unable establish fact taking account unable accept previous claim political involvement credible unable accept credible applicant claim member nld involvement organisation commemorative meeting go hiding came adverse attention authority 69 similarly unable accept claim applicant went hiding making use passport australian visa already possession helped sympathetic custom officer able depart burma without difficulty accept applicant may organised passport may required travel function job may pay bribe facilitate issue passport business reason independent evidence paragraph 45 51 accept indicates burmese citizen business passport hold passport issued specific reason unable accept applicant involved political activity claimed unable accept applicant escape authority attention using passport already 70 applicant availed opportunity attend hearing opportunity discus doubt seek explanation additional detail claim find claim lack detail credibility therefore satisfied applicant well founded fear harm political activity burma political activity australia71 applicant claim involved pro democracy activity australia produced detail participation activity except tender two photograph proof participation demonstration australia however nature context photograph raise doubt veracity photograph appear posed applicant presence subject attention rather activity claim participating case even accepting applicant participated one activity evidence participated pro democracy activity independent evidence paragraph 52 59 accept indicates person identified active anti regime leader consistently participates pro democracy demonstration may face adverse consequence significance return burma applicant profile person 72 light evidence given applicant failed give detail political activity australia unable accept applicant significant involvement political demonstration australia burmese authority would adverse interest applicant availed opportunity attend hearing opportunity discus doubt seek explanation additional detail claim therefore satisfied applicant real chance persecution convention reason return burma summary73 unable accept applicant claim political activity burma leading role pro democracy activity september 1988 participation group leader nld political activity town subsequent arrest interrogation dismissal public service employment membership nld participation commemorative meeting attracting adverse attention authority go hiding illegal departure burma similarly unable accept applicant claim political activity australia accept applicant may participated one pro democracy demonstration australia however unable accept indicates applicant adverse interest authority return burma satisfied applicant well founded fear persecution reason political opinion burma satisfied applicant real chance persecution reasonably foreseeable future return burma conclusion74 considered evidence whole tribunal satisfied applicant person australia protection obligation refugee convention amended refugee protocol therefore applicant satisfy criterion set subsection 36 2 act protection visa decision75 tribunal affirms decision grant protection visa

Samek and Secretary, Department of Social Security [1988] AATA 684 (14 October 1988).txt

samek secretary department social security 1988 aata 684 14 october 1988 last updated 4 july 2008administrative appeal tribunalsocial security asset test invalid wife pension four six week per year spent residence claimed principal home remainder year three successive living situation inverell whether principal home claimed elsewhere social security asset test unsecured debt 16 000 evidenced unregistered instrument claimed secured property toowoomba whether charge encumbrance purpose test social security word phrase principal home social security word phrase charge encumbrance social security act 1947 1987 s 6 6aagustav jillian samekapplicantssecretary department social securityrespondentno n88 474aat decision 4681dr r hayes senior membersydney14 october 1988administrative appeal tribunal n88 474general administrative division gustav jillian samekapplicantsand secretary department social securityrespondentdecisiontribunal dr r hayes senior memberdate 14 october 1988place sydneydecision 1 part delegate decision concern appropriate treatment applicant debt 16 000 affirmed 2 insofar relates question location applicant principal home determination review set aside matter remitted respondent reconsideration following direction house situated 1 tillock street haberfield applicant principal home period camping inverell b house situated 1 tillock street haberfield applicant principal home period residing rented premise inverell c relevant time date hearing matter house situated 1 tillock street haberfield principal home applicant sgd r hayessenior memberadministrative appeal division n88 474 general administrative division gustav jillian samekapplicantsand secretary department social securityrespondentreasons decision14 october 1988 dr r hayes senior memberthe reviewthis application review decision refusing regard property situated 1 tillock street haberfield applicant principal home disallowing unsecured debt 16 000 encumbrance value real estate 60 mabel street toowoomba purpose calculating applicant rate invalid pension wife pension decision made applying asset test existed relevant time subsection 6 3 6 4 6aa 1 paragraph b 6aa 7 6aa 8 thesocial security act1947 1987 applicant claim invalid pension wife pension made 30 march 1987 document provided unders 37of theadministrative appeal tribunal act1975

ALE Heavylift (Australia) Pty Ltd re ALE Heavyliift (Australia) Pty Ltd Enterprise Agreement 2010 [2011] FWAA 2233 (11 April 2011).txt

ale heavylift australia pty ltd ale heavyliift australia pty ltd enterprise agreement 2010 2011 fwaa 2233 11 april 2011 fair work australiadecisionfair work act 2009s 185 application approval single enterprise agreementale heavylift australia pty ltd ag2011 26 ale heavylift australia pty ltd enterprise agreement 2010building metal civil construction industriesdeputy president mccarthyperth 11 april 2011application approval ale heavyliift australia pty ltd enterprise agreement 2010 1 application made approval enterprise agreement known theale heavylift australia pty ltd enterprise agreement 2010 agreement application made pursuant tos 185of thefair work act 2009 act agreement single enterprise agreement 2 satisfied requirement ofss 186 187and188of act relevant application approval met 3 concern regarding hour work agreement undertaking provided employer copy attached agreement bargaining representative agreement indicated support undertaking 4 agreement approved accordance withs 54of act operate seven day date decision nominal expiry date agreement four year date operation deputy presidentprinted authority commonwealth government printer price code g ae885088 pr508357

BCD Technologies Pty Ltd and Commissioner of Taxation [2004] AATA 496; (2004) 56 ATR 1017; 2004 ATC 2071 (19 May 2004).txt

bcd technology pty ltd commissioner taxation 2004 aata 496 2004 56 atr 1017 2004 atc 2071 19 may 2004 last updated 7 september 2009administrativeappealstribunaldecision reason decision 2004 aata 496administrative appeal tribunal qt2003 28taxation appeal division rebcd technology pty ltdapplicantandcommissioner taxationrespondentdecisiontribunalsenior member mccabedate19 may 2004placebrisbanedecisionthe tribunal set aside decision review amended assessment respondent effect sgd senior membercatchwordstaxes duty income tax tax return assessment day made commissioner taxation made nil assessment whether nil assessment assessment purpose s170 2 b income tax assessment act 1936 decision set asideincome tax assessment act 1936commissioner taxation v ryan 2000 hca 4 2000 201 clr 109batagol v commissioner taxation 1963 hca 51 1963 109 clr 243reasons decision19 may 2004senior member mccabeintroductionthe applicant claimed deduction amount 1 165 000 respect management fee paid year income ending 30 june 1996 applicant return lodged november year return said applicant incur taxable income taking deduction account commissioner subsequently conducted investigation issued assessment 20 november 2000 disallowing deduction effect decision leave applicant taxable income 1 163 230 commissioner imposed penalty respect tax shortfall applicant say assessment issued november 2000 came late therefore invalid add deduction claimed properly sought event say penalty imposed commissioner disagrees matter come tribunal resolution reason explain satisfied commissioner assessment issued november 2000 time effect therefore unnecessary deal issue also unnecessary consider provision ofpart ivaof theincome tax assessment act1936

Industrial Relations Commission Decision 979_1989 [1989] AIRC 925; (8 December 1989).txt

industrial relation commission decision 979 1989 1989 airc 925 8 december 1989 industrial relation commission decision 979 1989 m017 dec 979 89 n print j0611 australian industrial relation commissionindustrial relation act 1988s 99notifications industrial dispute commonwealth steamship owner association merchant service guild australia others c 26315 1989 merchant service guild australia others australian national line others c 26861 1989 australian national line others merchant service guild australia others c 36672 1989 conciliation arbitration act 1904 25 notification industrial dispute australian national line others australian institute marine power engineer others c 00612 1983 adelaide brighton cement limited others merchant service guild australia others c 3119 1983 maritime industry seagoing award 1983 1 odn c 00612 1983 seafarer maritime industry commissioner fogarty sydney 8 december 1989 wage rate national wage august 1989 structural efficiency principle agreed change included restructuring award making new award regulate term condition modern vessel reduced manning multiskilling etc principle satisfied award varied 8 december 1989 decision matter listed notification unders 99of theindustrial relation act 1988 formally found dispute exist _ _ 1 print f4185 m017 within meaning act two matter lodged former act gave rise making maritime industry seagoing award 1983 two matter joined 99 matter ensure change made maritime industry seagoing award arising agreement party decision within ambit dispute found exist 99 act relate primarily bringing extensively changed industrial relation arrangement maritime industry flow long standing commitment party industry radical change vital interest industry effective role australian economy respect party stimulated active support government introduction change carried work body tripartite character evidence given extent change agreed upon reference implementation mean ship change relate ship already operating industry ship enter industry future flow department vessel involve example significant lowering crew number multiskilling establishment appropriate career path broadbanding classification revised hour work leading greater flexibility operation establishment salary relativity future element designed achieve greater productivity industry particular importance fact party negotiated atmosphere industrial harmony work thus achieved clearly four concept enhanced structural efficiency espoused commission national wage case decision notably august 1989 2 special credence must given commission arrangement significance party industry able arrive negotiation sentiment endorsed full bench commission aircraft industry qantas airway limited award case 3 dispute referred period time seen date hearing set end decision proceeding party kept commission informed progress making proceeding 7 december placed commission considerable detail arrangement entered respect union involved merchant service guild australia australian institute marine power engineer seaman union professional radio electronics institute seek secure first stage salary increase available august national wage case decision proceeding 7 december party presented amongst material document entitled misa restructuring mimsa became exhibit 5 document useful summary element _ _ 2 print h9100 3 print h9129 going make far reaching change industry party worked together attached decision significance achieved may recognised two important facet party agreed restructuring maritime industry seagoing award 1983 making new award maritime industry modern ship award 1989 4 regulate term condition employment modern vessel reduced manning first restructured award feature detailed arrangement set attachment decision include salary reflecting first stage application commission structural efficiency principle second incorporate new salary structure including also reflection first stage structural efficiency increase studied party achieved put 7 december hesitation approving arrangement entered light commission national wage case principle accordingly restructured new award signed operate beginning first pay period commence 8 december 1989 remain force two year union given commission required commitment appearance b shinners anl limited western australian coastal shipping commission broken hill proprietary company limited cementco shipping proprietary limited csr limited hetherington kingsbury proprietary limited awa limited commonwealth steamship owner association respondent member parmeter commonwealth steamship owner association member company p geraghty fleming f ross h christiansen seaman union australia merchant service guild australia australian institute marine power engineer professional radio electronics institute australasia date place hearing 1989 sydney september 21 november 2 8 17 21 29 december 7 _ _ 4 print j0928 m324 statement maritime industry restructuring misa restructuring mimsa employer maritime union engaged discussion sometime restructuring industrial regulation martime seagoing industry reflect implementation recommendation two tripartite report namely report maritime industry development committee report shipping reform task force negotiation concluded agreement involves two step first restructuring maritime industry seagoing award misa secondly making new award proprosed known maritime industry modern ship award misa regulate term condition employment modern vessel reduced manning first aspect restructuring maritime industry seagoing award consistent recommendation report shipping reform task force structural efficiency principle national wage case august 1989 decision restructuring proposed effect significant change resulting reduction manning existing pre crawford vessel elimination classification electrician radio officer necessary retraining seagoing employee appropriate variation term condition misa area travelling party identified number exisitng pre crawford vessel covered misa remanned towards crawford level manning agreed arrangement manning reduction involve removal approximately 4 rating elctrician radio officer case deck officer berth agreed vessel respect agreed pre crawford vessel remanned towards crawford levesl manning party agreed appropriate rate reflect change involved remanning existing pre crawford vessel toward crawford level second aspect total restructuring industrial regulation maritime seagoing industry involves making new award known maritime industry modern ship award award intended apply modern vessel reduced manning generally vessel manned midc level vessel proposed covered new award operating 18 month agreed interim arrangement pending resolution appropriate salary categorisation system term condition modern vessel party also agreed principle crewing existing crawford vessel midc level view recrewing completed within 12 18 month period party seek approval commission new salary structure apply new vessel salary structure involve broadbanding salary category classification establishment new relative reflect acquisition utilisation new skill new concept working team introduction multiskilling generally elimination demarcation work elimination classification electrical engineer officer engineer vessel covered mimsa required complete college course automation electronic electrical skill required perform duty previously responsibility electrician also electrical engineer may retrain engineer watchkeeper term condition proposed mimsa reflect substantial change generally particular hour duty incorporating team work concept intrduction shipboard management practice travelling working team time method payment introduction common provision elimination schedule specific classification well general restructuring modernisation award provision part overall restructuring industry radio officer classification removed vessel early 1992 whether covered misa mimsa exemption operate vessel without radio officer available early 1990 coastal vessel case overseas trading vessel early 1992 employer guild shall discus implementation voluntary early retriement arrangement radio officer appropriate training provided deck officer permanent company employment perform appropriate communication duty previously performed radio officer agreed arrangement implemented others course implemented also implemented future continue positive impact flexibility operation level skill employee efficiency industry detail restructuring follows maritime industry seagoing award 1983 1 manning pre crawford vessel agreed number 36 existing pre crawford vessel remanned reduced manning towards crawford level manning general remanning pre crawford vessel consist reduction generally four deck engine room seaman reduction number rating catering department removal electrician berth removal radio officer berth instance removal particular mate berth certain limited circumstance pre crawford vessel remanned generally subject industry agreement removal electrician radio officer berth agreed party removal rating berth deck officer berth take place 31 december 1989 electrician shall removed vessel chief engineer another engineer completed covered automation electronic electrical course content radio officer classification removed vessel early 1992 exemption operate vessel without radio officer available early 1990 coastal vessel case overseas trading vessles early 1992 employer guild shall discus implementation voluntary early retirement arrangement radio officer 2 crawford midc modern ship also agreed existing crawford manned vessel remanned midc level following manning reduction reduction number deck engine room rating replacement deck engineroom rating integrated rating reduction number catering rating catering department reduction engineer officer compliment removal electrician elimination radio officer berth incorporated operation vessel midc modern ship concept later set relation modern ship award also agreed modernisation committee shipping reform authority agreed time consider deck officer position vessel carrying four mate view removal appropriate deck officer berth 3 training engineer officer completed automation electronic electrical course covered content course certificate training undertake necessary training complete course within three year appropriate training vessel provided deck officer permanent company employment perform appropriate communication duty previously performed radio officer 4 multskilling result reduction manning removal rating officer berth operation remanned pre crawford vessel require greater multiskilling amongst remaining classification example engineer deck officer catering rating 5 award change agreement party involve inter alia following award change travelling variation travelling clause reflect agreed arrangement domestic international air travel employee joining leaving vessel arrangement generally represent reduction travelling cost employer also represent party view appropriate standard existing award custom practice b short term loading officer short term loading officer varied introducing 5 loading current award provision prescribing 12 1 2 10 change reflect agreement employer provide superannuation scheme relieving deck engineer officer employed employer c employee vessel overseas party agreed vary provision employee proceeding join vessel overseas delivery voyage rationalisation entitlement day froee duty taken major city nearest port vessel scheduled sail victualling accommodation agreement reached victualling accommodation rate reflect cost employee would incur general rule providing meal accommodation party also agreed appropriate adjustment formula maintain rate life award e disturbance sleep lasting cargo rate adjustment employee agreed adjust rate year beginning 1 january 1991 following discussion maritime union f provision party incorporated award appropriate provision second tier settlement approved commission industry leave new subclause 9 sickness accident clause 19 sailing shorthanded clause 40 party generally updated rationalised award table salary reflect current respondency vessel operating respect misa agreement provides implementation first instalment structual efficiency principle b approval appropriate salary category current pre crawford vessel proposed staged basis regard implementation recrewing programme particular vessel b maritime industry modern ship award party agreed new award known maritime industry modern ship award regulate term condition employment modern vessel new vessel agreed existing vessel vessel presently operating award general level manning 21 modern bulk carrier 21 compared crawford bulk carrier 26 vessel manning 11 also presently covered party agreed future modern vessel manning le midc level also covered moderisation committee examine appropriate reduced manning level modern ship 1992 principal feature operation modern ship composition crew composition crew vessel covered modern ship award changed change future vessel midc level manning change invovle removal electrician berth replacement deck engine room rating integrated rating integration catering department change achieved reduction manning level introduction new classification change working arrangement particular classification e g integrated rating multiskilling reduction manning level change composition crew together introduction new efficient method utilisation employee enabled greater multiskilling employee new classification integrated rating embrace duty task previously performed separately deck engine room rating classification automotion electronic task previously performed electrician allocated amongst engineer officer deck officer perform communication task would otherwise performed radio officer within catering department integration required greater sharing duty within department training new training arrangement introduced industry assist achieving current level reduced manning modern ship enable seafarer obtain skill necessary operation modern ship training programme introduced midc established career path provides opportunity employee progress level ability possible rating ot progress level master chief engineer ii avenue existing seafarer upgrade skill specific example training programme common initial training new entrant seafarer retraining existing rating achieve full certification integrated rating review current syllabii officer training requirement officer qualification ensure appropriateness light modern technology training retraining ensure marine engineer adequately trained automation electronic electrical function retraining course chief steward new entrant training future member catering department shipboard management concept teamwork approach adopted basis modern ship part concept modern ship shipboard management committee adopt plan meet operational requirement allocate crew member appropriate duty ensure efficient utilisation employee resource throughout vessel committee comprise master chief engineer 1st mate 2nd engineer chief steward chief integrated rating social environment important feature modern ship changed improved social work environment change catering area introduction single restaurant duty mess assist improving co operation communication amongst employee principle feature modern ship award 1 award structure award provision apply generally classification elimination particular schedule related particular group employee provision rationalised apply appropriate classification 2 salary category broadbanding classification salary result broadbanding employee classification integrated rating classification replacing deck engineeroom rating classification catering attendant replacing previous classification crew attendant catering attendant performing full range duty assistant steward b broadbanding vessel category modern ship award provides 6 salary category dry cargo vessel tanker compared complex diverse structure maritime industry seagoing award provides 30 salary category officer 30 salary category rating seaman cook steward c broadbanding salary aggregate wage radio officer chief steward chief cook chief integrated rating integrated rating assistant steward catering attendant result agreed relativity number different classification rate reduced 3 hour duty clause separate hour duty provision set schedule misa replaced modern ship award common provision directed towards employee acting team employee working level employee training ability co operative effort ensure safe efficient operation vessel party agreed monitor operation hour duty clause ensure provision applied reasonably manner consistent intention party 4 travelling provision travelling arrangement presently applying change reflect standard appropriate operation modern ship industry generally 5 employee vessel overseas party agreed arrangement employee manning vessel delivery voyage rationalising arrangement time free duty respect modern ship award party seek making award term presented commission end text end text

1512887 (Refugee) [2016] AATA 4045 (4 July 2016).txt

1512887 refugee 2016 aata 4045 4 july 2016 last updated 13 july 20161512887 refugee 2016 aata 4045 4 july 2016 decision recorddivision migration refugee divisioncase number 1512887country reference malaysiamember stuart webbdate 4 july 2016place decision melbournedecision tribunal affirms decision grant applicant protection visa statement made 04 july 2016 1 23pmany 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 september 2015 refuse grant applicant protection visa unders 65of themigration act 1958 act applicant claim citizen malaysia applied visa june 2015 delegate refused grant visa basis claim vague limited given insufficient evidence provided application applicant appeared tribunal 24 june 2016 give evidence regarding claim criterion protection visathe criterion protection visa set in 36of act schedule 2 themigration regulation 1994 regulation applicant visa must meet one alternative criterion 36 2 aa b c either person respect australia protection obligation refugee criterion complementary protection ground member family unit person person hold protection visa class section 36 2 provides criterion protection visa applicant visa non citizen australia respect minister satisfied australia protection obligation person refugee person refugee case person nationality outside country nationality owing well founded fear persecution unable unwilling avail themself protection country 5h 1 case person without nationality refugee outside country former habitual residence owing well founded fear persecution unable unwilling return country 5h 1 b 5j 1 person well founded fear persecution fear persecuted reason race religion nationality membership particular social group political opinion real chance would persecuted one reason real chance persecution relates area relevant country additional requirement relating well founded fear persecution circumstance person taken fear set s 5j 2 6 s 5k la extracted attachment decision person found meet refugee criterion 36 2 may nevertheless meet criterion grant visa non citizen australia respect minister satisfied australia protection obligation minister substantial ground believing necessary foreseeable consequence removed australia receiving country real risk suffer significant harm 36 2 aa complementary protection criterion meaning significant harm circumstance person taken face real risk significant harm set s 36 2a 2b extracted attachment decision mandatory considerationsin accordance ministerial direction 56 made 499 act tribunal taken account policy guideline prepared department immigration pam3 refugee humanitarian complementary protection guideline pam3 refugee humanitarian refugee law guideline relevant country information assessment prepared department foreign affair trade expressly protection status determination purpose extent relevant decision consideration consideration claim evidencethe applicant made following claim application fled country wanted protect group people harmed threatened kill business three friend one friend borrowed large amount money moneylender partner stood guarantor loan two partner went missing took large sum money business went slow moneylender started demanding money money could repaid moneylender started acting rough aggressive fight occurred moneylender applicant partner partner injured one moneylender subsequently died applicant wanted police murder suspect applicant also afraid debt collector people searching huge possibility kill applicant since one people dead day incident applicant injured partner went missing beaten harassed face continuous harassment attack moneylender received death threat business premise attacked damaged believe moneylender would stop looking arrested police investigation police torture harm investigated applicant stated may released bail investigation since involved directly death person know charge police bring whole situation critical complicated february 2014 applicant issued temporary visa australia left malaysia april 2014 arrived australia two day later visa expired july 2014 lodged protection visa application june 2015 finding reasonscountry nationalitythe applicant claim citizen malaysia provided copy passport department application tribunal find applicant citizen malaysia malaysia applicant receiving country purpose refugee complementary protection assessment third country protectionthere evidence suggest claimant right enter reside safe third country purpose 36 3 act credibilitythe tribunal aware importance adopting reasonable approach finding credibility inminister immigration ethnic affair mcillhatton v guo wei rong pam run juan 1996 40 ald 445the full federal court made comment determining credibility tribunal note particular cautionary note sounded foster j 482 care must taken stringent approach result unjust exclusion consideration totality evidence portion could reasonably accepted tribunal also accepts applicant account appears credible unless good reason contrary given benefit doubt united nation high commissioner refugee handbook procedure criterion determining refugee status geneva 1992 para 196 however handbook also state para 203 benefit doubt however given available evidence obtained checked examiner satisfied applicant general credibility applicant statement must coherent plausible must run counter generally known fact assessing claim made applicant tribunal need make finding fact relation claim usually involves assessment credibility applicant important bear mind difficulty often faced asylum seeker benefit doubt given asylum seeker generally credible unable substantiate claim tribunal must bear mind make adverse finding relation material claim made applicant unable make finding confidence must proceed ass claim basis might possibly true seemima v rajalingam 1999 fca 719 1999 93 fcr 220 however tribunal required accept uncritically allegation made applicant tribunal required rebutting evidence available find particular factual assertion applicant made seerandhawa v milgea 1994 fca 1253 1994 52 fcr 437at 451 per beaumont j selvadurai v miea anor 1994 fca 1105 1994 34 ald 347at 348 per heerey j andkopalapillai v mima 1998 fca 1126 1998 86 fcr 547 tribunal note also legitimate take account applicant delay lodging application protection visa assessing genuineness least depth applicant claimed fear persecution per heerey j selvadurai v minister immigration ethnic affair 1994 fca 1105 1994 34 ald 347 applicant appeared tribunal 24 june 2016 tribunal asked applicant number question claim applicant answered question claim vague inconsistent omission limited manner tribunal asked hearing reason applicant evidence vague inconsistent previously written applicant stated happened time ago tribunal noted period question 2009 2014 applicant came australia long ago applicant provided reason vague inconsistent evidence issue interpreting raised tribunal applicant stating understood interpreter hearing tribunal noted hearing applicant credibility significant concern tribunal evidence applicant significantly inconsistent information provided statement application significant difference claim regarding fight money lender applicant business partner applicant could remember fight took place applicant stated ago end 2014 tribunal noted date could accurate applicant australia end 2014 tribunal noted long ago supposed occurred applicant stated remembered happening occur tribunal expressed concern evidence applicant regarding fight occurred applicant stated hearing person hurt money lender fight leading death tribunal noted stated application tribunal noted applicant discussed fight application stated done serious crime scene 1 may released bail investigation since involve directly death person 2 tribunal noted applicant stated something completely different previously evidence hearing applicant stated concerned criminal matter want mention would get trouble australia tribunal noted applicant made clear statement feared police would arrest murder suspect 3 tribunal noted applicant claim involved fight already new claim person hurt man leading death inconsistent previous evidence applicant stated could explain maybe crime tribunal asked applicant approached police applicant stated police met applicant outside business tribunal noted police arrested stage despite claim violence applicant made new claim hearing arrested held police two week released tribunal noted applicant made mention arrested held police application significant omission tribunal noted applicant held police would reasonable applicant would mention statement fact applicant stated still wanted police murder suspect sure arrested 4 applicant stated investigation stage applicant confirmed contact family malaysia tribunal asked applicant aware criminal charge made applicant said applicant stated feared money lender may exaggerate claim tribunal asked someone could exaggerate murder claim tribunal expressed serious concern applicant contrived aspect claim applicant evidence regarding fight supposedly took place business partner money lender vague inconsistent limited applicant made significant change claim previously made explanation change limited applicant could remember fight took place gave date australia said could remember long time ago fact date le two year ago changed story involvement fight changed story regard involvement police explanation feared giving information might get trouble australia stand considering information provide tribunal considers applicant concocted claim fight money lender one money lender killed tribunal considers omission inconsistency vagueness applicant evidence demonstrates aspect applicant claim contrived fight occur person hurt either friend moneylender hurt tribunal accept money lender harmed police interest applicant arising fight tribunal accept applicant face charge police authority interest applicant tribunal accept incident occurred tribunal also significant concern aspect applicant claim tribunal discussed basic premise applicant claim guarantor money borrowed business partner applicant stated amount malaysian ringgit borrowed friend put land collateral applicant stated loan made sometime 2009 2010 applicant stated hearing business product business tribunal asked applicant documentary evidence involved loan agreement applicant stated paper home malaysia applicant confirmed contact family malaysia tribunal noted difficult asylum seeker provide document support claim flee fearing harm tribunal noted decision maker cannot rely absence document give issue asylum seeker face tribunal asked applicant asked family locate loan agreement applicant stated many paper ask find tribunal stated strange applicant seek document extended period time australia given family access paper relevance document tribunal asked applicant business applicant stated commenced 2009 2010 applicant stated hearing business never started failed outset nobody wanted buy product tribunal asked closed applicant stated middle 2012 tribunal asked business survived middle 212 nobody bought product applicant vague response remained open tribunal asked applicant friend managed service loan borrowed applicant stated difficult return money could get repay interest high tribunal questioned paying interest business operating applicant answer question tribunal noted strange applicant stated previously employed part time factory work made guarantor loan size applicant stated agreed friend request tribunal asked many business partner hearing applicant stated 2 tribunal asked applicant happened friend borrowed money applicant stated friend gone back native village problem far applicant knew later applicant stated friend may gone overseas tribunal stated strange applicant claiming significant difficulty guarantor person borrowed money applicant stated told friend money lender looking tribunal asked told friend family applicant stated family want get involved tribunal stated strange money lender seek family wanted tribunal identified number inconsistency evidence applicant hearing provided applicant application tribunal noted applicant altered number business partner previously stated business three friend 5 applicant initially stated meant two friend applicant later hearing stated three business partner tribunal stated applicant inconsistency evidence concerning tribunal noted applicant evidence hearing business failed beginning inconsistent information included application tribunal noted applicant application stated business running smoothly one day two partner gone missing took sum large cash 6 sic tribunal identified three concern evidence applicant regard tribunal noted evidence business running smoothly inconstant evidence business failed outset tribunal noted applicant made mention tribunal hearing two partner taken money business despite discussed business failing outset hearing tribunal noted failure raise aspect applicant claim hearing discussing operation business significantly concerning tribunal also noted applicant evidence regarding person borrowed money gone back village gone missing applicant stated business failed wanted money seeking person borrowed money applicant guarantor tribunal stated strange money lender would seek borrower money applicant stated explanation tribunal expressed serious concern primary claim applicant guarantor loan money lender tribunal took applicant number inconsistency evidence applicant stated moved around malaysia avoid moneylender tribunal noted applicant confirmed one address malaysia detailed application 7 applicant stated many place tribunal expressed concern listed tribunal noted applicant evidence regarding employment vague employment history listed businessman 8 detail applicant stated worked factory part time job tribunal noted strange guarantor large loan limited work history tribunal noted applicant stated never malaysia previously 9 applicant also stated never passport prior current passport 10 tribunal noted applicant current passport provided tribunal hearing stated previous passport expired 2012 applicant acknowledged questioned passport previously stated travelled two country previously tribunal asked disclosed application made false statement applicant stated made application short tribunal noted claim short gap caused credibility issue evidence applicant tribunal noted applicant current passport issued 2014 applicant confirmed got temporary visa australia february 2014 left malaysia date april 2014 arrived australia next day visa expired july 2014 lodged protection visa application june 2015 tribunal identified number concern aspect applicant evidence tribunal noted applicant issued passport 2014 tribunal noted applicant person interest authority would unlikely issue document applicant stated charged remanded tribunal noted applicant involved serious matter claimed strange document allowing leave malaysia would issued tribunal considers issuing passport applicant 2014 without issue raised demonstrates applicant person interest authority tribunal noted delay applicant getting visa australia departure almost two month applicant stated arrange thing tidy affair tribunal stated odd thing feared harm money lender tribunal stated may infer applicant fear harm malaysia given hurry leave opportunity tribunal noted applicant significantly delayed application protection australia arrived australia april 2014 lodged june 2015 almost year unlawful tribunal noted court stated tribunal could take delay account tribunal asked applicant delayed making protection claim come australia stated safety applicant stated feeling afraid would sent home took long time find help resource know tribunal noted applicant could approached department immigration advice regarding circumstance fear tribunal expressed concern delay lodging claim applicant stated wanted permission stay would go back le hot tribunal considered information detailed tribunal note evidence applicant significantly inconsistent application evidence provided hearing new claim made change previous explanation significant lack detail regarding relevant matter applicant evidence regarding business operation loan involved evident contrivance regarding violent fight hiding information residence malaysia previous passport travel vagueness past employment money lender supposedly seeking applicant ignore person borrowed money explained applicant stating knowledge friend returned village family approached claimed money lender tribunal explained unusual applicant wanted people applicant explanation remember matter long ago correct claim old problem since 2012 applicant time frame 4 year ago tribunal consider age matter explanation vague inconsistent false information provided applicant determined tribunal accept fear getting trouble australia explanation changed claim regarding violent incident tribunal accepted occurred given significant concern raised tribunal tribunal accept applicant dealing money lender including guarantor loan tribunal accept applicant involved product business friend business partner tribunal accept people borrowed money business money lender tribunal accept dealing money lender tribunal accept applicant ever harmed money lender tribunal accept money lender applicant seek harm future tribunal accept applicant involved fight money lender tribunal accept police interested applicant arising fight money lender tribunal find applicant concocted claim guarantor loan money lender order seek remain australia genuine story accordingly tribunal find applicant real chance serious harm real risk significant harm reason return malaysia reason given tribunal satisfied applicant person respect australia protection obligation 36 2 concluded applicant meet refugee criterion 36 2 tribunal considered alternative criterion 36 2 aa tribunal satisfied applicant person respect australia protection obligation 36 2 aa suggestion applicant satisfies 36 2 basis member family unit person satisfies 36 2 aa hold protection visa accordingly applicant satisfy criterion 36 2 decisionthe tribunal affirms decision grant applicant protection visa stuart webbmemberattachment extract frommigration act 19585 1 interpretation cruel inhuman treatment punishmentmeans act omission severe pain suffering whether physical mental intentionally inflicted person b pain suffering whether physical mental intentionally inflicted person long circumstance act omission could reasonably regarded cruel inhuman nature include act omission c inconsistent article 7 covenant arising inherent incidental lawful sanction inconsistent article covenant degrading treatment punishmentmeans act omission cause intended cause extreme humiliation unreasonable include act omission inconsistent article 7 covenant b cause intended cause extreme humiliation arising inherent incidental lawful sanction inconsistent article covenant torturemeans act omission severe pain suffering whether physical mental intentionally inflicted person purpose obtaining person third person information confession b purpose punishing person act person third person committed suspected committed c purpose intimidating coercing person third person purpose related purpose mentioned paragraph b c e reason based discrimination inconsistent article covenant include act omission arising inherent incidental lawful sanction inconsistent article covenant receiving country relation non citizen mean country non citizen national determined solely reference law relevant country b non citizen country nationality country former habitual residence regardless whether would possible return non citizen country 5j meaning well founded fear persecution 1 purpose application act regulation particular person person well founded fear persecution person fear persecuted reason race religion nationality membership particular social group political opinion b real chance person returned receiving country person would persecuted one reason mentioned paragraph c real chance persecution relates area receiving country note membership particular social group see section 5k 5l 2 person well founded fear persecution effective protection measure available person receiving country note effective protection measure see section 5la 3 person well founded fear persecution person could take reasonable step modify behaviour avoid real chance persecution receiving country modification would conflict characteristic fundamental person identity conscience b conceal innate immutable characteristic person c without limiting paragraph b require person following alter religious belief including renouncing religious conversion conceal true religious belief cease involved practice faith ii conceal true race ethnicity nationality country origin iii alter political belief conceal true political belief iv conceal physical psychological intellectual disability v enter remain marriage person opposed accept forced marriage child vi alter sexual orientation gender identity conceal true sexual orientation gender identity intersex status 4 person fear persecution one reason mentioned paragraph 1 reason must essential significant reason reason must essential significant reason persecution b persecution must involve serious harm person c persecution must involve systematic discriminatory conduct 5 without limiting serious harm purpose paragraph 4 b following instance serious harm purpose paragraph threat person life liberty b significant physical harassment person c significant physical illtreatment person significant economic hardship threatens person capacity subsist e denial access basic service denial threatens person capacity subsist f denial capacity earn livelihood kind denial threatens person capacity subsist 6 determining whether person wellfounded fear persecution one reason mentioned paragraph 1 conduct engaged person australia disregarded unless person satisfies minister person engaged conduct otherwise purpose strengthening person claim refugee 5k membership particular social group consisting familyfor purpose application act regulation particular person first person determining whether first person wellfounded fear persecution reason membership particular social group consists first person family disregard fear persecution persecution member former member whether alive dead family ever experienced reason fear persecution reason mentioned paragraph 5j 1 b disregard fear persecution persecution first person ever experienced ii member former member whether alive dead family ever experienced reasonable conclude fear persecution would exist assumed fear persecution mentioned paragraph never existed note section 5gmay relevant determining family relationship purpose section 5l membership particular social group familyfor purpose application act regulation particular person person treated member particular social group person family characteristic shared member group b person share perceived sharing characteristic c following apply characteristic innate immutable characteristic ii characteristic fundamental member identity conscience member forced renounce iii characteristic distinguishes group society characteristic fear persecution 5la effective protection measure 1 purpose application act regulation particular person effective protection measure available person receiving country protection persecution could provided person relevant state ii party organisation including international organisation control relevant state substantial part territory relevant state b relevant state party organisation mentioned paragraph willing able offer protection 2 relevant state party organisation mentioned paragraph 1 taken able offer protection persecution person person access protection b protection durable c case protection provided relevant state protection consists appropriate criminal law reasonably effective police force impartial judicial system 36 protection visa criterion provided act 2a noncitizen suffersignificant harmif noncitizen arbitrarily deprived life b death penalty carried noncitizen c noncitizen subjected torture noncitizen subjected cruel inhuman treatment punishment e noncitizen subjected degrading treatment punishment 2b however taken real risk noncitizen suffer significant harm country minister satisfied would reasonable noncitizen relocate area country would real risk noncitizen suffer significant harm b noncitizen could obtain authority country protection would real risk noncitizen suffer significant harm c real risk one faced population country generally faced noncitizen personally 1 form 866c q46 dibp folio 19 2 form 866c q48 dibp folio 18 3 form 866c q47 dibp folio 19 4 form 866c q47 dibp folio 19 5 form 866c q43 dibp folio 22 6 form 866c q43 dibp folio 21 22 7 866c q35 dibp folio 25 8 866c q39 dibp folio 23 9 866c q34 dibp folio 25 10 866c q31 dibp folio 26

Construction, Forestry, Maritime, Mining and Energy Union [2019] FWCA 8749 (31 December 2019).txt

construction forestry maritime mining energy union 2019 fwca 8749 31 december 2019 last updated 31 december 2019 2019 fwca 8749fair work commissiondecisionfair work act 2009s 185 enterprise agreementconstruction forestry maritime mining energy union ag2019 4867 trustee tencer family trust cfmeu victorian construction general division enterprise agreement 2019 2020building metal civil construction industriesdeputy president massonmelbourne 31 december 2019application approval trustee tencer family trust cfmeu victorian construction general division enterprise agreement 2019 2020 1 application made approval enterprise agreement known asthetrustee tencer family trust cfmeu victorian construction general division enterprise agreement 2019 2020 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 7 january 2020 nominal expiry date agreement 31 january 2020 deputy presidentprinted authority commonwealth government printer ae506651pr715656

Robert Coyne v Pacific National (ACT) Ltd [2004] WAIRComm 11517 (17 May 2004).txt

robert coyne v pacific national act ltd 2004 waircomm 11517 17 may 2004 last updated 7 july 2007100422889western australian industrial relation commissionpartiesrobert coyneapplicant v pacific national act ltdrespondentcoramcommissioner j f gregordatetuesday 18 may 2004file noapplication 113 2004citation 2004 wairc 11517____________________________________________________________________________resultdiscontinued____________________________________________________________________________orderwhereas 28thjanuary 2004 robert coyne applied commission order pursuant theindustrial relation act 1979 andwhereas 1stapril 2004 conference convened 19thapril 2004 deputy registrar judith wickham pursuant delegation underregulation 111of theindustrial relation commission regulation 1985 andwhereas 8thapril 2004 commission advised matter settled principle conference 19thapril 2004 vacated matter stood enable settlement andwhereas 11thapril 2004 applicant filed notice discontinuance commission decided discontinue proceeding therefore pursuant power vested theindustrial relation act 1979 commission hereby order application hereby discontinued commissioner j f gregor

Glenavon Pastoral (vic) Pty Ltd v Golden Plains SC [2005] VCAT 2182 (12 October 2005).txt

glenavon pastoral vic pty ltd v golden plain sc 2005 vcat 2182 12 october 2005 last updated 18 october 2005victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p3113 2004catchwordss 149 1 planning environment act 1987 golden plain planning scheme low density residential zone development plan overlay schedule 6 failure approve development plan whether proposal lot le 1 hectare accord policy impact character area land capability applicantglenavon pastoral vic pty ltdresponsible authoritygolden plain shire councilsubject landburnside road bannockburnwhere heldmelbournebefores r cimino memberhearing typehearingdate hearing19 may 17 june 2005date order12 october 2005citation 2005 vcat 2182orderthe responsible authority decision development plan amended july 2004 satisfaction responsible authority affirmed r ciminomemberappearances applicantmr p bisset solicitor mr bisset called mr clarke planning consultant dr r h van de graaff environmental scientist mr la fontaine environmental health officer responsible authorityms w nelson solicitor reasons1 matter relates application undersection 149 1 theplanning environment act1987

Dubbo RSL Memorial Club Limited & Anor v Steppat & Ors [2008] NSWSC 965 (19 September 2008).txt

dubbo rsl memorial club limited anor v steppat or 2008 nswsc 965 19 september 2008 last updated 19 september 2008new south wale supreme courtcitation dubbo rsl memorial club limited anor v steppat or 2008 nswsc 965jurisdiction civilfile number 2007 30124hearing date 11 september 2008judgment date 19 september 2008parties dubbo rsl memorial club 1st pltf registered club association nsw 2nd pltf ingo reiner gerd steppat 1st def mark nave 2nd def state new south wale 3rd def judgment mcclellan cjatcllower court jurisdiction applicablelower court file number applicablelower court judicial officer applicablecounsel c birch sc lynch pltfs n williams sc j free defs solicitor pigott stinson pltfs crown solicitor office defs catchword public healthdeclarations sought undersmoke free environment act 2000licensed club premiseswhether part club premise enclosed public place whether covered area uncovered area club premise single public place legislation cited smoke free environment act 2000category principal judgmentcases cited text cited decision 1 plaintiff summons dismissed cost 2 make order sought defendant cross summons follows 1 declaration internal roofed area outdoor gaming terrace first plaintiff premise enclosed public place purpose definition smoke free area in 6of thesmoke free environment act 2000 2 declaration roofed area tab outdoor area first plaintiff premise enclosed public place purpose definition smoke free area in 6of thesmoke free environment act 2000 judgment supreme courtof new south walescommon law divisionadministative law listmcclellan cj clfriday 19 september 200830124 2007 dubbo rsl memorial club limited or v steppat anorjudgment1his honour plaintiff seek declaration relief relating status thesmoke free environment act2000

Lihua, Yang --- "Implementation of China's rejuvenation through knowledge" [2014] ELECD 795; in Shao, Ken; Feng, Xiaoqing (eds), "Innovation and Intellectual Property in China" (Edward Elgar Publishing, 2014) 53.txt

lihua yang implementation china rejuvenation knowledge 2014 elecd 795 shao ken feng xiaoqing ed innovation intellectual property china edward elgar publishing 2014 53book title innovation intellectual property chinaeditor shao ken feng xiaoqingpublisher edward elgar publishingisbn hard cover 9781781001592section chapter 3section title implementation china rejuvenation knowledgeauthor lihua yangnumber page 27abstract description although china brilliant achievement science technology lag far behind western country modern time since people republic china p r china founded 1949 nation attempted overcome various challenge development china today respect pursuit knowledge innovation embodied set law regulation policy categorized intellectual property innovation promotion science technology education reform talent cultivation protection intellectual property right sail flag relying knowledge rejuvenate china chapter provides brief review p r china rejuvenation knowledge policy law practice part 1 outline relevant thought china political leader since founding new china part 2 discus china policy framework relying knowledge rejuvenate nation science technology human resource education intellectual property part 3 briefly cover legal system rejuvenating china relying knowledge part 4 discus implementation law policy relying knowledge rejuvenate china point achievement china made problem needed overcome conclusion point china law policy relying knowledge rejuvenate nation change time transformation national economic system change situation home abroad

Jamal v Workers Compensation Nominal Insurer [2023] NSWCA 4 (3 February 2023).txt

jamal v worker compensation nominal insurer 2023 nswca 4 3 february 2023 last updated 3 february 2023court appealsupreme courtnew south walescase name jamal v worker compensation nominal insurermedium neutral citation 2023 nswca 4hearing date 20 october 2022decision date 3 february 2023before macfarlan ja 1 white ja 2 mitchelmore ja 93 decision appeal dismissed costscatchwords worker compensation uninsured corporate employer culpable director employer deregistered service notice unders 145 1 theworkers compensation act 1987 nsw uncontentious employer contraveneds 155 1 theworkers compensation actby failing obtain worker compensation insurance policy injury occasioned employee appellant sole director employer time contravention respondent sought recover payment granted injured employer appellant culpable director unders 145a 1 theworkers compensation act primary judge found appellant actually knew circumstance amounting contravention purpose defeating reliance ons 145a 5 theworkers compensation act primary judge also found appellant position influence employer conduct relation contravention defeat reliance ons 145a 5 b theworkers compensation act whether primary judge erred finding appellant actually knew fact amounting contravention whether primary judge erred finding appellant position influence employer conduct relation contravention whether primary judge erred quantifying amount recoverable appellant ground appeal dismissed costsappeals evidence credibility finding function obligation appellate court basis scope appellate intervention upon trial judge finding creditwords phrase knowledge in 145a 5 theworkers compensation actlegislation cited occupational health safety act 2000 nsw 26 1 trade practice act 1975 cth s 52 75bworkers compensation act 1987 nsw s 145 145a 155 155aa 174cases cited chevalley v industrial court new south wale 2011 82 nswlr 634 2011 nswca 357fox v percy 2003 214 clr 118 2003 hca 22giorgianni v queen 1985 156 clr 473 1985 hca 29johnson v youden 1950 1 kb 544lee v lee 2019 266 clr 129 2019 hca 28pereira v director public prosecution 1988 63 aljr 1 1988 hca 57white construction pty ltd v pb holding pty ltd 2020 nswca 277workcover authority new south wale v edwin tucker george macdonald 2012 nswdc 226workers compensation nominal insurer v brasnovic 2013 nswdc 131yorke v lucas 1985 158 clr 661 1985 hca 65category principal judgmentparties noora jamal appellant worker compensation nominal insurer respondent representation counsel g g bateman appellant c price thompson respondent solicitor bridge lawyer appellant turk legal respondent file number 2022 78092decision appeal court tribunal district court new south walesjurisdiction civilcitation 2022 nswdc 10 2022 nswdc 105date decision 22 february 2022before gibson dcjfile number 2019 19349 note theuniform civil procedure rule 2005provide rule 36 11 unless court otherwise order judgment order taken entered recorded court computerised court record system setting aside variation judgment order dealt byrules 36 15 36 16 36 17and36 18 party particular note time limit fourteen day inrule 36 16 headnote headnote read part judgment april 2014 employee al maamoun co pty ltd company mr khaled jamal suffered injury course employment january year company business running small mediterranean grocery store auburn plan expand new premise located bondi junction appellant m noora jamal company sole director time mr jamal injured contravention ofs 155 1 theworkers compensation act 1987 nsw act company hold benefit worker compensation insurance policy date mr jamal injury permitted bys 140 1 act mr jamal due course made claim worker compensation worker compensation nominal insurer nominal insurer compensating mr jamal amount 258 565 75 nominal insurer sought recover expenditure m jamal culpable director within meaning ofs 145a 4 act company served two notice seeking reimbursement accordance withs 145 1 act deregistration january 2017 nominal insurer commenced proceeding m jamal district court new south wale 18 january 2019 appellant challenge primary judge finding company exempt employer purpose ofs 155aa 1 act primary judge gibson dcj held appellant liable reimburse respondent full amount received mr jamal following claim worker compensation plus interest cost appellant evidence along evidence company manager mr mark richerdson unaware company contravention act position influence company conduct relation contravention rejected primary judge appeal issue court whether primary judge erred finding appellant actual knowledge company contravention ofs 155 1 act disentitle exculpatory ground contained in 145a 5 act ground 1 ii whether primary judge erred finding appellant actual knowledge company contravention ofs 155 1 act appellant wilfully blind contravention disentitle exculpatory ground contained in 145a 5 act ground 2 iii whether contended respondent appellant required establish neither actual constructive knowledge company contravention exercised unders 145a 5 iv whether primary judge erred finding appellant established position influence company conduct relation contravention ofs 155 1 act disentitle exculpatory ground contained in 145a 5 b act ground 3 v alternative ground 1 3 whether primary judge erred finding appellant liable pay full amount 258 565 75 specified respondent second notice reimbursement served unders 145 1 act ground 4 court held white ja macfarlan mitchelmore jja agreeing dismissing appeal entirety cost issue ii 1 error primary judge conclusion company contraveneds 155 1 act appellant actual knowledge open primary judge reject evidence appellant mr richerdson conclude appellant discharged onus lay establish ground exculpationfox v percy 2003 214 clr 118 2003 hca 22 lee v lee 2019 266 clr 129 2019 hca 28 considered 2 error primary judge alternative finding appellant wilfully blind company contravention ofs 155 1 act 1 macfarlan ja 71 white ja 93 mitchelmore ja 3 respect respondent notice contention error primary judge decision knowledge within context ofs 145a 5 meansactualknowledge 1 macfarlan ja 67 69 white ja 93 mitchelmore ja worker compensation nominal insurer v brasnovic 2013 nswdc 131 approved workcover authority new south wale v edwin tucker george macdonald 2012 nswdc 226 disapproved giorgianni v queen 1985 156 clr 473 1985 hca 29 yorke v lucas 1985 158 clr 661 1985 hca 65 pereira v director public prosecution 1988 63 aljr 1 1988 hca 57 considered issue v 4 error primary judge conclusion appellant failed discharge onus proving position influence company conduct relation contravention act 1 macfarlan ja 81 83 white ja 93 mitchelmore ja 5 event though agitated party basis might case appellant position sole director company would sufficient disentitle appellant exculpation unders 145a 5 b act 1 macfarlan ja 74 76 white ja 93 mitchelmore ja chevalley v industrial court new south wale 2011 82 nswlr 634 2011 nswca 357 considered issue v 6 error primary judge quantification debt owed appellant respondent appellant submission second notice served upon company invalid rejected basis thats 145 1 act prescribe form notice take 1 macfarlan ja 90 91 white ja 93 mitchelmore ja judgmentmacfarlan ja agree white ja white ja appeal order district court gibson dcj judgment given respondent worker compensation nominal insurer appellant m noora jamal sum 258 565 75 plus interest cost worker compensation nominal insurer v jamal 2022 nswdc 10 worker compensation nominal insurer v jamal 2 2022 nswdc 105 258 565 75 total worker compensation payment made nominal insurer respect injury mr khaled jamal injured course employment 7 april 2014 employed al maamoun co pty ltd company appellant m jamal relevant time sole director company held liable sum culpable director within meaning ofs 145a 4 theworkers compensation act 1987 nsw act primary judge found relevantly company exempt employer within meaning ofs 155aa 1 act company thereby breach obligation unders 155 1 take policy insurance respect liability including liability compensation nature worker compensation injury worker section 155aa 1 provides 155aa exempt employer required obtain policy insurance 1 employer exempt employer financial year employer reasonable ground believing total amount wage payable employer financial year worker employed employer exemption limit financial year wage defined in 155aa 8 meaning wagesmeans wage defined insection 174and includes distribution worker beneficiary trust would undersection 174aa constitute wage purpose ofsection 174 wage purpose ofs 174include consideration money money worth given worker contract service exemption limit financial year 7 500 company commenced business january 2014 three month mr jamal injury operated grocery store auburn open seven day week 6 00am midnight m jamal brother mr mark richerdson mother resided shop employee company worked shop member family company produced record wage main person served shop mr maamoun derbas statement given m jamal 1 april 2015 stated mr derbas generally worked seven day per week different hour would take money till recorded book kept shop person would take money needed family might take stock shop food required mr richerdson deposed responsible management operation company gave evidence company proposed enter lease auburn premise building work required including fitting shop part proposed fitout intended refrigeration would installed company would require funding company incorporated 6 august 2013 mr derbas sole director 4 october 2013 mr richerdson deposed october 2013 proposed m jamal director company apparently according m jamal better credit rating mr richerdson m jamal gave evidence effect mr richerdson told would need anything would run company take care everything mr khaled jamal employed march 2014 common ground employed company another company group also worked engaged assist fitout work proposed new store bondi junction injured course employment mr richerdson deposed agreed would paid 1 156 gross per week agreed six week period total 6 936 appeal primary judge finding company exempt employer reasonable ground believe wage payable financial year ending 30 june 2014 would le 7 500 account taken definition wage includes consideration money worth moreover book said kept said record amount cash employee took till produced subsection 145 1 6 provide 1 nominal insurer may serve person opinion nominal insurer respect injured worker respect payment made nominal insurer respect claim division employer relevant time b insurer act employer notice requiring person within period specified notice reimburse insurance fund amount amount exceeding amount payment made specified notice 6 nominal insurer may recover amount specified notice served subsection 1 notice respect application made subsection 3 person notice given debt court competent jurisdiction notice given purportedly given company unders 145on behalf nominal insurer 25 august 20 october 2016 see 84 ff company insolvent deregistered 22 january 2017 section 145a 1 provides 145a recovery director corporation liable reimburse insurance fund 1 corporation liable reimburse insurance fund amount payment made respect claim division amount recoverable corporation nominal insurer entitled recover amount person culpable director corporation relevant time pursuant tos 145a 4 m jamal culpable director company contraveneds 155and time contravention director company section 145a 5 provides 5 person culpable director corporation person establishes corporation contravenedsection 155without person knowledge b person position influence conduct corporation relation contravention c person position used due diligence prevent contravention corporation trial appeal m jamal relied paragraph b subsection 5 onus lay establish contravention company ofs 155was without knowledge position influence conduct company relation contravention m jamal evidence chief given affidavit affirmed 17 june 2021 affidavit deposed convenience store operated mother along family member would assist time time said never paid wage salary company deposed recall signing document concerning appointment director particular recall executing consent act director defence traverse allegation nominal insurer material time director company instead pleaded time perform carry function director company gave evidence effect affidavit deposed aware company employed employee including cousin mr khaled jamal injured deposed aware company required hold worker compensation insurance policy hold policy deposed receive correspondence regarding company including sent nominal insurer evidence corroborated brother mr mark richerdson deposed convenience store run family business helped paid salary wage deposed m jamal involvement operation management company solely responsible however primary judge accept either m jamal mr richerdson witness truth respect m jamal honour found 38 m jamal evidence unsatisfactory every topic confidence reliability witness accept evidence admission interest otherwise corroborated independent objective evidence particular accept denial knowledge circumstance mr khaled jamal injury problem arising company worker insurance policy time satisfied statement april 2015 confirms knew matter time mr jamal accident assisted brother correspondence dealing allianz plaintiff relation mr richerdson honour found 62 mr richerdson unimpressive witness confidence reliability evidence unless admission interest independently corroborated reliable evidence face finding would create high bar appellate intervention infox v percy 2003 214 clr 118 2003 hca 22 gleeson cj gummow kirby jj said 28 29 even trial judge conclusion appear said based credibility finding incontrovertible fact uncontested testimony may demonstrate trial judge conclusion erroneous rare case appellate intervention warranted trial judge decision glaringly improbable contrary compelling influence honour also noted 31 31 recent year judge become aware scientific research cast doubt ability judge anyone else tell truth falsehood accurately basis appearance consideration encouraged judge trial appeal limit reliance appearance witness reason conclusion far possible basis contemporary material objectively established fact apparent logic event eliminate established principle witness credibility tends reduce occasion principle seen critical inlee v lee 2019 266 clr 129 2019 hca 28the principle restated bell gageler nettle edelman jj said 55 court appeal bound conduct real review evidence given first instance judge reason judgment determine whether trial judge erred fact law appellate restraint respect interference trial judge finding unless glaringly improbable contrary compelling inference factual finding likely affected impression credibility reliability witness formed trial judge result seeing hearing give evidence includes finding secondary fact based combination impression inference primary fact thereafter general appellate court good position trial judge decide proper inference drawn fact undisputed disputed established finding trial judge footnote omitted primary judge went say 71 infox v percy 2003 214 clr 118 2003 hca 22at 31 high court noted danger refinement demeanour witness box opposed contemporary objective evidence warning particularly appropriate proceeding conducted avl pandemic reason assessment credit m jamal mr richerdson based upon demeanour upon content answer question cross examination particular inconsistency earlier statement answer satisfied evasive also take account baseless denial evidence clearly correct m jamal living nature extent contact m vincent may accepted trial judge reason expressly disclaims witness demeanour contributing assessment witness credibility bar appellate intervention lowered white construction pty ltd v pb holding pty ltd 2020 nswca 277at 150 per leeming ja nonetheless gleeson cj gummow kirby jj said infox v percy judge reason contemporary material objectively established fact apparent logic event limit reliance appearance witness eliminate established principle witness credibility thus paragraph 71 quoted primary judge satisfied content m jamal mr richerdson answer question cross examination inconsistency earlier statement evasive difficult think impression witness gave judge course giving evidence would played part assessment albeit based demeanour basis disturb adverse credit findingsthe earlier statement primary judge referred two statement given mr richerdson one 17 march 2015 1 april 2015 one statement given m jamal 1 april 2015 statement taken mr greg lee engaged workcover authority nsw conduct investigation whether company met definition exempt employer claim officer workcover authority m cyndii vincent earlier concluded m jamal statement consisted 16 paragraph last paragraph said statement true account recollection matter paragraph 13 stated information providing received brother mark hold record personally engaged day day operation business includes hiring khaled information referred date mr khaled jamal commenced working wage paid paragraph 15 said 15 asked 7 april 2014 believe total amount wage payable al mammoun co pty ltd 2013 2014 financial year would 7 500 idea business experience m jamal earlier stated referred brother document many answer question put mr lee noted mr richerdson present m jamal interviewed paragraph 9 10 m jamal stated 9 aware khaled jamal injured work 7 april 2014 khaled jamal relative worker compensation insurance time khaled accident paid employee started u 10 al maamoun co pty ltd mediterranean grocery business 91 park st auburn nsw shop open 6am close midnight seven day per week following people regularly serve shop mark richerdson abir jamal maamoun derbas brother adam richardson maamoun derbas main person serf behind counter maamoun generally work 7 day per week work different hour shop pay expense would take expense till money recorded book kept shop book given accountant cannot give figure much maamoun main person take money business person take money needed minor expense required possible family may take stock shop food required asic search company stated m jamal appointed director 4 october 2013 ceased employment director 22 january 2017 company deregistered company search disclosed address 35 byrnes street south granville m jamal initially denied ever lived 35 byrnes street south granville later changed evidence said 2013 2014 lived address period three month example response question cross examination primary judge took account assessment m jamal credibility questioned statement 1 april 2015 m jamal gave following evidence q confirm content document true correct best recollection yes q aware khalid jamal injured whilst working company 7 april 2014 yes q knew time company worker compensation insurance yes think price honour mr bateman endeavouring say something honour yes mr bateman price expect either mute honour mr bateman bateman thank thank mr price mr price referred time thought worth making clear witness whether time time statement time injury honour well mr price matter whether want ask got answer want ask question mr price fine price would fairness witness address q suggest around shortly 7 april 2014 aware mr jamal injured work correct yes aware injured work q suggest also aware time company worker compensation insurance time injury occurred q say mean aware company insurance aware company insurance aware anything regard insurance time got injury q say became aware company worker compensation insurance quite sure would month injury week injury really certain question preceding m jamal referred statement counsel referred date statement m jamal answer yes think admission knew time mr khaled jamal injury company worker compensation insurance clear primary judge understood evidence got answer question repeated m jamal evidence changed irrespective demeanour good reason primary judge accept witness credit m jamal challenged answer following exchange occurred q suggest assertion become aware lack worker compensation insurance week later true say sorry sure honourq well mean sure mean sure answer question mean sure whether true understand question q well put said know worker compensation insurance time accident telling lie know agree disagree quite really remember questioned statement put counsel nominal insurer information paragraph 13 statement came knowledge information responded knew happening shop also said everything paragraph 10 alone known time maamoud stated quite sure whether time mr jamal injury company worker compensation insurance said know thing worker compensation back inconsistency m jamal answer cross examination provided ample basis primary judge satisfied credit without reliance upon demeanour statement 17 march 2015 mr richerdson stated company established family business operation manager stated founded business 14 august 2013 paid majority part said m jamal mr derbas also put money later stated m jamal financial interest know stated book company four unpaid employee current people working m jamal mr derbas mr abir jamal statement m jamal put money business inconsistent m jamal affidavit deposed never involvement business company oral evidence mr richerdson denied company four unpaid employee said called family member said employee assisting store family member said mr cox put description employee mouth mr cox interpretation call employee person mr richerdson called family member primary judge obliged accept evidence inconsistent document mr richerdson signed denial adverse credit case m jamal primary judge entitled take adverse view mr richerdson credit based response questioning cross examination example evidence included following q evidence understand none people worked shop paid cash wage salary correct absolutely q despite practice company allow people working shop take money till correct well think rephrase please honourq answer direct answer despite people working shop could take money till right correct taking petty cash stuff purchased stuff done taking money could go shopping personal expense trying say yes true extent taking petty cash stuff bought shop taking anything personal use priceq suggest practice could take money personal use correct incorrect q could take sorry cut across please finish incorrect take money personal use unless said allowed never case never money take q well say said never said take money till personal use answer question paragraph 9 mr richerdson statement 1 april 2015 made statement appears paragraph 10 m jamal statement namely 9 maamoun derbas main person serf behind counter 91 park rd store maamoun generally work 7 day per week work different hour shop pay expense would take expense till money recorded book kept shop book given accountant cannot give figure much maamoun main person take money business person take money needed minor expense required possible family may take stock shop food required mr richerdson said book recorded cash taken till would show reason people took cash said thought possibly even copy said get book tell much money taken till people worked shop said would also record item grocery stock taken people worked shop book never produced reason basis interfere primary judge adverse credit finding relation mr richerdson m jamal factual findingsms jamal challenged finding fact made primary judge extent challenge successful provide basis overturning primary judge adverse credit finding irrespective challenge m jamal discharged onus proof primary judge made factual finding follows 73 comfortably satisfied contrary denial m jamal considerable business expertise arising performance part time work accountant office mr jamal accident active participation mother brother family business setting running small grocery shop satisfied included contributing fund business mr richerdson acknowledged first statement also assisting store time time similarly satisfied aware employment book accountant person seeking avoid tax liability could paid cash kind book kept store permit person working store including also comfortably satisfied given fact family business defendant mother brother playing key role according mr richerdson evidence made financial contribution m jamal actually aware absence worker compensation insurance also position influence conduct corporation relation contravention legislation m jamal family together 74 comfortably satisfied well aware hiring employee included obligation employee suffered injury namely obligation insurance respond claim worker work injury participated brother step took attempt make claim allianz claim exempt company 75 also satisfied m jamal reason ongoing discussion brother mother well visiting premise regularly would appear even living one time well knew mr maamoun derbas worked shop seven day week 6 midnight indeed seriously question m jamal asks court accept mr derbas worked either wage least 21 69 per week weekly salary 6 month arrive total 694 mr price point award wage shopkeeper 2014 925 per week whether m jamal knew award wage prepared assume satisfied knew paying person book experience well aware position family well family business payment kind form cash good taking place 76 reason factual finding satisfied m jamal knew company worker compensation insurance exempt company satisfied brother knew well 77 note satisfied company contraveneds 155of act m jamal knew relevant time effectively admitted statement company worker compensation insurance explanation insurance paid employee started u cb 269 indicative given consideration company liability employee however explanation accept satisfied m jamal well aware mr derbas matter m jamal well mother brother could take money till item shop lieu salary work performing 128 m jamal working part time accountant office using computer software presented educated informed person term dealing m vincent satisfied knew difference paid book book namely still payment work taxation implication response brother day accident demonstrates immediately aware risk taken worker compensation insurance come fruition 1 ground appeal follows 1 primary judge erred finding 76 120 126 corporation contraveneds 155of theworkers compensation act 1987 nsw act appellant actual knowledge purpose ofs 145 5 act specifically primary judge erred considering attributing matter circumstance appellant occurring time relevant time consideration appellant knowledge unders 145a 5 act b erred attributing knowledge action person appellant consideration appellant knowledge unders 145a 5 act c erred finding appellant took step day worker injury towards making worker compensation claim allianz erred finding appellant significant considerable business experience 2 primary judge erred finding 128 appellant wilfully shut eye obvious relation contravention corporation ofs 155of act 3 primary judge erred finding 132 appellant position influence conduct corporation relation contravention ofs 155of act corporation purpose ofs 145 5 b act 4 alternative ground 1 2 3 primary judge erred finding 139 amount recoverable appellant 258 565 00 limited 103 771 29 ground 1ms jamal submitted primary judge erred finding statement m jamal made statement 1 april 2015 reflected knowledge matter time mr jamal injury 7 april 2014 pointed mr richerdson present statement taken paragraph 9 statement identical term paragraph 15 mr richerdson first statement part paragraph 10 statement identical term paragraph 9 second statement submitted judge ought concluded statement based thing told time statement taken mr richerdson reflect knowledge prior mr jamal injury submitted open primary judge find statement contained confirmation admission knowledge time mr jamal injury period company contravention ofs 155of act agree statement m jamal distinguished information provided paragraph 14 15 obtained brother balance information statement moreover cross examination initially admitted knowledge worker compensation taken mr jamal although resiled admission professed able either confirm deny state knowledge primary judge entitled treat para 9 10 statement admission state knowledge mr jamal injury regard admission cross examination referred 32 34 critical finding para 128 m jamal response day accident demonstrated aware risk taken worker compensation insurance accept m jamal submission finding erroneous judge previously found mr richerdson m jamal responded news injury attempting obtain policy worker compensation insurance insurer known allianz primary judge made finding 8 honour said day accident mr richerdson contacted allianz noted m jamal name given relevant company officer primary judge err finding para 128 crucial establishing m jamal knowledge absence worker compensation insurance onus lain worker compensation nominal insurer demonstrate knowledge primary judge made following finding relation m jamal contact m cyndii vincent 41 manner mr richerdson m jamal conducted correspondence m vincent confirms m jamal playing active role person lodged notification cb 178 telephone conversation m vincent 3 july 2014 wage payment detail providing information entity low wage total last fy cb 178 m jamal asked m vincent send email email address sending email melissa e m jamal email address additional au end fact one used allianz form cb 112 notifier name melissa cody phone number provided although admissibility record restricted unders 136of theevidence act 1995 nsw following challenge satisfied m vincent note conversation m jamal provided contact email address relevant contact information m jamal although mr richerdsen m jamal told m vincent m jamal knew nothing company matter see diary entry cb 164 166 satisfied case noted 23 primary judge found 71 m jamal denial evidence nature extent contact m vincent ground rejecting credit m vincent case officer workcover authority made file note 3 july 2014 follows employer pc mark richerdson telephone number present co asked speak melissa cody noted person lodging notification melissa advised following get back co detail wage paid iw currently using system something scil get entity low wage total last fy ending 30 june 2014 co obtained email email address sending email melissa formerly request payslip duration iw employment employment 52 week 52 week prior injury total wage paid entity financial year ending 30 june 2014 cyndii vincent co submitted m jamal m vincent reference 3 july file note reference notifier name contact detail detail appeared file kept allianz conduct mr jamal claim taken workcover authority claim made allianz declined basis policy taken injury occurred judge found mr richerdson contacted allianz provided m jamal name relevant company officer nonetheless primary judge err 41 finding case m jamal knew nothing company matter advice m vincent recorded m vincent file note currently using company system something could get company low wage total financial year ended 30 june 2014 inconsistent m jamal evidence lack involvement company business m jamal challenged finding primary judge 36 m jamal providing information assistance m vincent others regular basis challenge may accepted evidence established one telephone conversation m vincent telephone conversation 3 july 2014 initiated m vincent followed email sent email address recorded file note m jamal also submitted primary judge erred finding 73 considerable business expertise submitted whilst evidence would entitled primary judge conclude business skill experience open primary judge find considerable business expertise distinction business skill experience considerable business expertise immaterial judge finding 76 satisfied m jamal knew company worker compensation insurance exempt company counsel m jamal correctly accepted would sufficient m jamal order make defence 145a 5 b prove unaware obligation obtain worker compensation insurance essential 145a 5 knowledge fact gave rise contravention ofs 155 johnson v youden 1950 1 kb 544at 546 establish exculpatory ground 145a 5 incumbent m jamal believed saying either know company taken worker compensation insurance policy know company reasonable ground believing wage bill would le 7 500 latter ground would tantamount saying know wage bill would le 7 500 know mr richerdson believed otherwise evidence effect never considered either matter believed primary judge err material respect rejecting m jamal mr richerdson evidence reason would reject ground 1 notice appeal notice contentionby notice contention worker compensation nominal insurer submitted actual knowledge required purpose 145a 5 appellant knowledge company contravention ofs 155such excluded culpable director 145a 5 nominal insurer submitted enough called constructive knowledge company contravention primary judge rejected contention preferring reasoning taylor sc dcj inworkers compensation nominal insurer v brasnovic 2013 nswdc 131to decision letherbarrow sc dcj inworkcover authority new south wale v edwin tucker george macdonald 2012 nswdc 226as meant knowledge section 145a 5 103 honour err concluding section 145a make culpable director liable accessory company contravention ofs 155 criminal law establish offence aiding abetting counselling procuring commission principal offence must shown alleged accessory actual knowledge fact establish principal offence giorgianni v queen 1985 156 clr 473 1985 hca 29 ingiorgianni v queen gibbs cj said 487 connivance wilful blindness virtually amount knowledge treated equivalent knowledge honour referred wilful blindness sense person deliberately shutting eye fear learning fact would rather know mason j reached conclusion 495 plurality wilson deane dawson jj 507 508 said fact exposure obvious may warrant inference knowledge shutting one eye obvious however alternative actual knowledge required basis intent aid abet counsel procure lord goddard appears recognized concluding judgment davy turner co ltd v brodie 1954 1 wlr 1364at 1368 word point must know essential matter constitute offence court criminal appeal inreg v glennanalso referred judgment topoultry world ltd v conder 65 andbateman v evans 66 report ofpoultry world ltd v condor divisional court said decided person could convicted aiding abetting unless knowledge fact constitute offence unless deliberately abstained obtaining knowledge commentary upon decision however made clear court took view offence aiding abetting could established unless proof knowledge negligence amount deliberate shutting eye e connivance connivance course established basis knowledge whether proved directly inference inpereira v director public prosecution 1988 63 aljr 1at 3 1988 hca 57 high court held actual knowledge either specified element offence charged necessary element guilty mind required offence never case something le knowledge may treated satisfying requirement actual knowledge 3 likewise inyorke v lucas 1985 158 clr 661 1985 hca 65the high court held person liable 75b thetrade practice act 1975 cth one aided abetted counselled procured contravention principal contravenor 52 thetrade practice actor induced contravention directly indirectly knowingly concerned party contravention conspired others effect contravention liable accessory person knowledge essential fact established contravention noted derivation 75b found criminal law section 145a invoke language criminal law rather 145a 1 4 imposes liability culpable director relevant time reimburse insurance fund amount payment made claim div 6 ofpt 4where company uninsured revers onus proof exculpate director establishes company contravened 155 without knowledge circumstance see reason read knowledge anything le actual knowledge constructive knowledge wilfully shutting one eye obvious wilfully recklessly failing make inquiry honest reasonable man would make knowledge circumstance would indicate fact honest reasonable man sufficient establish accessorial liability equity person assist fiduciary breaching fiduciary duty accessory treated sufficiently culpable held liable consequence fiduciary breach reason construe knowledge used 145a 5 meaning anything actual knowledge ingiorgianni v queen plurality accept wilful blindness equivalent knowledge distinct matter actual knowledge readily inferred consider primary judge erred concluding knowledge 145a 5 refers actual knowledge director ground 2the primary judge found erred finding actual knowledge would accept m jamal shutting eye obvious ground 1 fails ground also necessarily fails primary judge entitled find m jamal shut eye obvious inferred actually knew fact established contravention 155 1 ground 3ground 3 challenge primary judge finding said finding appellant position influence conduct corporation relation contravention 155 primary judge finding follows 133 m jamal failed demonstrate position influence corporation submission made effect position influence company used due diligence prevent contravening obligation word finding depended upon m jamal discharged onus proof would thought m jamal could establish position influence conduct corporation relation contravention sole director company position influence conduct affair reason authority sole director manage affair company fact evidence left conduct affair company mr richerdson mean position influence conduct company affair could removed manager inchevalley v industrial court new south wale 2011 82 nswlr 634 2011 nswca 357this court held relation similarly worded provision in 26 1 theoccupational health safety act 2000 nsw whether director position influence corporation conduct relation contravention legislation question fact case may depend upon particular position held allocation responsibility within company director manager employee ability director circumstance find take step influence company conduct bathurst cj said 29 30 29 case depend fact self evident relation contravention ability influence corporation depend particular position held example work manager chief executive officer compared chief financial officer non executive director 30 second 26 1 b requires opinion charged director person concerned management demonstrates carried due diligence appropriate person position prevent contravention thus contravention arose result systemic failure officer may well liable failure undertake due diligence ensure proper system place prevent failure contrast person may liable case isolated instance caused failure follow appropriate workplace system charged person taken reasonable step appropriate position ensure system place would breached would liable question course depend fact established particular case case m jamal sole director company whose business consisted operating grocery store auburn opening new grocery store bondi junction find difficult see could position influence decision take take policy worker compensation insurance fact mr richerdson managed company affair mean m jamal position influence conduct company relation taking policy worker compensation insurance primary judge observed 131 assertion m jamal managing company different position influence company however nominal insurer eschewed reliance argument counsel said respondent case m jamal position influence corporation simply registered director take includes respondent case position influence company relation failure take policy worker compensation insurance simply reason appointment director appeal ground must dealt basis concession primary judge found 73 quoted 45 m jamal position influence conduct company relation contravention family together honour also found 130 critical m jamal defence position influence conduct company fact managed brother mere cipher defendant written submission 12 november 2021 paragraph 75 82 mr bateman point three area evidence support mr richerdson m jamal employed cousin mr khaled jamal worker b family member working business including m jamal could take money till good without mr richerdson permission c mr richerdson claimed person dealt company insurance broker referred broker 57 line 10 whereas m jamal even aware thing worker comp 57 84 131 mr price submits evidence pointed defendant relationship mr richerdson enabling give direction fact carry number company task including dealing m vincent nature agreement best would perform obligation became aware anything could direct carry highest assertion m jamal managing company different position influence company suggestion brother ignored insulted failed refer relevant matter necessary contrary included discussion worker compensation issue day accident m jamal submitted primary judge erred finding fact mr richerdson included m jamal discussion worker compensation issue day accident carried number company task including dealing m vincent demonstrated position influence company relation contravention 155 agree follow m jamal discharged onus lay prove position influence company relation failure take policy worker compensation insurance m jamal submitted primary judge failed consider give sufficient weight distribution duty mr richerdson relation contravention counsel referred particular fact company founded operated mr richerdson director approximately 10 company extensive experience retail grocery industry whereas m jamal appointed director better credit rating former director never run business paid contribution made company business unemployed time became director unemployment benefit submission assume acceptance m jamal mr richerdson evidence whereas primary judge found evidence accepted unless admission interest independently corroborated reliable evidence independent corroboration matter m jamal relied submission primary judge nominal insurer relied upon onus proof also evidence given m jamal cross examination approached anyone company would refer mr richerdson mr derbas would tell needed deal inquiry nominal insurer also relied evidence given mr richerdson cross examination asked without objection whether m jamal became aware company issue role director would contacted mr richerdson address issue mr richerdson agreed asked q issue able deal would ask direct deal never issue could within capacity issue directed never dealt issue capacity without permission last answer evidence interest accepted cross examination relied nominal insurer establish affirmative case m jamal position influence company relation contravention 155 nonetheless primary judge err concluding m jamal discharged onus establish position influence company relation contravention ground 4ms jamal submitted liable whole amount claimed ground 4 appeal primary judge erred finding amount recoverable m jamal 258 565 00 103 771 29 amount recoverable hence amount m jamal could liable culpable director amount specified notice served subsection 145 1 section 145 6 two notice served m jamal 145 1 purportedly section first 25 august 2015 workcover authority nsw behalf nominal insurer gave notice provision requiring reimbursement company amount specified schedule b amount specified schedule b 103 771 29 secondly 20 october 2016 insurance care nsw behalf nominal insurer gave notice requiring reimbursement company amount specified schedule b document headed schedule b however covering letter notice state amount 258 565 75 145 5 certificate document follows listed compensation payment made headed schedule b notice workcover first notice insurance care nsw second respectively stated company opinion nominal insurer employer worker respect claim compensation made particular specified schedule relevant notice notice stated company disputed notice 28 day date service file application review worker compensation commission m jamal submits notice issued 20 october 2016 defective pick submitted respondent court black 21 2 amount identified 145 5 certificate section 145 5 state 5 proceeding subsection 4 certificate executed nominal insurer certifying payment specified certificate paid respect injured worker named certificate b person named certificate opinion nominal insurer liable relevant time pay respect injured worker compensation act work injury damage without proof execution nominal insurer admissible evidence proceeding evidence matter stated certificate section 145 require notice 145 1 specific form notice may therefore taken include covering letter 145 5 certificate document listing compensation payment made specified relevant amount nominal insurer therefore entitled recover amount 258 565 65 result ground 4 rejected conclusion ordersfor reason would reject ground appeal propose appeal dismissed cost mitchelmore ja agree white ja amendments03 february 2023 minor amendment punctuation coversheet 1 paragraph 95 paragraph numbering appearing caselaw differs paragraph numbering judgment appears red book due new paragraph number given sentence parenthesis used paragraph numbering appears caselaw

Ishak v NRMA Insurance Limited (Motor Vehicles) [2002] NSWCTTT 874 (23 December 2002).txt

ishak v nrma insurance limited motor vehicle 2002 nswcttt 874 23 december 2002 last updated 6 august 2007ishak v nrma insurance limited motor vehicle 2002 nswcttt 874 23 december 2002 consumer trader tenancy tribunalmotor vehicle divisionapplication mv 02 13041applicant ishakrespondent nrma insurance limitedappearances ishak appeared person g penrose dispute resolution consultant represented nrma insurance limited hearing 7 may 2002 senior member durie 10 july 6 november 2002 member tearle parramatta hearing return summons held 12 august 2002 member white 20 september 2002 senior member durie legislation consumer trader tenancy tribunal act 2001 consumer claim act 1998 issue claim arising insurance contract insured event theft motor vehicle keywords claim arising insurance contract insured event theft motor vehicle orderthe tribunal dismisses application merit applicant failed prove claim reason decisionapplicationthese proceeding arise contract insurance applicant ishak respondent nrma insurance limited applicant respondent agree contract insurance force respect applicant motor vehicle 8 may 2001 applicant claim date vehicle stolen made claim insurance policy issued respondent insurer nrma insurance limited issued cheque cover claim stopped payment cheque applicant received cheque applicant commenced proceeding tribunal seeking order respondent insurer pay 15 600 00 amount vehicle insured respondent asked tribunal dismiss claim conduct proceedingsas requested applicant tribunal arranged arabic interpreter present available assist applicant however hearing applicant indicated tribunal would participate without assistance interpreter unless became necessary assistance proceeding presiding member checked applicant make sure could understand proceeding significance occasion applicant replied could understand proceeding without assistance interpreter remained present applicant evidencethe applicant gave evidence motor vehicle stolen address fairfield time friend another part sydney according applicant promptly reported theft police respondent evidencethe respondent representative gave evidence applicant vehicle recovered following alleged theft time recovery vehicle sign forced entry either door ignition key found ignition vehicle time recovery respondent belief claim applicant fraudulent theft car staged finding reasonsduring proceeding tribunal explained carefully party applicant bear onus proof order succeed action respondent applicant would need show balance probability event occurred covered insurance policy thatthe respondent insurer broke contract insured applicant paying claim accordance contract tribunal carefully considered evidence placed evidence includes photograph testimony party document tribunal attache particular weight statutory declaration g mackenzie specialist motor vehicle loss assessor employed insurance manufacturer australia pty ltd formerly nrma insurance limited statutory declaration dated 3 july 2002 mr mackenzie stated recovered vehicle key ignition noted vehicle ignition barrel lock intact showed sign attempted forced bypass mr mackenzie concluded correctly matched key used drive vehicle recovery site mr mackenzie unable identify point forced entry door lock vehicle window led mr mackenzie believe entry gained use key mr mackenzie concluded way vehicle could driven recovery site use original key tribunal note significant contradiction testimony applicant ishak testimony witness called j jewo among contradiction matter concerning detail journey applicant claim mr jewo making applicant car left unattended fairfield carefully considering evidence presented party tribunal find balance probability applicant discharged burden proving tribunal vehicle stolen making finding tribunal attache particular weight statutory declaration mr g mackenzie particular significance recovery applicant vehicle key ignition without evidence forced entry tribunal emphasis reached decision based civil standard proof applicant must meet tribunal find necessary examine respondent suggestion applicant may acted fraudulently making claim tribunal chosen explore suggestion fraudulent behaviour tribunal made finding whatever issue related fraud tribunal able decide matter reference onus proof applies civil proceeding evidence consideredthe respondent insurer tendered statutory declaration dated 14 july 2002 ibrahim tribunal specifically record material statutory declaration played part influencing tribunal decision tribunal able reach decision matter without relying written testimony m ibrahim accordingly tribunal take account m ibrahim statutory declaration tribunal consider evidence discussion may respondent insurer summaryafter carefully considering evidence tribunal find applicant produced sufficient evidence establish claim respondent insurer tribunal find balance probability insufficient evidence tribunal might properly base finding applicant vehicle stolen claimed short applicant proceeding prove claim balance probability circumstance tribunal unable award relief seek settlementbefore making order tribunal must use best endeavour bring party proceeding settlement acceptable consumer trader tenancy tribunal act 2001 section 54 1 tribunal record attempted hearing party unable reach settlement orderthe tribunal dismisses application merit applicant failed prove claim image w j tearlememberconsumer trader tenancy tribunal23 december 2002

MEGT (Australia) Ltd T_A MEGT [2017] FWCA 5221 (10 October 2017).txt

megt australia ltd megt 2017 fwca 5221 10 october 2017 last updated 12 october 2017 2017 fwca 5221fair work commissiondecisionfair work act 2009s 185 enterprise agreementmegt australia ltd megt ag2017 3495 megt australia ltd olympic dam apprentice enterprise agreement 2017 2021mining industrycommissioner johnssydney 10 october 2017application approval megt australia ltd olympic dam apprentice enterprise agreement 2017 2021 1 14 august 2017 megt australia ltd megt applicant made application approval themegt australia ltd olympic dam apprentice enterprise agreement 2017 2021 agreement application made pursuant tos 185of thefair work act 2009 cth act agreement single enterprise agreement 2 agreement lodged within 14 day made 3 commission satisfied requirement ofss 186 187and188of act relevant application approval met 4 agreement approved accordance withs 54of act agreement operate 17 october 2017 nominal expiry date agreement 30 june 2021 commissionerprinted authority commonwealth government printer price code g ae425668pr596674

Premier Customs Services v Botany Bay City Council [2008] NSWLEC 1185 (23 May 2008).txt

premier custom service v botany bay city council 2008 nswlec 1185 23 may 2008 last updated 27 may 2008new south wale land environment courtcitation premier custom service v botany bay city council 2008 nswlec 1185parties applicantpremier custom servicesrespondentbotany bay city councilfile number 10847 2007catchwords development application air freight forwarder parking loading unloading manoeuvering residential amenity landscaping setback legislation cited environmental planning assessment act 1979coram bly cdates hearing 15 16 04 2008judgment date 23 may 2008legal representativesapplicantmiss h irish barristerinstructed pike pike fenwickrespondentmr connor solicitorof houston dearn connorjudgment land andenvironment courtof new south walesbly c23 may 200810847 2007 premier custom service v botany bay city counciljudgmentintroduction1 appeal relates development application two storey industrial style building botany far sydney airport development described asproposed office warehouse including site parkingto used aboutiquestyle air freight forwarderinvolving import export small scale cargo 2 ground floor building mainly comprise loading dock storage area first floor used associated office purpose three car parking space two utilised delivery vehicle provided front loading bay two space positioned within building undercroft front space turntable enable car delivery vehicle enter leave site forward direction landscape area varying width provided adjacent turntable close site frontage along much eastern boundary building positioned western boundary site landscaping adjacent turntable landscaping along boundary 3 vacant rectangular shaped site 21 bay street botany area 214 square metre frontage 9 29 bay street surrounding area consists mixture older style residential dwelling industrial warehouse us adjoining site east single storey cottage positioned essentially common boundary south one two storey office warehouse building west single storey cottage heritage significance 16 wide site positioned 10 west common boundary 4 judgment find merit proposed development satisfactory approved planning controls5 site zoned4 industrialunderbotany local environmental plan 1995 4 zone general industrial zone city botany bay permitting wide range industrial style us including bulk store car repair station container terminal material recycling yard retail plant nursery road transport terminal warehouse distribution centre like together number ancillary us child care centre community recreation facility convenience shop primary objective zone ensure development industrial purpose presumably industrial style purpose permissible zone carried manner contributes economic employment growth area concurrently adverse impact environment amenity improved 6 particular relevance application fact 4 zone anair freight forwarderis form development particularly identified permissible development consent notwithstanding existence numerous dwelling house zone residential development prohibited 7 clause 12 lep imposes maximum floor space ratio 1 1 4 zone development standard comfortably complied proposed building clause 17 requires granting consent development 4 zone consent authority must satisfied number relevantly applicable matter including street parking loading unloading vehicle landscaping height scale design amenity adjoining non industrial us 8 also relevant application following development control plan development control plan 33 industrial developmentoff street parking development control plan9 whilst subdivision involved development control plan 7 subdivisionprovides lot created within industrial zone shall minimum area 1 500 square metre minimum frontage 25 plainly subject site common number lot bay street meet standard public submission council decision10 application advertised two letter objection received raising concern involving inappropriateness industrial development amongst residential development overshadowing neighbouring property unsatisfactory parking manoeuvring arrangement inappropriate architectural design incompatibility neighbouring heritage item 11 appeal council deemed refusal development application 12 similar proposal refused council subject unsuccessful appeal court meriden freight v botany bay council 2007 nswlec 318 council contentions13 essence contention council comprise whether proposed provision car parking space loading dock manoeuvring area satisfactory whether proposed landscaping provision sufficient satisfactory whether excess hard paved area whether amenity adjoining residential development adversely affected whether development would character desired future character area taking account industrial zoning land existence close residential developmentwhether setback proposed building boundary meet requirement development control plan whether approval application would set undesirable precedent14 dealing contention issue note applicant agreed council without prejudice condition consent plan management contains additional constraint manner proposed development operate constraint mainly comprise delivery site undertaken using small light commercial vehicle limited 3 4 per day delivery vehicle enter site forward direction rotated turntable reverse loading dock delivery vehicle unloaded within loading dock delivery permitted public place delivery item comprise envelope small box 15 essence submitted behalf council application treated development comprising office warehouse building used anair freight forwarderand understand submission correctly mean requirement planning control particularly control car parking loading unloading facility insofar apply office warehouse imposed 16 however taking account anair freight forwarderis separately identified form development lep together agreed condition consent incorporate plan management opinion application dealt one comprising construction building used purpose anair freight forwarder car parking loading dock17 design quality principle requirement development control plan relevantly include need efficient safe site system manoeuvring loading unloading parking vehicle including provision adequate street parking associated objective require facility integrated proposed building suitably designed landscaped minimise large expanse hard paving parking service area located behind building away street frontage vehicle required able enter leave site forward direction street parking dcp requires parking requirement forair freight forwardersare beassessed meritand supported traffic study 18 two traffic consultant mr c hallam council mr r varga applicant considered length issue car parking loading dock associated manoeuvring area including vehicle turntable mr varga explained response parking dcp requirement prepared merit assessment parking need forair freight forwarders assessment identified need three parking space including loading delivery vehicle together proposed loading dock provided proposal whilst mr hallam considered proposed parking loading unloading arrangement would probably work subject condition described plan management would preferable four street car parking space separately accessible loading dock provided accordance requirement factory warehouse 19 mr ba council town planning expert essentially agreed mr hallam particularly relation need building parking loading dock facility able used land us mr beetros applicant town planning consultant agree explaining would possible building parking arrangement utilised purpose permissible zone would also possible site amalgamated future time neighbouring property comprehensive redevelopment take place utilising existing building 20 already indicated appropriate deal application anair freight forwarderand taking account conclusion reached traffic expert satisfied parking loading access arrangement proposed would satisfactory whilst accept would difficult utilise development industrial warehousing similar purpose failure comply example dcp requirement relation car parking accept reason refuse application reason given mr betros also satisfied although car space located behind building sufficiently integrated building also accept access driveway manoeuvring area unreasonably large used intended taking account proposed landscaping arrangement satisfactory amenity street presentation21 design quality principle dcp 33 relevantly include protection amenity residential area provision buffer zone protect amenity adjoining residential non residential land us one purpose setback requirement enable provision landscaping buffer new development adjoins non industrial use impact minimised dcp also requires landscaping including canopy tree provided reduce impact car parking area 22 relevantly applicable front setback building alignment requirement 9 including landscape setback new building control take account existence residential development 4 zone allows lesser setback ifthe prevailing setback closer 9 metre regard proposed building set back little 5 5 second level ground floor level set back little 12 creating car parking undercroft context note industrial development west 6 9 setback residential development east west setback 2 3 23 mr ba concerned first substantive determination made bay street regarding setback applicable 9 setback requirement imposed whilst acknowledged much smaller setback neighbouring residential property used notwithstanding provision dcp excuse setback le 9 also argued existing industrial development bay street setback small 6 indicative unsatisfactory outcome standard complied particularly term providing landscaped area 24 mr betros disagreed explaining setback proposed entirely appropriate indeed responsive provision dcp regard prevailing building alignment existing dwelling west east site approximately 2 building including parking loading dock set back 5 5 appropriate outcome need additional setback unnecessary given satisfactory landscape arrangement proposed 25 landscape plan show 25 site area available landscaping well excess 10 required includes two canopy tree golden rain wattle tree 5 9 one close frontage one halfway site planting front setback area along side boundary include mass planting dwarf lily pilly shrub car parking access area provided turf paving plan provide planting along rear setback area 26 proposal exceeds accept prevailing setback site immediate neighbour around 2 3 front setback 5 5 satisfactory reaching conclusion also taken consideration landscaping soften appearance vehicular entrance site proposed building 27 side setback requirement 2 metre site adjoins residential use east requirement 3 requirement met actual set back building varies 1 69 half rear part building 3 21 taking account neighbour objection submitted proposed two storey building positioned close southwest corner site would adversely affect existing residential property 12 erith street whilst building set back slightly le 1 rear boundary set back western boundary resulting two storey built form hemming property 28 mr ba essentially concluded setback insufficient cause unsatisfactory impact residential neighbour south east impact compounded insufficient landscaping scale building excessive 29 mr betros disagreed explaining landscaped area far exceeds required proposed building considering low floor space ratio form presentation would appropriately sympathetic relationship neighbour relatively benign land use taking account traffic generation hour operation opinion adverse consequence resulting non compliance side setback requirement 30 objective seek protect amenity existing residential development must considered light fact site surrounding land zoned industrial development whilst site adjoins existing residential development according tomap 6botany west industrial precinct zone interface industrial residential zone hence level amenity existing residential development expect residential zone cannot expected industrial zone context persuaded evidence mr betros unreasonable impact particularly involving presentation noise privacy arise 31 zero setback western boundary accept matter concern building site could time necessary consolidated possible redevelopment adjoining site could include new building would abut extend proposed building 32 opinion taking account general industrial zone proposed arrangement built form car parking landscaping reasonable outcome term streetscape proposal appropriate conclusions33 satisfied development responsive objective 4 zone relation economic employment growth need limit impact environment amenity also responsive general objective dcp 33 seek improvement environmental aesthetic amenity industrial area minimisation impact industrial development residential development 34 doubt given size site tight design nevertheless work proposed operation conducted site streetscape presentation satisfactory proposed building seen surrounding residential property impact within reason taking account area response zoning expected progressively developed industrial purpose recognize site area le would required subdivision involved however concluded small particular proposal circumstance issue site consolidation arise 35 concern expressed thisair freight forwarderfail expectation would arise effect building would able used industrial purpose without complying relevantly applicable standard opinion reason refusal use site building different purpose would require development application must determined merit regard expect application use proposed building parking loading arrangement conventional industrial purpose would likely unsuccessful failure comply associated parking loading requirement risk owner applicant take proceeding subject proposal 36 concern also expressed appeal upheld would set inappropriate precedent however decided merit development warrant approval accept adverse precedent arises 37 circumstance satisfied proposal meet requirement cl 17 lep reason decided appeal upheld conditional development consent granted ___________________________t blycommissioner courtljr

Re Michelle Ella Beach and Australian Postal Commission [1982] AATA 233 (2 November 1982).txt

michelle ella beach australian postal commission 1982 aata 233 2 november 1982 administrative appeal tribunalre michelle ella beachand australian postal commissionno n82 37compensationcourtadministrative appeal tribunalgeneral administrative divisionthe honourable sir william prentice senior member catchwordscompensation injury travelling home substantial interruption mother residence whether substantial increase nature extent risk compensation travelling work place stop hour mother place injury thereafter whether journey work commonwealth compensation delay work place 1 hour 44 minute management approval instruct lotto balance process whether delay reasonably incidental employment whether thereafter journey employment commonwealth s 8 32 commonwealth employee compensation act long v commonwealth 1972 wcr n w 181stark v australian postal commission mr ballard 80 150 noted at1 ccn 323 commonwealth v wright 1956 96 clr 557fillipone v abel drainers pty ltd 1969 14 flr 456re valmay bissett1 ccn 10cross v design interior 1975 wcr 20 consideredhearingcanberra2 11 1982order 1 determination 12 october 1981 subject review set aside 2 matter remitted commissioner employee compensation direction applicant injury suffered 5 december 1980 incurred journey employment commonwealth entitled compensation accordingly 3 respondent pay cost applicant application scale appropriate claim worker compensation commission new south wale ordered decision1 determination dated 12 october 1981 delegate commissioner employee compensation delegate decided compensation ought paid applicant respect personal injury applicant suffered left work respondent evening 5 december 1980 review decision tribunal sought fact hardly dispute make formal finding term next paragraph 2 mr beach married woman living husband scarborough close lurnea mother life short distance minute car travel away glenwari street sadlier applicant relevant time trainee postal clerk miller post office three suburb named cluster around fourth cartwright west liverpool hoxton park road succession friday including night question applicant requested obtained permission presumably approval postmaster stay post office completed duty 4 51 p observe balance lotto monies done left office 6 35 p street light would daylight saving period time applicant husband worked afternoon night shift place employment became practice drive mother place would dinner remain hour near time husband return night question somewhat rainy friday night customarily cooked husband dinner expected midnight time would abed arrived mother house night question 6 40 p left 11 15 p still raining lightly driving short distance vehicle hit hoxton park road another vehicle going opposite direction appeared turn swerve right side centre line front suffered multiple bruising injured right knee light vehicle presumably street alcoholic beverage driving proper speed traffic hoxton park road heavy 5 30 p 6 30 p lot lighter 11 00 p applicant left post office intention go home planned stopover hour mother custom kept clothes mother place usually changed showered reached home 3 contended applicant travel post office miller sadlier lurnea regarded journey place employment 32 3 b compensation commonwealth government employee act 1971 accident happened cartwright sadlier lurnea admitted substantial interruption reason unconnected employment occurred behalf journey submitted evidence establishes substantial change nature risk substantial increase extent risk resulted attempt made assert travel risk involved increased consider slight increase might thought induced onset darkness rainy night would balanced lessening traffic later hour suggestion circumstance greater risk meeting driver influence alcohol based feel piece evidence entirely speculation find additionally probability therefore neither substantial change nature risk substantial increase thereof 4 respondent main submission twofold contended firstly fact require conclusion terminus journey employee undertook employment mother home injured therefore journey employment undertaking second journey mother home conclusion drawn delegate basis decision secondly counsel took position taken delegate support latter decision contending lapse time work ending 4 51 p leaving post office 6 35 p continuing attendance reasonably incidental employment prevented relying part travel night constituting journey employment find somewhat surprising instruction forthcoming make submission applicant obviously furtherance training efficiency postal clerk inferentially thought approved accordingly postmaster 5 assuming moment upon leaving post office night question applicant journey employment 32 act journey complete entered mother home issue posed recorded question fact case respect suggest approach mcgrath j long v commonwealth 1972 wcr n w 181 asking break end journey adopted tribunal stark v australian postal commission mr ballard 80 150 noted at1 ccn 323 helpful one find difficult despite reference terminus ad quem terminus quo removed definition periodic journey refrain reference purpose journey character purpose employment lie one end journey purpose residence part life apart employment lie kitto j commonwealth v wright 1956 96 clr 557 course inferential reference deviation 32 3 import notion pre determined destination fact believe mr beach journeying home resume private opposed employment life prepare husband meal attend detail domestic life sleep suggestion ever night might remain night mother place feature differentiates fact fillipone case 1967 14 flr 456 intending call mother house en route stay time consider alter character travel namely leaving work go home leaving mother place resumed fact subject possible disqualification compensation injury risk substantial interruption journey upon set journey place employment home would find matter fact valmay bissett 1 ccn 10 regard decision similar effect comparable fact 6 argument journey undertaken particular friday night journey employment 32 constructed consideration 8 sub section 3 4 c applicant employment said ceased 4 51 p rostered duty ended understand argument contended 33 b stating case journey place employment journey commenced period one hour immediately time ceased work journey shall deemed purpose sub section 1 last preceding section journey employment principle expressio unius exclusio alterius operate prevent applicant travel 32 periodic journey employment began 1 hour 44 minute ceased work 8 3 act submission proceeds operate extend applicant employment period attendance reasonably incidental employment operation upon 32 provision specifically excluded 8 4 assist applicant said defining meant reasonably incidental employment sub section 4 c restricts operation journey deemed 32 journey virtue 33 7 unable follow logic submission 8 3 specifically excludes operation upon 32 sub section 8 4 make definition purpose amplifying sub section 3 section applicant anything 32 journey one deemed 32 journey virtue 33 sub section 5 8 also explicitly excludes operation upon 32 understand intention 32 purport provide compensation cover employee journeying place employment close work extend benefit leave immediately bell speak 33 understand provision extends employee benefit allowing hour clear premise even engaged purpose pertaining strictly employment view beneficial effect regard intend exclude cover person remains attendance place employment bell purpose incidental employment kind existed instruction management approval area employment process applicant introduced regard see 32 importing matter common sense provision extension word employment include activity reasonably incidental employment end day receiving instruction morrow rostering explanation practical demonstration process employee might introduced one would recourse common law notion point court done deciding terminus employee remained engaged affair insturcting postal duty commendable initiative rather explicit direction management though approval allowed frustrate beneficial purpose statute 15aa actsinterpretation act compare cross v design interior 1975 wcr 20 mcgrath j 8 consider decision delegate 12 october 1981 reviewed set aside matter remitted commissioner direction applicant suffered injury 5 december 1980 journey employment commonwealth within meaning 32 compensation commonwealth government employee act entitled payment accordingly respect

Lei Nivaga v Moishe Gordon Pty Ltd t_as City Park Hotel - PR914150 [2002] AIRC 123; (6 February 2002).txt

lei nivaga v moishe gordon pty ltd city park hotel pr914150 2002 airc 123 6 february 2002 pr914150australian industrial relation commissionworkplace relation act 1996s 170ceapplication relief respect termination employmentlei nivagaandmoishe gordon city park hotel u2001 6043 commissioner graingermelbourne 6 february 2002termination employment extension time decision 1 applicant mr lei nigava lodged application unders 170ce 1 theworkplace relation act 1996 act claiming dismissed respondent moishe gordon city park hotel termination harsh unjust unreasonable mr nivaga application addition lodged 170cm act ground respondent failed give requisite statutory notice respondent form r21a lodged commission 27 september 2001 contends application accepted lodged time decision deal application 2 applicant represented mr g dircks respondent despite notified proceeding failed appear respond several attempt commission telephone regarding matter prior application heard background 3 mr nivaga commenced employment city park hotel 2 december 1998 general manager 4 7 august 2001 mr nivaga given letter dated 6 august 2001 moishe gordon said dear lei following conversation earlier today friday 3rd august meeting discussed restructuring company wish advise position restructured longer required please find enclosed detailed statement entitlement feel need discus matter relationship amount please call sincerelymoishe gordon 5 evidence hearing mr nivaga stated aware city park hotel experienced downturn business received letter accepted face value statement restructuring 6 7 september 2001 mr nivaga social meeting another employee city park hotel mr stephen ogle gave applicant copy memo 5 september 2001 exhibit a1 honi glatz describing manager city park hotel person employed prior termination applicant position position manager city park hotel exist prior applicant termination respondent 7 point applicant become aware first time termination may result genuine redundancy restructuring position general manager city park hotel longer required 8 8 september 2001 applicant rang city park hotel satisfied honi glatz fulfilling substantially duty previously performed applicant 9 9 september applicant rang victorian equal opportunity commission seek advice right 11 september 2001 applicant went mr gary dircks seek advice advice immediately went commission lodged application day 2 week 21 day period referred in 170ce 2 application applicant submission 10 applicant behalf mr dircks submitted applicant done reasonable achievable given fact presented soon became aware may case genuine redundancy restructuring contacted former employee victorian equal opportunity commission professional advisor immediately upon receiving advice filed application submitted respondent suffered prejudice given application lodged two week time addition reason given applicant termination restructuring valid one given position later filled modified title manager rather general manager city park hotel respondent submission 11 respondent neither provided written submission attended hearing conclusion 12 170ce 7 provides application subsection 170ce 1 must lodged within 21 day day termination took effect within period commission allows application made 21 day note subsection 170ce 1 state inbrodie hanns v mtv publishing ltd 1995 67 ir 298the industrial relation court australia set principle relating exercise discretion similarly worded provision theindustrial relation act 1988 six principle inbrodie hannswere summarised marshall j inbrodie hanns v mtv publishing limited 1995 67 ir 298at 299 1 special circumstance necessary court must positively satisfied prescribed period extended prima facie position time limit complied unless acceptable explanation delay make equitable extend 2 action taken applicant contest termination applying act relevant show decision terminate actively contested may favour granting extension time 3 prejudice respondent including prejudice caused delay go granting extension time 4 mere absence prejudice respondent insufficient basis grant extension time 5 merit substantive application may taken account determining whether grant extension time 6 consideration fairness applicant person like position relevant exercise court discretion 13 summary commission must positively satisfied prescribed period extended provision acceptable explanation delay accept principle note firm adoption decision commission instance ives dp injanelle ann thompson v salesforce australia pty ltd 7 january 2002 pr913159 acceptable explanation delay 14 carefully considered evidence positively satisfied balance applicant provided acceptable explanation 14 day delay lodging application termination 15 satisfied 7 august 7 september applicant genuine belief termination respondent valid reason redundancy resulting restructuring workplace 16 soon applicant became aware respondent created another similar position employed new person position honi glatz made enquiry satisfy accuracy new information sought advice victorian equal employment office mr dircks immediately following meeting mr dircks filed application satisfies action test inbrodie hanns prejudice respondent 17 fail see respondent could prejudiced 14 day delay attended commission explain could must cautious assessing merit respondent given evidence would appear applicant entitled suspicious whether redundancy bona fides matter aired process commission fairness others like position 18 see element unfairness others like position granting application assume others like position would almost certainly granted application extension time 19 considered factor decided exercise discretion accept application time file referred conciliation commission commissionerappearances mr dirckson behalf mr l nivagahearing detail 2002 melbourne 23 january printed authority commonwealth government printer price code b

CENTURION TRUST COMPANY LTD -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2010] WASCA 133 (23 July 2010).txt

centurion trust company ltd v director public prosecution wa 2010 wasca 133 23 july 2010 last updated 23 july 2010jurisdiction supreme court western australiatitle court court appeal wa citation centurion trust company ltd v director public prosecution wa 2010 wasca 133coram mclure powen jabuss jaheard 15 december 2009 7 may 2010delivered 23 july 2010file cacv 79 2009between centurion trust company ltdappellantanddirector public prosecution wa respondentfile cacv 81 2009between centurion trust company ltdappellantanddirector public prosecution wa respondenton appeal file cacv 79 2009jurisdiction supreme court western australiacoram templeman jcitation director public prosecution wa v centurion trust company ltd 5 2008 wasc 107file civ 2382 2003for file cacv 81 2009jurisdiction supreme court western australiacoram robert smith jcitation smith ex parte director public prosecution western australia 3 2004 wasc 157file civ 2382 2003catchwords confiscation property freezing order made respect fund bank account interested party appeal confiscation declaration appeal dismissal application set aside confiscation declaration whether objection filedstatutory interpretation proper construction application ofcriminal property confiscation act 2000 wa whether mechanism act ending freezing order made unders 43 1 b ambit operation automatic confiscation unders 7 1 whether automatic confiscation frozen property unders 7 1 extends frozen property liable confiscation unders 6ors 8 unders 7 2 whether automatic confiscation frozen property unders 7 1 confined property frozen pursuant freezing order made unders 43 8 unders 43 8 another ground groundslegislation criminal property confiscation act 2000 wa result cacv 79 2009application extension time appeal refusedappeal dismissedcacv 81 2009application extension time appeal grantedappeal allowedcategory arepresentation cacv 79 2009counsel appellant mr l bennett mr c e chenurespondent mr c g colvin sc mr staplessolicitors appellant lavan legalrespondent director public prosecution wa cacv 81 2009counsel appellant mr l bennett mr c e chenurespondent mr c g colvin sc mr staplessolicitors appellant lavan legalrespondent director public prosecution wa case referred judgment bennett co firm v director public prosecution wa 2005 wasca 141 2005 31 war 212centurion trust company ltd v director public prosecution wa 2008 wasca 6 2008 35 war 463centurion trust company ltd v director public prosecution wa 2009 wasca 97coal allied operation pty ltd v australian industrial relation commission 2000 hca 47 2000 203 clr 194director public prosecution wa v centurion trust company ltd 5 2008 wasc 107esther investment pty ltd v markalinga pty ltd 1989 2 war 196finance facility pty ltd v federal commissioner taxation 1971 hca 12 1971 127 clr 106gallo v dawson 1990 hca 30 1990 64 aljr 458jackamarra v krakouer 1998 hca 27 1998 195 clr 516leach v queen 2007 hca 3 2007 230 clr 1mansfield v director public prosecution wa 2006 hca 38 2006 226 clr 486palata investment ltd v burt sinfield ltd 1985 1 wlr 942re smith ex parte director public prosecution western australia 2 2004 wasc 147re smith ex parte director public prosecution western australia 3 2004 wasc 157table contents1mclure p appeal form part long history litigation arising appellant decision challenge court jurisdiction make freezing order money standing credit asic welcome stranger mining company nl trust c nominated bank account held appellant trustee gold coast trust property 2 appeal resulted obiter observation made court incenturion trust company ltd v director public prosecution wa 2009 wasca 97 second centurion appeal obiter observation significant influence framing issue canvassed hearing appeal 15 december 2009 first hearing course deliberating correct disposition appeal court identified matter potential undermine correctness aspect earlier obiter observation matter drawn attention party subject submission 7 may 2010 second hearing background3 freezing order granted ground director public prosecution dpp applied unders 43 1 b thecriminal property confiscation act 2000 wa act examination order relation property likely apply brian millwood smith crime used property substitution declaration criminal benefit declaration 4 litigation conducted basis appellant file objection confiscation unders 79of act application dated 15 december 2003 appellant applied set aside freezing order basis court lacked jurisdiction make application unsuccessful first instance smith ex parte director public prosecution western australia 2 2004 wasc 147 smithno 2 appeal centurion trust company ltd v director public prosecution wa 2008 wasca 6 first centurion appeal 5 2 july 2004 ex parte application dpp robert smith j made declaration pursuant tos 30of act frozen property confiscated unders 7 1 act smith ex parte director public prosecution western australia 3 2004 wasc 157 smithno 3 6 application dated 2 july 2004 appellant applied unders 79of act extension time file objection confiscation frozen property application unsuccessful first instance templeman j director public prosecution wa v centurion trust company ltd 5 2008 wasc 107 centurionno 5 appeal second centurion appeal 7 application dated 7 july 2004 appellant applied set aside confiscation declaration made robert smith j 2 july 2004 application heard together extension time application dismissed templeman j 6 june 2008 reason decision incenturion 5 noted counsel appellant accepted application dismissed primary judge observation accurate t 318 8 second centurion appeal court doubted correctness common assumption party order avoid automatic confiscation property unders 7of act necessary person served freezing order file objection confiscation unders 79of act regardless ground made preliminary view court automatic confiscation unders 7only applied freezing order could set aside unders 82 83ors 84inpt 6of act mclure ja 34 44 owen ja agreed bus ja 153 said obiter observation court resulted appellant commencing appeal cacv 79 2009 cacv 81 2009 9 appeal cacv 79 2009 appellant applies extension time appeal appeal order made templeman j dismissing appellant application dated 7 july 2004 set aside confiscation declaration made robert smith j 2 july 2004 appeal cacv 81 2009 appellant applies extension time appeal confiscation declaration made robert smith j 2 july 2004 two appeal raise question statutory construction accepted party constitutional issue arise 10 three ground freezing order made identified order follows dpp applied examination order relation property 43 1 b dpp likely apply smith crime used property substitution declaration b criminal benefit declaration within 21 day freezing order made 43 3 b c 11 examination order referred ground made dpp applied within statutory period declaration subject ground b first hearing number proposition dispute 1 objection 7 refers objection 79 act 2 filing objection 79 substance application commence proceeding set aside freezing order 3 automatic confiscation 7 confined objection result freezing order set aside pt 6 act 4 express power pt 6 setting aside freezing order 82 83 84 12 dpp contended written submission first hearing 1 beyond matter subject 82 83 84 exhaustively cover particular field court power pt 6 set aside freezing order objection filed 79 consistent scope purpose act whole 2 therefore pt 6 thus 7 applied freezing order regardless ground made however course first hearing dpp abandoned position accepted one qualification obiter statement court second centurion appeal qualification order avoid possibility freezing order made aid investigation order continuing indefinitely dpp would appropriate circumstance duty request court set aside freezing order 49 2 13 thus common cause first hearing appeal subject issue relating freezing order made multiple ground automatic confiscation 7 applied freezing order could set aside pt 6 act part 6 expressly applies ground b b b freezing order property ground express provision made pt 6 act set aside freezing order made 43 1 b ground dpp applied examination order relation property 14 regard respondent concession live issue first appeal statutory mechanism bringing freezing order made 43 1 b end freezing order made multiple ground fall within 82 83 84 automatic confiscation occur 7 freezing notice set aside ground made pt 6 applies freezing order set aside 82 83 84 appellant fact file objection confiscation property 15 second centurion appeal noted 43 type freezing order could set aside pt 6 freezing order made ground 1 examination monitoring suspension order force 2 application examination monitoring suspension order made foreshadowed 3 production order made application foreshadowed 4 application made foreshadowed unexplained wealth declaration criminal benefit declaration crime used property substitution declaration respondent owned effectively controlled property given away 5 person charged foreshadowed person charged offence could result person declared drug trafficker person owned effectively controlled property given away 16 refer examination monitoring suspension production order investigation order also noted second centurion appeal difficulty reconciling various provision act said difficult reconcile broad ground freezing order intended stop force recognise low threshold enlivens discretion grant freezing order consequence automatic confiscation pre empt prevent operation effect ground 48 49 example automatic confiscation frozen property 7 1 occurs pending decision contested application criminal benefit declaration basis grant freezing order application subsequently refused owner frozen property would without remedy beyond draconian arbitrary oppressive unjust result confiscation non confiscable property 53 17 first hearing appeal court informed declaration proceeding mr smith foreshadowed freezing order discontinued result confiscation property first hearing court obtained submission party following question automatic confiscation unders 7 1 thecriminal property confiscation act 2000 act extend frozen property liable confiscated unders 6ors 8of act automatic confiscation unders 7 1 confined property frozen pursuant freezing order made unders 43 8 act automatic confiscation unders 7 1 extends property frozen pursuant freezing order made unders 43 3 b c act confiscation provisional contingent upon dpp obtaining declaration respondent underpt 3of act confiscation occurs unders 6ors 8of act confiscated respondent declaration underpt 3or offender unders 8as case may limited interest property available confiscation 18 second hearing appellant shifted position contended automatic confiscation unders 7applies crime used crime derived property application freezing order made unders 43 3 set aside unders 84 19 dpp also shifted position contended second hearing addition person entitled set aside freezing notice order unders 82 83ors 84 person claim legal equitable interest frozen property entitled file objection underpt 6to preserve position determination unders 38 39 48ors 49which could result freezing notice order ceasing force scheme act20 purpose act provide confiscation confiscable property defined in 142to mean property 1 owned effectively controlled time given away person unexplained wealth acquired criminal benefit declared drug trafficker 2 crime used property 3 crime derived property 21 term property includes legal equitable interest real personal property whether tangible intangible 22 owner relation property mean person legal equitable interest property 23 person effective control property person legal estate property property directly indirectly subject control person held ultimate benefit person 156 24 underpt 3of act court empowered application dpp make unexplained wealth declaration 12 criminal benefit declaration 16 crime used property substitution declaration 22 court make unexplained wealth declaration criminal benefit declaration crime used property substitution declaration respondent liable pay state amount equal amount specified declaration 14 20ands 24respectively 25 part amount payable respondent paid within time allowed act frozen property isownedby respondent available purpose satisfying respondent liability 26 2 circumstance respondent effectively control property given away dpp required apply confiscable property declaration unders 27of act however presumed respondent effectively controlled property material time gave property away unless respondent establishes contrary 28 2 property specified confiscable property declaration available satisfy respondent liability unders 14 20ors 24to extent property owned respondent available insufficient satisfy liability 29 2 26 unders 30 dpp may apply court declaration property confiscated court find property described application confiscated unders 6 7ors 8 court must make declaration effect 27section 6 7ands 8relevantly provide property confiscatedproperty confiscated given taken satisfaction person liability undersection 14 20or24to pay amount specified unexplained wealth declaration criminal benefit declaration crime used property substitution declaration frozen property confiscated automatically 1 frozen property confiscated objection confiscation property filed 28th day service cut date property 2 objection confiscation frozen property filed 28th day service cut date property property confiscated objection objection one finally determined b property subject freezing notice freezing notice cancelled set aside c property subject freezing order freezing order set aside drug trafficker property 1 person declared drug trafficker undersection 32a 1 themisuse drug act 1981as result convicted confiscation offence committed commencement act following property confiscated property person owns effectively control time declaration made b property person gave away time declaration made whether gift made commencement act 28 term objection defined glossary mean objection filed 79 confiscation property 29part 4of act deal freezing notice crime used crime derived property freezing order confiscable property scheme act freezing notice freezing order broadly similar propose focus attention freezing order 30section 43relevantly provides 1 court may make freezing order property examination order monitoring order suspension order force relation property b dpp advises court application examination order monitoring order suspension order made relation property likely made relation property within 21 day freezing order made 2 court may make freezing order subsection 1 whether person examination order monitoring order suspension order made sought owns effectively control property 3 court may make freezing order property owned effectively controlled person person time given away production order made person b application made person unexplained wealth declaration criminal benefit declaration crime used property substitution declaration production order c dpp advises court application likely made within 21 day freezing order made 4 court refuse make freezing order property subsection 3 value property exceeds could exceed amount person could liable pay undersection 14 20or24if declaration made 5 court may make freezing order property owned effectively controlled person person time given away person charged offence dpp advises court person likely charged offence within 21 day day freezing order made b person could declared drug trafficker undersection 32a 1 themisuse drug act 1981if convicted offence 8 court may make freezing order property reasonable ground suspecting property crime used crime derived 31 power in 43 3 ands 43 5 freeze property owned effectively controlled given away specified person power in 43 1 ands 43 8 freeze property without reference ownership control dpp contends correctly opinion frozen unders 43 3 ands 43 5 confiscated interest property respondent accused owns effectively control gave away thus third party ownership interest property frozen confiscated respondent accused controlled interest given away 32 unders 46 1 freezing order notice complies sub 6 must served personally person frozen property taken person applicant aware time freezing order made may claim interested party term interested party defined glossary mean person interest property would enable person succeed objection confiscation property noteworthy expression interested party defined reference person interest would enable succeed application set aside freezing order 33 notice must advise recipient inter alia property may confiscated automatically act unless objection confiscation filed within 28 day service notice 46 6 person served unders 46with copy freezing order notice must give statutory declaration dpp stating name known address person declarant aware may claim interested party 37 34section 48 deal real property 49 property deal duration freezing order term section relevantly necessary set 49 provides duration freezing order property 1 freezing order property except registrable real property come force freezing order made 2 freezing order property except registrable real property made undersection 43 1 basis application another order likely made freezing order stop force soon one following happens freezing order made basis advice given court undersection 43 1 b application order made within 21 day date order b application order withdrawn c application order finally determined court make order freezing order set aside request applicant freezing order proceeding objection e property confiscated undersection 6 7or8 3 freezing order property except registrable real property made undersection 43 3 basis application declaration another order likely made stop force soon one following happens freezing order made basis advice given court undersection 43 3 c application declaration order made within 21 day date freezing order b application declaration order withdrawn c application declaration order finally determined court make declaration order case declaration declaration made respondent liability pay amount undersection 14 20or24is satisfied whether frozen property given taken satisfaction liability e freezing order set aside ground request applicant freezing order proceeding objection f property confiscated undersection 6 7or8 4 freezing order property except registrable real property made undersection 43 5 basis person likely charged offence stop force soon one following happens freezing order made basis advice given court undersection 43 5 person charged offence within 21 day date order b charge person disposed c charge finally determined person declared drug trafficker undersection 32a 1 themisuse drug act 1981 freezing order set aside ground request applicant freezing order proceeding objection e property confiscated undersection 6 7or8 5 freezing order made undersection 43 8 property except registrable real property basis suspected crime used crime derived stop force soon one following happens freezing order set aside ground request applicant freezing order proceeding objection b property confiscated undersection 6 7or8 6 however freezing order made 2 ground order stopped force subsection 2 3 4 5 relation ground freezing order continues force made remaining ground 35 ground freezing order stop force substantially freezing order made unders 43 1 43 3 ands 43 5 ground except par 49 likely occur expiration service cut date automatic confiscation unders 7 three ground require court order proceeding 49 1 b c 49 3 b c e 49 4 b c limited ground freezing order made unders 43 8 stop force reflects different statutory confiscation scheme crime used crime derived property discussed 36part 6of act deal objection confiscation scheme ofpt 6is follows person may file objection confiscation frozen property 79 1 80 state party proceeding objection section 81 provides 1 hearing objection confiscation frozen property court may set aside freezing notice freezing order extent permitted section 82 83 84 2 however property frozen 2 ground court set aside freezing notice freezing order relation ground freezing notice freezing order continues force made eachremaining ground 37 section 82 deal release crime used property relevantly provides 1 court may set aside freezing notice freezing order property frozen ground crime used objector establishes likely property crime used 2 court find property crime used required decide whether property crime used court may make order subsection 3 4 3 court may set aside freezing notice freezing order property objector establishes likely objector spouse de facto partner dependant owner property b objector innocent party le 18 year old c objector usually resident property time relevant confiscation offence committed likely committed objector usually resident property time objection filed e objector residence time hearing objection f objector would suffer undue hardship property confiscated g practicable make adequate provision objector mean 4 court may set aside freezing notice freezing order objector establishes likely objector owner property one 2 owner property b property effectively controlled person made criminal use property c objector innocent party relation property owner one innocent party relation property 5 objector establishes matter set subsection 4 b c fails establish matter set subsection 4 court may order property sold confiscation objector paid amount equal amount bear value property proportion objector share property bear whole property 38 section 82 contemplates two type objector innocent party defined 153 innocent party able object three ground 82 including basis property crime used 39 section 83 relates release crime derived property relevantly provides 1 court may set aside freezing notice freezing order property frozen ground crime derived objector establishes likely property crime derived 2 court find property crime derived required decide whether property crime derived court may set aside freezing notice freezing order objector establishes likely objector owner property one 2 owner property b property effectively controlled person wholly partly derived realised property directly indirectly commission confiscation offence c objector innocent party relation property owner one innocent party relation property 3 objector establishes matter set subsection 2 b c fails establish matter set subsection 2 court may order property sold confiscation objector paid amount equal amount bear value property proportion objector share property bear whole property 7 making order section court may make necessary convenient ancillary order 40 innocent party may also object confiscation frozen property ground crime derived 41 section 84 provides 1 court may set aside freezing order property frozen undersection 43 3 court find likely person respondent unexplained wealth declaration criminal benefit declaration crime used property substitution declaration effectively control property time given away 2 court may set aside freezing notice issued property undersection 34 3 freezing order property frozen undersection 43 5 court find likely person charged offence effectively control property time given away 42 one ground setting aside freezing order made unders 43 3 court must find balance probability respondent declaration proceeding defendant drug charge effectively control frozen property given away approach 82 83 differs 84 attributable number factor first freezing procedure avenue confiscation crime used crime derived property consequence basis confiscation crime used crime derived property status challenged interested party objection proceeding secondly crime used crime derived property confiscated entirety regardless issue ownership control gift 43part 6also provides release confiscated property 85 1 person may apply court release property confiscated unders 6ors 7 ground court may release confiscated property narrow set 87 act court permitted order release confiscated property inter alia likely applicant release become aware cannot reasonably expected become aware property confiscated property liable confiscation unders 6ors 7 87 1 c construction dilemma44 task statutory construction identify coherent framework consistent language purpose act whole case piece framework fit entirely comfortably statutory language primary cause difficulty accepted need reconcile broad ground freezing order intended stop force consequence automatic confiscation identified second centurion appeal 45 common cause scope ofs 7is linked scope ofpt 6of act must correct particular cannot intended thats 7apply absence entitlement file objection 79 act three possible option automatic confiscation unders 7only applies 1 freezing order made unders 43 3 43 5 ands 43 8 set aside 82 83 84 first option 2 freezing order made unders 43 8 set aside 82 83 second option 3 freezing order made unders 43 3 43 5 ands 43 8 set aside 82 83 84 b may stop force virtue future event unders 48or 49 third option 46 text ofs 7when read withpt 6 particular 80 81 strongly favour first option namely automatic confiscation unders 7is confined freezing order set aside 82 83 84 act however first option result conundrum identified secondcenturion appeal namely potential differential treatment co owner property conundrum could avoided automatic confiscation provisional contingent frozen property respondent accused subsequently confiscated unders 6ors 8 first option supported either party pressed second third option avoid conundrum 47 second option scope ofs 7is limited sub set ground freezing order set aside underpt 6 construction contended appellant 48 respondent argued third option person legal equitable interest frozen property entitlement object confiscation 79 act propose commence third option option 3 interested person entitled object49 two express statutory avenue prevent confiscation frozen property first setting aside freezing order 82 83 84 second freezing order stop force prior confiscation unders 48 s49 50 respondent contends entitlement file objection confiscation 79 extends 1 person claiming set aside freezing order 82 83 84 first limb 2 person interest frozen property interest automatically confiscated unless future event cause freezing order stop force unders 48 s49 second limb substance respondent contends person entitled file objection confiscation 79 ground confiscation unless known freezing order stop force unders 48 s49 formulation would include entitlement object basis court make order declaration proceeding referred 49 2 c 49 3 c 49 4 b c way confiscation would deferred substantive matter determined court outcome court proceeding freezing order stop force 7 2 cannot result confiscation operation subsection predicated freezing order continuingafterthe determination objection 51 third option consistent language ofs 7 1 term qualified limited reference ground freezing order made contrasted provision act ground making freezing order result different statutory consequence see 38 39 48 49 82 83 84 service cut date sole purpose determine operation automatic confiscation unders 7 1 applies term freezing notice order 150 52 express limitation scope ofs 7 1 entitlement file objection 79 pivotal issue whetherpt 6is confined objection proven empower court set aside freezing notice 82 83 84 already noted language ofs 7 2 read 80 81 strongly point direction alternative construction entitlement lodge objection 79 1 wider scope court power set aside freezing order broader contextual consideration support alternative construction 53 first service notice provision act expressly linked scope entitlement file succeed objection 79 obligation serve freezing order statutory notice limited person interest property would enable succeed objection 79 confiscation frozen property limitation entitlement object filing single objection prevents automatic confiscation 7 2 however significant definition interested party confined person entitled set aside freezing order 82 83 84 54 service notice provision require information potential automatic confiscation provided interested party regardless ground freezing order made automatic confiscation unders 7was intended confined freezing order made unders 43 8 expected intention would made clear statutory notice 55 secondly service notice provision act reflect broad right object consistent expectation person affected possible confiscation property given notice opportunity heard save confiscation depends upon criminal conviction drug trafficker declaration objector would bound result crime used crime derived property expected legislature would provide interested party interest frozen property entitlement notice heard civil proceeding including proceeding declaration underpt 4 prevent defeat confiscation frozen property unders 48 s49 56 thirdly filing objection mechanism putting respondent notice objection matter pertaining frozen property heard determined presence interested party coordinated fashion automatic confiscation final link statutory scheme person must served statutory notice person could succeed objector underpt 6and face possible confiscation fail object 57 summarising thus far interested party person succeed objection 79 limited person entitled apply set aside freezing order sub set thereof would following consequence 1 service notice obligation would capture person potentially affected confiscation 2 management coordination person interest resisting confiscation would significantly impaired 58 fourthly 61 1 consistent person entitled object irrespective ground property frozen section relevantly provides 1 owner frozen property examined connection property examination order contravenes order examiner requirement order owner entitled file objection confiscation property b owner already filed objection objection effect 59 third option also consistent ground investigation order stop force see 49 4 e 60 fifthly third option result consistent treatment freezing order regardless ground made particular enables frozen property confiscated absence positive finding court would otherwise necessary trigger confiscation objection filed within time property frozen unders 43 3 b c confiscated prior making declaration underpt 3 also scheme crime used crime derived property freezing order made unders 43 8 reasonable ground suspecting property crime used crime derived objection filed frozen property automatically confiscated absence finding property fact crime used crime derived unchallenged application statutory scheme relating crime used crime derived property confirms term confiscable used act refer generically property capable confiscated application provision act see also use term confiscable in 4 27 28 29 58 1 b 73 74 76 131 61 scheme act service notice filing objection automatic confiscation default objection similarity default judgment civil proceeding moreover scheme also linked general reversal onus proof act see 12 2 16 3 22 4 28 2 82 1 82 3 82 4 83 1 83 2 62 sixthly significant consequence intended attach failure file objection consistent scheme release confiscated property 87 act cannot release confiscated property applicant aware ought reasonably expected become aware confiscation property liable confiscation consistent broad service notice obligation scope linked entitlement file objection 79 finally third option consistent second reading speech act second reading speech western australia parliamentary debate legislative assembly 29 june 2000 8612 state part 2of bill provides automatic confiscation frozen property absence objection make operation bill efficient effective example property person frozen basis application unexplained wealth criminal benefit declaration made example person object confiscation property automatically confiscated 63 explanation cl 7 explanatory memorandum bill consistent second reading speech 64 broader contextual consideration referred persuade entitlement object confiscation underpt 6is confined person entitled relief 82 83 84 act person entitled object confiscation 79 ground confiscation unless known freezing order stop force construction ofpt 6will inform approach construction ofs 7 2 65 purpose ofs 7 2 objection second limb determined known freezing order stop force ground confiscation nothing required in 7 2 accommodate second limb freezing order stop force confiscation dictate outcome confiscation unders 7 2 predicated freezing order force following determination objection 66 number consideration favour third option tell second option satisfied third option best reflects language purpose act second option67 second option confines automatic confiscation freezing order made unders 43 8 inconsistent language ofs 7 1 limited solely reference entitlement file objection 79 express entitlement file objection 79 set aside freezing order made unders 43 3 range person must served freezing order statutory notice content notice length dpp must go act ensure interested party served copy freezing order notice 68 second option undermines statutory scheme link 1 service notice freezing order 2 entitlement object confiscation 3 consequence failure object namely automatic confiscation possibility automatic confiscation relied ensure party wish object confiscation timely fashion way come notice respondent coordinate resolution matter coordinated timely fashion resolution issue connected first hearing69 first issue first hearing whether statutory mechanism bringing freezing order made unders 43 1 b end connected assumption could objection freezing order 79 satisfied assumption erroneous 70 second issue first hearing also depends automatic confiscation applying ground freezing order made concluded automatic confiscation applicable ground however note sake completeness view logical compelling consequence construction act confines automatic confiscation unders 7to objection set aside 82 83 84 ofpt 6of act freezing order made multiple ground one fall outside 7 prevent automatic confiscation unders 7if statutory condition satisfied existence ground falling outside scope ofs 7neitherresults prevents automatic confiscation unders 7 section 49 6 81 2 inconsistent construction provision relate continuation freezing order unless ground made stopped force set aside 71 third issue first hearing remains decided issue whether appellant fact filed objection 79 confiscation property view answer notice motion dated 15 december 2003 set aside freezing order relied constituting objection 79 form substance challenge jurisdiction court intended outside statutory objection scheme inpt 6 claim appellant notice motion objection 79 inconsistent fact inconsistent appellant intention inconsistent appellant conduct engaging litigation basis objection filed 79 concession counsel appellant hearing 18 april 2008 application dated 7 july 2004 dismissed conclusion72 concluded automatic confiscation unders 7applies freezing order set aside 82 83 84 act freezing order stop force virtue future event unders 48or 49 73 objection confiscation property filed 79 appellant interested party property automatically confiscated unders 7 appeal must fail significant delay challenging order question would refuse extension time leave appeal dismiss appeals74owen ja agree bus ja cacv 79 2009 application extension time refused appeal dismissed cacv 81 2009 application extension time granted appeal allowed agree honour reason coming view 75 time bench seldom come across piece legislation perplexing difficult construe one perhaps surprising legislation previously described asdraconian concept emerge justifiably described extreme 76buss ja 14 november 2003 scott j application director public prosecution dpp made freezing order respect fund standing credit bank account westpac banking corporation name asic welcome stranger mining company nl trust c fund held appellant trustee gold coast trust 77 scott j made freezing order two ground first pursuant tos 43 1 b thecriminal property confiscation act 2000 wa act basis dpp applied examination order relation fund bank account examination order granted secondly pursuant tos 43 3 c read withs 43 3 b basis dpp likely apply brian millwood smith crime used property substitution declaration criminal benefit declaration within 21 day freezing order made dpp made contemplated application mr smith 78 24 november 2003 mr smith served copy freezing order 27 november 2003 submitted statutory declaration dpp pursuant tos 47of act named appellant interested party defined glossary act frozen fund seere smith ex parte director public prosecution western australia 3 2004 wasc 157 8 79 9 january 2004 em heenan j ordered period 28 day prescribed bys 79of act within objection freezing order may filed extended 60 day date service freezing order accompanying notice unders 46 6 person united kingdom including appellant may claim interested party honour purported extend time pursuant tos 79 4 also ordered extension time without prejudice right person apply extension unders 79 seere smith 3 9 80 28 january 2004 appellant served freezing order accompanying notice notice stated relevantly automatic confiscationthe property frozen freezing order may confiscated automatically thecriminal property confiscation act 2000andwithout notice unless objection confiscation property filed court specified freezing order within 28 day date service freezing order want prevent automatic confiscation youmustfile objection may doobjectionyou may eligible file objection confiscation property frozen freezing order eligible file objection wish prevent automatic confiscation youmustfile objection confiscation court specified within 28 day day copy freezing order served court objection filedsupreme court supreme court garden barrack street perth wa 6000 note giving statutory declaration director public prosecution prevent automatic confiscation property frozen freezing order prevent automatic confiscation must file objection court specified freezing order 81 neither appellant person filed objection 79 1 act confiscation fund frozen freezing order appellant however make application 15 december 2003 set aside freezing order application heard robert smith j 29 april 2004 challenged jurisdiction court make freezing order first appellant alleged order beyond jurisdiction purported extra territorial coercive effect appellant made without jurisdiction established appellant secondly appellant alleged circumstance enliven statutory jurisdiction court grant freezing order freezing order abuse process 30 june 2004 honour dismissed appellant application seere smith ex parte director public prosecution western australia 2 2004 wasc 147 appellant appeal court honour decision dismissed seecenturion trust company ltd v director public prosecution wa 2008 wasca 6 2008 35 war 463 82 2 july 2004 dpp made ex parte application declaration pursuant 30 act fund frozen freezing order confiscated 7 1 objection confiscation fund filed 28th day service cut date defined glossary act robert smith j heard application honour satisfied objection filed interested party statutory precondition making declaration 30 satisfied seere smith 3 13 24 2 july 2004 honour made declaration 83 2 july 2004 appellant made application 79 act extension time file objection confiscation frozen fund 6 june 2008 templeman j dismissed application honour held 79 applicable property confiscated honour also held court inherent jurisdiction arising 102 act ands 21 3 thesupreme court act 1935 wa extend time effect interest justice require templeman j decided circumstance unnecessary consider merit appellant application seedirector public prosecution wa v centurion trust company ltd 5 2008 wasc 107 11 12 14 17 19 27 84 7 july 2004 appellant made application set aside confiscation declaration robert smith j made 2 july 2004 application came templeman j based assumption making declaratory order robert smith j exercised judicial discretion consideration appellant concluded application misconceived court obliged make declaration counsel appellant accepted application dismissed 18 april 2008 templeman j made order effect seedirector public prosecution wa v centurion trust company ltd 5 28 30 85 appellant appealed court decision templeman j made 6 june 2008 dismissing application extension time file objection confiscation frozen fund court dismissed appeal seecenturion trust company ltd v director public prosecution wa 2009 wasca 97 held court inherent jurisdiction grant extension time permit person file objection 79 act property subject freezing order confiscated court cannot resort inherent jurisdiction override statutory scheme confiscation property unders 7or statutory scheme circumscribing time within objection may filed circumstance court may grant extension time 86 application made dpp mr smith crime used property substitution declaration criminal benefit declaration discontinued dpp consequence declaration made robert smith j 2 july 2004 pursuant tos 30of act fund frozen freezing order confiscated unders 7 1 present appeal court87 appellant applies extension time appeal necessary leave appeal court declaration made robert smith j 2 july 2004 frozen property automatically confiscated unders 7 1 act cacv 81 2009 b decision made templeman j 18 april 2008 dismissing appellant application set aside confiscation declaration made robert smith j 2 july 2004 cacv 79 2009 oral hearing court88 present appeal argued initially court 15 december 2009 judgment reserved later court wrote party raised several issue proper construction application act issue dealt party initial hearing subject written submission also 7 may 2010 court convened hear oral argument convened hearing court granted appellant leave amend ground appeal cacv 81 2009 application extend time appeal applicable legal principles89 general four principal factor considered determining whether grant application extension time appeal first length delay secondly reason delay thirdly whether arguable case fourthly extent prejudice respondent doubt particular case may additional factor seeesther investment pty ltd v markalinga pty ltd 1989 2 war 196 198 kennedy j citing english court appeal inpalata investment ltd v burt sinfield ltd 1985 1 wlr 942 946 90 ingallo v dawson 1990 hca 30 1990 64 aljr 458 mchugh j examined applicable principle relation application extend time appeal high court relevant provision rule high court empowered court extend time upon term justice case may require honour said grant extension time rule automatic object rule ensure rule fix time act become instrument injustice discretion extend time given sole purpose enabling court justice justice party seehughes v national trustee executor agency co australasia ltd 1978 vicrp 27 1978 vr 257at 262 mean discretion exercised favour applicant upon proof strict compliance rule work injustice upon applicant order determine whether rule work injustice necessary regard history proceeding conduct party nature litigation consequence party grant refusal application extension time seeavery v 2 public service appeal board 1973 2 nzlr 86at 92 jess v scott 1986 12 fcr 187at 194 195 application extension time file appeal always necessary consider prospect applicant succeeding appeal seeburns v grigg 1967 vicrp 113 1967 vr 871at 872 hughes 263 264 mitchelson v mitchelson 1979 24 alr 522at 524 also necessary bear mind application upon expiry time appealing respondent vested right retain judgment unless application granted vilenius v heinegar 1962 36 aljr 200at 201 follows applicant succeed application must material upon satisfied refuse application would constitute injustice judicial committee privy council pointed inratnam v cumarasamy 1965 1 wlr 8at 12 1964 3 er 933at 935 rule court must prima facie obeyed order justify court extending time step procedure requires taken must material upon court exercise discretion 91 injackamarra v krakouer 1998 hca 27 1998 195 clr 516 brennan cj mchugh j noted application made extend time appeal respondent application vested right retain judgment subject appeal grant application put risk vested right 4 honour also referred apparent approval topalata investment 946 followed kennedy j inesther investment 198 92 injackamarra kirby j noted particular case might factor relevance apart length delay reason delay whether applicant fairly arguable case extent prejudice suffered respondent application referring four principal factor kirby j said mean exhaustive several others time time thought relevant include whether delay intentional contumelious allen v sir alfred mcalpine son ltd 1968 2 qb 229 birkett v james 1978 ac 297at 318 merely result bona fide mistake blunder esther investment 1989 2 war 196at 204 whether delay litigant lawyer litigant saddled sophron v nominal defendant 1957 hca 27 1957 96 clr 469at 474 hall v nominal defendant 1966 hca 36 1966 117 clr 423at 435 mehta 1975 1 wlr 1087at 1091 1092 1975 2 er 1084at 1088 1089 may also relevant default party legal representative take account consideration personal party might affected ability safeguard interest example applying pressure lawyer similarly extent prejudice may remedied appropriate cost order another consideration sometimes treated relevant 66 93 present case convenient examine first merit proposed ground appeal proposed ground appeal cacv 79 200994 proposed ground appeal cacv 79 2009 read learned trial judge erred law dismissing appellant chamber summons filed 7 july 2004 learned trial judge held 2 1 order justice robert smith made 2 july 2004 made ex parte law provisional order 2 2 regard term freezing order made justice scott 14 november 2003 appellant entitled act object alternatively able obtain relief pursuant objection provision cpc act act 2 3 reason thereof automatic confiscation provision section 7 act apply appellant property 2 4 basis accordingly justice robert smith making declaration term declared alternatively learned trial judge held 3 1 appellant substance filed objection confiscation motion set aside ex parte order filed 15 december 2003 sought set aside freezing order ground inter alia property 3 1 1 crime used property 3 1 2 crime derived 3 1 3 unlawfully acquired property or3 1 4 could subject crime used property substitution declaration 3 2 basis accordingly justice robert smith making declaration term declared proposed ground appeal cacv 81 200995 proposed ground appeal amended cacv 81 2009 read learned trial judge erred law making declaration 2 july 2004 property subject freezing order made honourable justice scott 14 november 2003 automatically confiscated section 7 1 thecriminal property confiscation act 2000 act learned trial judge held 2 1 regard ground freezing order justice scott 14 november 2003 made appellant entitled act object alternatively able obtain relief pursuant objection provision act 2 2 reason thereof automatic confiscation provision section 7 act apply appellant property 2a alternatively learned trial judge held proper construction act automatic confiscation provision section 7 act apply appellant property alternatively learned trial judge held 3 1 appellant filed objection confiscation filing 15 december 2003 motion set aside ex parte order sought set aside freezing order ground inter alia property 3 1 1 crime used property 3 1 2 crime derived 3 1 3 unlawfully acquired property or3 1 4 could subject crime used property substitution declaration critical question appeals96 critical question arising initial hearing appeal 15 december 2009 statutory mechanism bringing freezing order made 43 1 b end freezing order made multiple ground fall within 82 83 84 automatic confiscation occur 7 1 freezing order set aside ground made pt 6 applies freezing order set aside 82 83 84 appellant appeal fact file objection confiscation property 97 critical question arising convened hearing appeal 7 may 2010 follows automatic confiscation 7 1 extend frozen property liable confiscated 6 8 automatic confiscation 7 1 confined property frozen pursuant freezing order made 43 8 automatic confiscation 7 1 extends property frozen pursuant freezing order made 43 3 b c confiscation provisional contingent upon dpp obtaining declaration respondent pt 3 confiscation occurs 6 8 confiscated respondent declaration pt 3 offender 8 case may limited interest property available confiscation 98 addressing critical question appeal necessary understand legislative scheme embodied act primary purpose act99 primary purpose act provide confiscation certain circumstance property acquired result criminal activity property used criminal activity part 3 act identifying recovering confiscable property100 part 3 act concerned amongst thing identifying recovering confiscable property property confiscable purpose act owned effectively controlled time given away person unexplained wealth b owned effectively controlled time given away person acquired criminal benefit c crime used property crime derived property e owned effectively controlled time given away declared drug trafficker see 142 see also definition unexplained wealth 144 criminal benefit 145 crime used property 146 crime derived property 148 declared drug trafficker 159 101 glossary act property defined mean essence legal equitable interest real personal property description wherever situated whether tangible intangible owner relation property defined mean person legal equitable interest property effective control relation property bear meaning set 156 102 court empowered application dpp make person unexplained wealth declaration 11 14 criminal benefit declaration 15 20 crime used property substitution declaration 21 24 103 purpose application unexplained wealth declaration property service advantage benefit constituent respondent wealth presumed lawfully acquired unless respondent establishes contrary see 12 2 purpose application criminal benefit declaration property service advantage benefit described application presumed directly indirectly acquired result respondent involvement confiscation offence unless respondent establishes otherwise see 16 3 see also 17 2 purpose application crime used property substitution declaration respondent convicted relevant confiscation offence presumed respondent made criminal use property unless respondent establishes contrary see 22 3 see also 22 4 22 5 104 14 court make unexplained wealth declaration respondent liable pay state amount equal amount specified declaration assessed value respondent unexplained wealth 105 20 court make criminal benefit declaration respondent liable pay state amount equal amount specified declaration assessed value criminal benefit acquired respondent 106 24 1 court make crime used property substitution declaration respondent liable pay state amount equal amount specified declaration assessed value crime used property 24 2 crime used property substitution declaration made two respondent respect crime used property respondent jointly severally liable pay state amount equal amount specified declaration assessed value property 107 section 25 provides 1 amount payable respondent section 14 20 24 payable within one month date respective unexplained wealth declaration criminal benefit declaration crime used property substitution declaration made b within time allowed court 2 court may allow time even due date passed 3 part amount paid within time allowed unpaid amount recoverable respondent state court competent jurisdiction debt due state 108 section 26 make provision use frozen property meet respondent liability 14 20 24 make specified monetary payment provides 1 frozen property owned respondent may taken respondent consent payment part payment amount payable respondent section 14 20 24 2 however part amount payable respondent paid within time allowed section 25 1 despite provision act frozen property owned respondent available purpose satisfying respondent liability property taken respondent possession writ warrant process execution 3 nothing subsection 1 2 limit mean satisfying debt due state subsection 25 3 109 term frozen relation property relation freezing notice freezing order defined glossary act mean subject freezing notice freezing order 110 6 property confiscated given taken satisfaction respondent liability 14 20 24 pay amount specified unexplained wealth declaration criminal benefit declaration crime used property substitution declaration 111 dpp entitled 30 1 apply court declaration property confiscated pursuant 30 2 court find property described dpp application confiscated 6 7 8 court must make declaration effect part 4 act preventing dealing confiscable property112 part 4 act concerned amongst thing preventing dealing confiscable property section 33 prevents dealing providing seizure crime used property crime derived property section 34 40 prevent dealing providing freezing notice respect crime used property crime derived property confiscable property issued justice peace application dpp police officer section 41 49 prevent dealing providing freezing order respect confiscable property made court application dpp provision issue freezing notice broadly reflect provision making freezing order unnecessary reason examine separately provision relating freezing notice 113 section 43 empowers court make freezing order circumstance court may make freezing order specified subsection 1 2 3 5 6 7 8 section 43 provides relevantly 1 court may make freezing order property examination order monitoring order suspension order force relation property b dpp advises court application examination order monitoring order suspension order made relation property likely made relation property within 21 day freezing order made 2 court may make freezing order subsection 1 whether person examination order monitoring order suspension order made sought owns effectively control property 3 court may make freezing order property owned effectively controlled person person time given away production order made person b application made person unexplained wealth declaration criminal benefit declaration crime used property substitution declaration production order c dpp advises court application likely made within 21 day freezing order made 5 court may make freezing order property owned effectively controlled person person time given away person charged offence dpp advises court person likely charged offence within 21 day day freezing order made b person could declared drug trafficker undersection 32a 1 themisuse drug act 1981if convicted offence 6 freezing order may made subsection 3 5 property owned effectively controlled person whether property described identified application 7 freezing order may made subsection 3 5 property acquired order made person b another person request direction first mentioned person 8 court may make freezing order property reasonable ground suspecting property crime used crime derived 114section 46makes provision service freezing order relevantly follows 1 soon practicable freezing order made applicant order must arrange copy order notice complies subsection 6 served personally following person frozen property taken person custody person person b time freezing order made applicant aware person may claim interested party person 4 result information statutory declaration given accordance withsection 47 person served copy freezing order subsection 1 applicant becomes aware person may claim interested party applicant must arrange copy freezing order notice complies subsection 6 served person personally soon practicable 5 nothing subsection 1 4 prevents applicant serving copy freezing order notice time person applicant becomes aware may claim interested party service cut date property affected service outside requirement subsection 1 4 6 notice must summarise effect order b advise recipient effect property described order may confiscated automatically act unless objection confiscation property filed court specified notice within 28 day date service notice c tell recipient may eligible file objection confiscation property give detail recipient obligation section 47 115 section 47 1 requires person served copy freezing order notice 46 give statutory declaration dpp statutory declaration must given within 7 day day notice served person see 47 2 statutory declaration declarant must state name known address person declarant aware may claim interested party b declarant aware person may claim interested party make statement effect see 47 3 116 glossary act defines term interested party relation frozen property mean person interest property would enable person succeed objection confiscation property 117 section 48 specifies duration freezing order registrable real property order come force memorial making order registered 113 1 see 48 1 48 2 stop force memorial 48 4 48 5 48 6 48 7 relation property registered 113 1 section 48 4 48 5 48 6 48 7 provide 4 freezing order registrable real property made section 43 1 basis application another order likely made applicant freezing order must lodge memorial registrar title freezing order made basis advice given court section 43 1 b application order made within 21 day date freezing order b application order withdrawn c application order finally determined court make order freezing order set aside request applicant freezing order proceeding objection e property confiscated section 6 7 8 5 freezing order registrable real property made section 43 3 basis application declaration another order likely made applicant freezing order must lodge memorial registrar title freezing order made basis advice given court section 43 3 c application declaration order made within 21 day date freezing order b application declaration order withdrawn c application declaration order finally determined court make declaration order case declaration declaration made respondent liability pay amount section 14 20 24 satisfied whether frozen property given taken satisfaction liability e freezing order set aside ground request applicant freezing order proceeding objection f property confiscated section 6 7 8 6 freezing order registrable real property made section 43 5 basis person likely charged offence applicant freezing order must lodge memorial registrar title freezing order made basis advice given court section 43 5 person charged offence within 21 day date freezing order b charge person disposed c charge finally determined person declared drug trafficker undersection 32a 1 themisuse drug act 1981 freezing order set aside ground request applicant freezing order proceeding objection e property confiscated undersection 6 7or8 7 freezing order made undersection 43 8 registrable real property basis property suspected crime used crime derived applicant freezing order must lodge memorial registrar title freezing order set aside request applicant freezing order proceeding objection b property confiscated undersection 6 7or8 118 section 49 specifies duration freezing order property property except registrable real property order come force freezing order made see 49 1 49 stop force follows 2 freezing order property except registrable real property made undersection 43 1 basis application another order likely made freezing order stop force soon one following happens freezing order made basis advice given court undersection 43 1 b application order made within 21 day date order b application order withdrawn c application order finally determined court make order freezing order set aside request applicant freezing order proceeding objection e property confiscated undersection 6 7or8 3 freezing order property except registrable real property made undersection 43 3 basis application declaration another order likely made stop force soon one following happens freezing order made basis advice given court undersection 43 3 c application declaration order made within 21 day date freezing order b application declaration order withdrawn c application declaration order finally determined court make declaration order case declaration declaration made respondent liability pay amount undersection 14 20or24is satisfied whether frozen property given taken satisfaction liability e freezing order set aside ground request applicant freezing order proceeding objection f property confiscated undersection 6 7or8 4 freezing order property except registrable real property made undersection 43 5 basis person likely charged offence stop force soon one following happens freezing order made basis advice given court undersection 43 5 person charged offence within 21 day date order b charge person disposed c charge finally determined person declared drug trafficker undersection 32a 1 themisuse drug act 1981 freezing order set aside ground request applicant freezing order proceeding objection e property confiscated undersection 6 7or8 5 freezing order made undersection 43 8 property except registrable real property basis suspected crime used crime derived stop force soon one following happens freezing order set aside ground request applicant freezing order proceeding objection b property confiscated undersection 6 7or8 6 however freezing order made 2 ground order stopped force subsection 2 3 4 5 relation ground freezing order continues force made remaining ground 119 freezing order stop force pursuant 49 cessation operate retrospectively adversely affect efficacy freezing order force part 5 act investigation search120 part 5 act concerned relevantly power investigation search purpose facilitating operation act 121 division 2 pt 5 make provision particular making examination order 122 dpp may apply ex parte district court order examination person see 57 58 1 court may order person submit examination matter specified subsection matter specified include relevantly nature location source frozen property par nature location source property frozen suspected reasonable ground confiscable par b 123 division 3 pt 5 make provision district court make production order property tracking document defined 155 124 division 4 pt 5 make provision making monitoring order suspension order defined 68 1 68 2 facilitate monitoring financial transaction 125 division 6 pt 5 confers power enable police officer specified circumstance detain search person property document certain circumstance seize detain document part 2 act confiscation property126 part 2 act concerned confiscation property comprises 6 10 127 section 6 relates respondent liability pay amount specified unexplained wealth declaration criminal benefit declaration crime used property substitution declaration read property confiscated given taken satisfaction person liability section 14 20 24 pay amount specified unexplained wealth declaration criminal benefit declaration crime used property substitution declaration 128 section 7 provides automatic confiscation certain property relevantly follows 1 frozen property confiscated objection confiscation property filed 28thday service cut date property 2 objection confiscation frozen property filed 28thday service cut date property property confiscated objection objection one finally determined b property subject freezing notice freezing notice cancelled set aside c property subject freezing order freezing order set aside 129 term objection defined glossary act mean objection filed 79 confiscation property 130 term service cut date relation frozen property given following meaning 150 purpose determining frozen property confiscated section 7 service cut date property frozen freezing notice date last day copy freezing notice served anyone section 36 4 b property frozen freezing order date last day copy freezing order served anyone section 46 4 131 definition service cut date remarkable clumsiness lack coherence paragraph b premised assumption result information statutory declaration given accordance 47 copy freezing order served another person person required 46 4 definition deal expressly situation service required 46 4 statutory declaration given accordance 47 person served freezing order 46 1 disclose existence person declarant aware may claim interested party 132 incenturion trust company 2009 wasca 97 expressed preliminary view proper construction definition service cut date context provision 7 46 pt 6 service cut date property frozen freezing order follows statutory declaration given accordance 47 necessary serve person person 46 4 date last day copy freezing order served person last person served b statutory declaration given accordance 47 unnecessary serve person person 46 4 date statutory declaration given 133 note 46 5 provides service cut date frozen property affected service outside requirement 46 1 46 4 particular service cut date affected service 46 5 permit applicant freezing order serve copy order accompanying notice time person applicant becomes aware may claim interested party 134 section 8 deal confiscation drug trafficker property provides relevantly 1 person declared drug trafficker undersection 32a 1 themisuse drug act 1981as result convicted confiscation offence committed commencement act following property confiscated property person owns effectively control time declaration made b property person gave away time declaration made whether gift made commencement act 2 person taken declared drug trafficker section 159 2 following property confiscated property person owned effectively controlled time person absconded b property person gave away time person absconded whether gift made commencement act 135 person taken declared drug trafficker 159 2 person charged serious drug offence within meaning ofs 32a 3 themisuse drug act 1981 wa b offence committed likely committed commencement act c person could declared drug trafficker 32a 1 act convicted offence charge disposed finally determined e person absconds connection offence 136 term absconds connection offence virtue 160 following meaning 1 person charged offence absconds connection offence warrant person arrest offence force person arrested without warrant either person charged offence b charge neither disposed finally determined c least 6 month passed since warrant issued person cannot found 2 person charged offence absconds connection offence warrant person arrest offence force person arrested offence without warrant whether charged offence b charge neither disposed finally determined c person dy 137 registrable real property confiscated 6 7 8 vest absolutely state court declares 30 property confiscated memorial making declaration registered 113 1 see 9 1 138 property except registrable real property confiscated 6 7 8 vest absolutely state section take effect relation property see 10 1 139 section 6 7 distinguishable 8 property may confiscated 6 7 even person convicted confiscable offence part 8 act court jurisdiction evidentiary matters140 102 1 proceeding application act taken civil proceeding purpose section 102 2 provides except relation offence act rule construction applicable relation criminal law apply interpretation act part 6 act objection confiscation141 part 6 act comprises 79 87 concerned objection confiscation also release property confiscated 6 7 142 glossary act objection defined mean objection filed 79 confiscation property 143 section 79 regulates filing objection confiscation frozen property read 1 person may file objection confiscation frozen property 2 copy freezing notice freezing order served objector objection must filed within 28 day day copy notice order served objector b within time allowed court 3 copy freezing notice freezing order served objector objection must filed within 28 day day objector becomes aware could reasonably expected become aware property frozen b within time allowed court 4 court may allow time subsection 2 3 even time filing objection expired 144 state party proceeding objection see 80 145 section 81 1 provides hearing objection court may set aside freezing notice freezing order extent permitted section 82 83 84 146 81 2 property frozen two ground court set aside freezing notice freezing order relation ground freezing notice freezing order continues force made remaining ground 147 section 82 permit court set aside freezing notice freezing order property frozen ground crime used property section term 1 court may set aside freezing notice freezing order property frozen ground crime used objector establishes likely property crime used 2 court find property crime used required decide whether property crime used court may make order subsection 3 4 3 court may set aside freezing notice freezing order property objector establishes likely objector spouse de facto partner dependant owner property b objector innocent party le 18 year old c objector usually resident property time relevant confiscation offence committed likely committed objector usually resident property time objection filed e objector residence time hearing objection f objector would suffer undue hardship property confiscated g practicable make adequate provision objector mean 4 court may set aside freezing notice freezing order objector establishes likely objector owner property one 2 owner property b property effectively controlled person made criminal use property c objector innocent party relation property owner one innocent party relation property 5 objector establishes matter set subsection 4 b c fails establish matter set subsection 4 court may order property sold confiscation objector paid amount equal amount bear value property proportion objector share property bear whole property 6 order subsection 5 court specify proportion find objector share property 7 application dpp owner property court may set aside freezing notice freezing order property also order objector pay state amount equal value property 8 section 22 6 22 7 23 24 25 26 apply relation making order subsection 7 objector order crime used property substitution declaration objector respondent relation declaration 148 term crime used relation property defined 146 146 1 property crime used property used intended use directly indirectly connection commission confiscation offence connection facilitating commission confiscation offence b property used storing property acquired unlawfully course commission confiscation offence c act omission done omitted done facilitated property connection commission confiscation offence 149 146 2 relevantly property described 146 1 crime used whether anybody charged convicted relevant confiscation offence see 146 2 150 section 82 1 empowers court set aside afreezing notice freezing order property frozen ground crime used section 82 3 empowers court set aside thefreezing notice freezing order fortheproperty objector establishes certain specified matter section 82 4 empowers court set aside thefreezing notice freezing order objector establishes certain matter section 82 5 substance subset 82 4 section 82 3 82 4 82 5 specify ground freezing notice freezing order question made plain opinion 82 read whole particular use indefinite article subsection 1 use definite article subsection 3 4 court power 82 3 82 4 82 5 may exercised freezing notice freezing order question made ground frozen property crime used emphasis added 151 section 83 permit court set aside freezing notice freezing order property frozen ground crime derived property provides 1 court may set aside freezing notice freezing order property frozen ground crime derived objector establishes likely property crime derived 2 court find property crime derived required decide whether property crime derived court may set aside freezing notice freezing order objector establishes likely objector owner property one 2 owner property b property effectively controlled person wholly partly derived realised property directly indirectly commission confiscation offence c objector innocent party relation property owner one innocent party relation property 3 objector establishes matter set subsection 2 b c fails establish matter set subsection 2 court may order property sold confiscation objector paid amount equal amount bear value property proportion objector share property bear whole property 4 order subsection 3 court specify proportion find objector share property 5 application dpp owner property court may set aside freezing notice freezing order property also order objector pay state amount assessed court amount equal value property time application 6 section 20 25 26 apply relation making order subsection 5 objector order criminal benefit declaration objector respondent relation declaration 7 making order section court may make necessary convenient ancillary order 152 term crime derived relation property defined 148 148 1 property wholly partly derived realised directly indirectly commission confiscation offence crime derived whether anyone charged convicted offence b anyone directly indirectly derived realised property commission offence identified c anyone directly indirectly derived realised property commission offence involved commission offence see also 148 2 153 incenturion trust company 2009 wasca 97 expressed opinion based reasoning relation 82 3 82 4 82 5 court power 83 2 83 3 exercisable freezing notice freezing order question made ground frozen property crime derived 154 section 83 materially different 82 83 provision comparable 82 3 doubt difference attributable generally egregious character crime derived property compared crime used property property crime used necessarily acquired result criminal activity whereas crime derived property necessarily acquired result criminal activity 155 section 82 1 comparable 83 1 82 4 comparable 83 2 82 5 comparable 83 3 82 6 comparable 83 4 156 curiously 82 contain provision comparable 83 7 84 3 87 6 157 act term confer court power make freezing order confer justice peace power issue freezing notice property ground crime used crime derived 43 8 however court may make freezing order property reasonable ground suspecting property crime used crime derived section 34 2 relevantly identical term relation power justice peace issue freezing notice opinion proper construction 43 8 34 2 context 82 83 act whole apparent reference 82 83 freezing notice freezing order made ground property question crime used crime derived freezing notice freezing order made 43 8 34 2 158 term innocent party found 82 3 b 82 4 c 83 2 c also 87 1 defined 153 unnecessary reason refer definition detail broadly generally term describes person way involved commission relevant confiscation offence know reasonable ground suspecting offence would committed took reasonable step prevent commission 159 section 84 permit court set aside freezing order property frozen 43 3 freezing order made property owned effectively controlled person person time given away production order made person application made person unexplained wealth declaration criminal benefit declaration crime used property substitution declaration production order dpp advises court application likely made within 21 day freezing order made b freezing order property frozen 43 5 freezing order made property owned effectively controlled person person time given away person charged offence dpp advises court person likely charged offence within 21 day freezing order made person could declared drug trafficker unders 32a 1 themisuse drug actif convicted offence section 84 also empowers court set aside freezing notice issued property unders 34 3 provision ofs 34 3 materially different ofs 43 5 160 section 84 read 1 court may set aside freezing order property frozen undersection 43 3 court find likely person respondent unexplained wealth declaration criminal benefit declaration crime used property substitution declaration effectively control property time given away 2 court may set aside freezing notice issued property undersection 34 3 freezing order property frozen undersection 43 5 court find likely person charged offence effectively control property time given away 3 court may make necessary convenient ancillary order 161 circumstance court may set aside freezing order 84 narrower circumstance court may set aside freezing order 82 83 162 section 85 86 87 concerned release property confiscated unders 6ors 7 significantly 85 86 87 apply property confiscated unders 8 163 85 1 person may apply court release property confiscated unders 6ors 7 section 85 2 provides application must made within 28 day person became aware reasonably expected become aware property confiscated provision 28 day period extended 164 state party proceeding application 85 see 86 165 section 87 empowers court hearing application 85 make order release confiscated property provides 1 hearing application section 85 court may order release property likely immediately confiscation property applicant owned property one 2 owner property b property effectively controlled person made criminal use property person wholly partly derived realised property directly indirectly commission confiscation offence c applicant become aware reasonably expected become aware property confiscated property liable confiscation undersection 6or7 applicant innocent party relation property e owner one innocent party relation property 2 court order release property property money amount equal amount money paid objector confiscation proceeds account b property money disposed property given objector c property money sold amount equal value property paid objector confiscation proceeds account 3 objector establishes matter set subsection 1 b c fails establish matter set subsection 1 e court may order release objector share property 4 order subsection 3 court specify proportion find objector share property 5 court make order subsection 3 objector paid confiscation proceeds account property money amount equal objector share money b property money amount equal amount bear value property proportion objector share property bear whole property 6 court may make necessary convenient ancillary order 166 section 87 applies generally confiscated property limited reference ground ground freezing notice freezing order made respect property question 167 however 87 1 c significantly restricts power court make order release confiscated property court must satisfied likely applicant become aware cannot reasonably expected become aware property confiscated property liable confiscation unders 6ors 7 168 circumstance court may order release confiscated property 87 narrower circumstance court may set aside freezing order 82 83 84 169 section 87 1 us word may context providing court may order release confiscated property incenturion trust company 2009 wasca 97 expressed preliminary view word may confer discretion residual discretion court rather 87 1 confers power must exercised upon court satisfied relation existence matter specified par e subsection generally seefinance facility pty ltd v federal commissioner taxation 1971 hca 12 1971 127 clr 106 134 135 coal allied operation pty ltd v australian industrial relation commission 2000 hca 47 2000 203 clr 194 19 leach v queen 2007 hca 3 2007 230 clr 1 38 170 various provision inpt 6manifest parliament general intention protect proprietary interest innocent party confiscation purpose provide innocent party limited relief mean proprietary estate interest innocent party confiscated unders 6ors 7 171 finally relation topt 6 note person whose property affected ex parte freezing order may apply set aside reason absence jurisdiction material non disclosure changed circumstance seebennett co firm v director public prosecution wa 2005 wasca 141 2005 31 war 212 64 mansfield v director public prosecution wa 2006 hca 38 2006 226 clr 486 8 interaction 79 objection provision inpt 6172 section 79 regulates filing objection confiscation frozen property 79 1 person may file objection confiscation frozen property section 79 2 limit time within objection must filed copy freezing notice freezing order served objector section 79 3 limit time within objection must filed copy freezing notice freezing order served objector 79 4 court may allow time 79 2 79 3 even time filing objection expired 173 provision 79 general application frozen property confine right file objection reference particular ground ground freezing notice freezing order made 174 however 79 must read construed provision ofpt 6which concerned objection confiscation 175 81 1 court hearing objection may set aside freezing notice freezing order extent permitted 82 83 84 property question frozen two ground court set aside freezing notice freezing order relation ground freezing notice freezing order continues force made remaining ground see 81 2 176 section 82 permit court set aside freezing notice freezing order property frozen ground crime used property relevantly freezing order property made pursuant tos 43 8 reasonable ground suspecting property crime used 177 section 83 permit court set aside freezing notice freezing order property frozen ground crime derived property relevantly freezing order property made pursuant tos 43 8 reasonable ground suspecting property crime derived 178 section 84 1 permit court set aside freezing order property frozen unders 43 3 freezing order may made unders 43 3 respect property owned effectively controlled person person time given away production order made person b application made person unexplained wealth declaration criminal benefit declaration crime used property substitution declaration production order c dpp advises court application likely made within 21 day freezing order made 179 section 84 2 permit court set aside freezing order made unders 43 5 freezing order may made unders 43 5 respect property owned effectively controlled person person time given away person charged offence b dpp advises court person likely charged offence within 21 day freezing order made person could declared drug trafficker unders 32a 1 themisuse drug actif convicted offence 180 incenturion trust company 2009 wasca 97 expressed obiter dictum view effect 79 read construed provision ofpt 6which concerned objection confiscation particular 81 82 83 84 apparent despite general language 79 notice objection confiscation frozen property may filed objector claim property question frozen ground ground respect court may grant relief 82 83 84 adhere view 181 right person filed objection obtain relief relation freezing notice freezing order co extensive power court 82 83 84 grant relief particular circumstance objector may respondent freezing notice freezing order alternatively objector may person claim innocent party seek establish fact matter entitle innocent party relief 82 83 organisation balance reasons182 convenient first examine critical question dealt convened hearing 7 may 2010 examine critical question dealt initial hearing 15 december 2009 critical question 1 2 dealt convened hearing 7 may 2010does automatic confiscation unders 7 1 extend frozen property liable confiscated unders 6ors 8 automatic confiscation unders 7 1 confined property frozen pursuant freezing order made unders 43 8 183 critical question 1 2 may considered together mentioned unnecessary reason separately consider position respect freezing notice 184 ambit operation ofs 6 7ands 8must considered determining whether automatic confiscation 7 1 act extends frozen property liable confiscated 6 8 first examine 6 8 finally 7 185 14 court make unexplained wealth declaration b 20 court make criminal benefit declaration c 24 1 court make crime used property substitution declaration respondent liable pay state monetary amount equal amount specified declaration 186 25 respondent must pay specified amount within time allowed provision section 26 1 enables frozen property owned respondent taken consent payment part payment specified amount section 26 2 provides part specified amount paid within time allowed 25 1 relevantly frozen property owned respondent available purpose satisfying respondent liability pay specified amount 187 6 read 26 frozen property confiscated given taken towards satisfaction respondent liability 14 20 24 case may pay specified monetary amount 188 section 43 3 b empowers court make freezing order property owned effectively controlled person person time given away application made person unexplained wealth declaration criminal benefit declaration crime used property substitution declaration production order section 43 3 c empowers court make freezing order respect property dpp advises court application likely made person relevantly unexplained wealth declaration criminal benefit declaration crime used property substitution declaration production order within 21 day freezing order made 189 freezing order 43 3 b c also 43 3 made respect person property 190 section 84 1 empowers court set aside freezing order property frozen 43 3 court find likely person respondent unexplained wealth declaration criminal benefit declaration crime used property substitution declaration effectively control property time given away section 84 1 however refer person respondent production order 191 relationship 6 14 20 24 25 26 43 3 b c 79 1 81 84 1 particular 14 20 24 concerned imposition respondent liability pay specified monetary amount state within time allowed 25 b apparent purpose freezing order 43 3 b c obtain security respondent benefit state respect respondent prospective liability pay specified monetary amount state 14 20 24 c court declares liability respondent pay specified monetary amount state 14 20 24 property frozen 43 3 b c may given amount paid within time allowed 25 1 taken 26 towards satisfaction amount property given taken 26 towards satisfaction respondent liability 14 20 24 6 property confiscated e 79 1 read 84 1 confers person right file objection confiscation property frozen pursuant freezing order 43 3 b c f hearing objection 81 read 84 1 confers power court set aside freezing order 192 section 84 1 applies freezing order made 43 3 apply freezing order made provision act 193 confiscation 6 confined property subject freezing order made 43 3 property subsequently given taken satisfaction person liability 14 20 24 194 turn 8 195 8 1 person declared drug trafficker unders 32a 1 themisuse drug actas result convicted confiscation offence committed commencement act following property confiscated property person owns effectively control time declaration made b property person gave away time declaration made whether gift made commencement act similar provision made 8 2 relation person taken declared drug trafficker 159 2 act 196 section 43 5 empowers court make freezing order property owned effectively controlled person person time given away person charged offence dpp advises court person likely charged offence within 21 day day freezing order made b person could declared drug trafficker unders 32a 1 themisuse drug actif convicted offence 197 freezing order unders 43 5 made respect person property 198 section 84 2 empowers court relevantly set aside freezing order property frozen unders 43 5 court find likely person charged offence effectively control property time given away 199 act impose declared drug trafficker liability pay specified monetary amount compare 14 20 24 rather 8 1 confiscates property declared drug trafficker owns effectively control time declaration made unders 32a 1 themisuse drug act property person gave away time declaration made whether gift made commencement act confiscation declared drug trafficker property occurs automatically immediately force 8 1 upon declaration made unders 32a 1 themisuse drug act section 8 2 make similar provision relation person taken declared drug trafficker 159 2 act 200 apparent purpose freezing order 43 5 obtain security respondent benefit state respect respondent prospective liability property confiscated state 8 1 8 2 201 section 79 1 read 84 2 confers person right file objection confiscation property frozen pursuant freezing order 43 5 hearing objection 81 read 84 2 confers power court set aside freezing order 202 section 84 2 applies freezing order made 43 5 apply freezing order made provision act 203 confiscation 8 confined property subject freezing order made 43 5 relation person subsequently declared drug trafficker taken declared drug trafficker 204 turn 7 205 7 1 frozen property confiscated objection confiscation property filed 28th day service cut date property 206 7 2 objection confiscation frozen property filed 28th day service cut date property property confiscated objection objection one finally determined b property subject freezing notice freezing notice cancelled set aside c property subject freezing order freezing order set aside mentioned unnecessary reason separately examine provision relating freezing notice 207 section 7 1 assumes right file objection confiscation frozen property operates objection filed section 7 2 assumes existence right file objection confiscation frozen property operates objection filed 208 ambit operation 7 1 must ascertained construing provision context 7 2 course provision act whole 209 freezing order 43 8 made respect property made respect person 210 section 79 1 read 82 confers person right file objection confiscation property frozen pursuant freezing order 43 8 reasonable ground suspecting property crime used hearing objection 81 read 82 confers power court set aside freezing order circumstance specified 82 3 4 7 211 similarly 79 1 read 83 confers person right file objection confiscation property frozen pursuant freezing order 43 8 reasonable ground suspecting property crime derived hearing objection 81 read 83 confers power court set aside freezing order circumstance specified 83 2 5 212 7 2 objection confiscation frozen property filed within period stipulated provision property confiscated relevantly objection finally determined freezing order set aside subject 7 1 confiscation 7 2 mean property frozen pursuant freezing order 43 8 may confiscated 213 apart 43 3 43 5 43 8 freezing order property may made 43 1 apparent 43 1 read 43 2 freezing order 43 1 made respect property made respect person 214 apparent purpose freezing order 43 1 43 3 obtain security property question benefit state pending investigation pursuant examination order monitoring order suspension order production order relation relevant property investigation may may result substantive action taken dpp respect property question alternatively relevant property respondent owns effectively control time given away relevant property 215 none provision 82 83 84 refers property frozen pursuant freezing order 43 1 property frozen solely pursuant freezing order 43 1 liable confiscated 6 7 8 216 section 84 refers property frozen pursuant freezing order 43 3 43 3 production order made person court may make freezing order property owned effectively controlled person person time given away however 84 1 freezing order 43 3 may set aside court find likely person respondent unexplained wealth declaration criminal benefit declaration crime used property substitution declaration effectively control property time given away requisite finding court relate making production order 217 opinion automatic confiscation frozen property 7 1 extend frozen property liable confiscation 6 8 7 2 automatic confiscation frozen property 7 1 confined property frozen pursuant freezing order made 43 8 pursuant freezing order made 43 8 another ground ground 218 reason opinion follows 219 first freezing order 43 8 made respect property basis reasonable ground suspecting property crime used crime derived freezing order made respect person contrast freezing order 43 3 b c made respect person property similarly 43 3 b c contrast 43 8 freezing order 43 5 made respect person property 220 secondly essential precondition confiscation 6 making court unexplained wealth declaration criminal benefit declaration crime used property substitution declaration specification declaration amount respondent liable pay 14 20 24 essential precondition confiscation 6 failure respondent pay specified amount within time allowed 25 respondent consent 26 1 taking frozen property payment part payment relevant amount 221 thirdly objection procedure 84 1 relate whether unexplained wealth declaration criminal benefit declaration crime used property substitution declaration made rather 84 1 concerned whether person respondent declaration owns effectively control frozen property time given away contrast 7 2 confiscation frozen property 6 linked conditional upon adverse determination court objection filed confiscation frozen property 222 fourthly essential precondition confiscation 8 making drug trafficker declaration relation person unders 32a 1 themisuse drug actor person taken declared drug trafficker 159 2 act 223 fifthly objection procedure 84 2 relate whether person declared drug trafficker person taken declared drug trafficker rather 84 2 concerned whether person charged offence could result person upon conviction declared drug trafficker owns effectively control frozen property time given away similarly 6 contrast 7 2 confiscation frozen property 8 linked conditional upon adverse determination court objection filed confiscation frozen property 224 sixthly essential precondition confiscation 7 2 objection filed within stipulated period finally determined freezing order set aside 225 seventhly objection procedure 82 83 relates relevantly whether objection freezing order set aside ground objector established likely property frozen freezing order crime used crime derived case may see 82 1 83 1 mentioned provision 82 83 permit court set aside freezing order objector establishes amongst thing innocent party see also 82 7 83 5 226 eighthly although confiscation occurs 7 1 objection filed within stipulated period objection confiscation may filed relation property liable confiscation 6 7 8 significant 7 1 7 2 subsection within section 7 1 7 2 use identical language relation period within objection must filed 7 1 deal confiscation objection filed 28th day service cut date 7 2 deal confiscation objection filed 28th day service cut date language 7 1 indicate intended apply property liable confiscated 6 8 227 ninthly apart 43 3 43 5 43 8 court may make freezing order property 43 1 essence examination order monitoring order suspension order force applied relation property mentioned freezing order 43 1 intended confer security state pending investigation relation property none provision 82 83 84 refers property frozen pursuant freezing order 43 1 property frozen solely pursuant freezing order 43 1 liable confiscated 6 7 8 explain 247 254 certain circumstance dpp implied duty request freezing order made 43 1 set aside pursuant 48 4 49 2 case may court may also set aside freezing order certain circumstance pursuant express incidental power 83 7 84 3 alternatively pursuant incidental power view implicit 82 228 tenthly preferred construction 6 7 8 compatible 48 5 f 49 3 f 48 5 f freezing order registrable real property made 43 3 basis application declaration another order likely made applicant freezing order must lodge memorial registrar title property confiscated section 6 7 8 section 49 3 f make relevantly identical provision respect freezing order property except registrable real property made 43 3 229 48 2 freezing order registrable real property stop force memorial sub 4 5 6 7 relation property registered 113 1 however 48 3 freezing order made two ground memorial lodged sub 4 5 relation ground freezing order continues force made remaining ground 230 section 48 4 deal freezing order registrable real property made 43 1 basis application another order likely made 48 5 freezing order registrable real property made 43 3 basis application declaration another order likely made 48 6 freezing order registrable real property made 43 5 basis person likely charged offence 48 7 freezing order registrable real property made 43 8 basis property suspected crime used crime derived section 49 contains similar provision relation property except registrable real property 231 point compatibility 48 5 f 49 3 f preferred construction 6 7 8 may easily understood reproduce 48 5 freezing order registrable real property made section 43 3 basis application declaration another order likely made applicant freezing order must lodge memorial registrar title freezing order made basis advice given court section 43 3 c application declaration order made within 21 day date freezing order b application declaration order withdrawn c application declaration order finally determined court make declaration order case declaration declaration made respondent liability pay amount section 14 20 24 satisfied whether frozen property given taken satisfaction liability e freezing order set aside ground request applicant freezing order proceeding objection f property confiscated section 6 7 8 232 section 48 5 set circumstance freezing order registrable real property stop force freezing order may course made multiple ground 48 recognised expressly 48 3 necessary implication 48 5 section 48 5 f recognises freezing order registrable real property made 43 3 property question confiscated example 8 freezing order also made 43 5 applicant must lodge memorial necessity memorial lodged pending determination subsisting application unexplained wealth declaration criminal benefit declaration crime used property substitution declaration contemplated 43 3 b 6 relevant property already confiscated 8 legislative rationale drafting technique manifest 48 5 also apparent 48 4 48 6 48 7 233 eleventhly property alleged crime used crime derived burden respondent establish relevantly 82 1 83 1 crime used crime derived case may respondent fails make case property confiscated 7 2 section 7 1 concerned ensure property may confiscated 7 2 remain frozen indefinitely respondent property frozen ground allegedly crime used crime derived must file objection within stipulated period fails file objection within time property automatically confiscated 7 1 despite provision 82 83 objection innocent party innocent party failed lodge objection within stipulated period property question confiscated 7 1 parliament provided innocent party limited relief enabling apply certain circumstance 85 read 87 release confiscated property 234 twelfthly construction 6 7 8 prefer enables 79 4 sensible practical operation 79 4 court may allow time 79 2 79 3 filing objection even time filing objection expired court held extension time 79 4 may granted frozen property already confiscated seecenturion trust company 2009 wasca 97 automatic confiscation 7 1 extend frozen property liable confiscation 6 8 7 2 extension time may granted 79 4 filing objection 84 property question confiscated pre condition confiscation 6 8 satisfied section 79 4 however operate 7 2 applies frozen property automatic confiscation 7 1 consequence respondent failure file objection within stipulated period 235 thirteenthly true second reading speech relating bill upon enactment became act responsible minister said part 2 bill provides automatic confiscation frozen property absence objection make operation bill efficient effective example property person frozen basis application unexplained wealth criminal benefit declaration made example person object confiscation property automatically confiscated addition application made person pay crown specified amount amount unexplained wealth criminal benefit emphasis added western australia parliamentary debate legislative assembly 29 june 2000 8612 236 statement reliable guide proper construction act minister reference property frozen basis application unexplained wealth criminal benefit declaration made must relevantly freezing order 43 3 b c opinion scheme act statutory language support contention person property frozen pursuant freezing order 43 3 b c property automatically confiscated absence objection contention addition automatic confiscation frozen property absence objection state make application person obtain order court person pay amount specified unexplained wealth declaration criminal benefit declaration 237 fourteenthly although 46 contains detailed provision service copy freezing order person may claim interested party provision inconsistent preferred construction 6 7 8 glossary act interested party relation frozen property defined mean person interest property would enable person succeed objection confiscation property apparent definition context act whole person interested party person interest relevant property interest would enable person succeed objection person satisfies court hearing objection relevant matter specified 82 83 84 applicable 238 46 4 set information must set notice accompanying service copy freezing order significance 46 6 merely requires relevantly notice advise recipient effect relevant property may beconfiscated automatically act unless objection confiscation property filed notice tell recipient may beeligible file objection emphasis added follow person copy freezing order must served necessarily entitled file objection 239 reason advanced demonstrate opinion automatic confiscation frozen property 7 1 extend frozen property liable confiscation 6 8 7 2 satisfied automatic confiscation frozen property 7 1 confined property frozen pursuant freezing order made 43 8 pursuant freezing order made 43 8 another ground ground 240 counsel dpp submitted right file objection confiscation 79 extends person claiming set aside freezing order 82 83 84 b person interest frozen property interest automatically confiscated unless future event cause freezing order stop force accordance 48 49 241 effect submission confiscation deferred matter issue substantive proceeding commenced dpp determined court result court determination substantive proceeding freezing order stop force confiscation occur 7 2 provision operate unless freezing order continues determination objection 242 opinion dpp submission issue rejected inconsistent analysis legislative scheme also find support language structure 48 49 81 82 83 84 critical question 3 dealt convened hearing 7 may 2010if automatic confiscation 7 1 extends property frozen pursuant freezing order made 43 3 b c confiscation provisional contingent upon dpp obtaining declaration respondent pt 3 243 reason given automatic confiscation frozen property 7 1 extend property frozen pursuant freezing order made 43 3 b c 43 8 critical question 4 dealt convened hearing 7 may 2010when confiscation occurs 6 8 confiscated respondent declaration pt 3 offender 8 case may limited interest property available confiscation 244 question confiscated 6 8 respondent declaration pt 3 offender 8 case may limited interest property available confiscation arose context critical question 3 245 unnecessary deal critical question 4 view conclusion automatic confiscation frozen property 7 1 extend property frozen pursuant freezing order made 43 3 b c 43 8 246 note however completeness dpp conceded properly opinion property frozen 43 3 43 5 confiscated confined estate interest property respondent owns effectively control gave away critical question 1 dealt initial hearing 15 december 2009is statutory mechanism bringing freezing order made 43 1 b end 247 48 4 freezing order registrable real property made 43 1 basis application another order likely made applicant freezing order must lodge memorial registrar title par b c e 48 4 satisfied section 48 2 provides freezing order registrable real property stop force relevantly memorial 48 4 relation property registered 113 1 248 similar provision relation property except registrable real property contained 49 2 particular 49 2 freezing order property except registrable real property made 43 1 basis application another order likely made freezing order stop force soon one par b c e 49 2 happens 249 section 83 7 provides context court setting aside freezing order property frozen ground crime derived making order 83 court may make necessary convenient ancillary order section 84 3 provides context court setting aside freezing order property frozen 43 3 43 5 court may make necessary convenient ancillary order however 82 empowers court set aside freezing order property frozen ground crime used contain express provision effect contained 83 7 84 3 87 6 cogent reason principle policy omission satisfied proper basis differentiating respect 82 one hand 83 84 court implied incidental power relation 82 comparable express incidental power 83 7 84 3 250 parliament could intended freezing order property made court 43 1 b ground dpp advice court application examination order monitoring order suspension order made relation property likely made relation property within 21 day freezing order made continue indefinitely substantive action taken dpp making examination order monitoring order suspension order case may 251 opinion freezing order property made court 43 1 b ground dpp advice court application relevantly examination order likely made relation property within 21 day freezing order made b dpp fact make application examination order within period c examination order fact granted substantive action taken dpp within reasonable period making examination order within reasonable period examination conducted pursuant order dpp implied duty request freezing order set aside 48 4 49 2 case may 252 parity reasoning implied duty also exists freezing order property made court 43 1 substantive action taken dpp within reasonable period making order within reasonable period object specified order satisfied achieved 253 opinion freezing order property made court 43 1 b ground dpp advice court application relevantly examination order likely made relation property within 21 day freezing order made b dpp fact make application examination order within period c examination order fact granted examination order ancillary another substantive ground freezing order made e court decides pursuant 82 83 84 freezing order set aside substantive ground court may also set aside freezing order extent based order made 43 1 b pursuant express implied incidental power 254 parity reasoning freezing order property made court 43 1 order question ancillary another substantive ground freezing order made court subsequently decides objection pursuant 82 83 84 freezing order set aside substantive ground court may also set aside freezing order extent based order made 43 1 pursuant express implied incidental power critical question 2 dealt initial hearing 15 december 2009if freezing order made multiple ground fall within 82 83 84 automatic confiscation occur 7 1 freezing order set aside ground made 255 reason given automatic confiscation frozen property 7 1 extend property frozen pursuant freezing order made 43 3 b c 43 8 mentioned automatic confiscation frozen property 7 1 confined property frozen pursuant freezing order made 43 8 pursuant freezing order made 43 8 another ground ground 256 accordingly property frozen freezing order made multiple ground property may automatically confiscated 7 1 ground include 43 8 condition automatic confiscation specified 7 1 satisfied critical issue 3 dealt initial hearing 15 december 2009if pt 6 applies freezing order set aside 82 83 84 appellant appeal fact file objection confiscation property 257 opinion appellant appeal fact file objection confiscation property 258 notice motion dated 15 december 2003 set aside freezing order merely challenged jurisdiction court make freezing order either form substance constitute objection 79 appellant submission notice motion constituted objection 79 inconsistent appellant conduct engaging litigation 15 december 2003 basis filed objection 79 also inconsistent concession counsel appellant made hearing 18 april 2008 application dated 7 july 2004 dismissed extension time granted 259 proposed ground appeal cacv 79 2009 unmeritorious would therefore refuse grant extension time appeal 260 however appellant made proposed ground appeal 1 2a 2 3 cacv 81 2009 261 although substantial delay filing appeal notice cacv 81 2009 satisfied interest justice grant extension time appeal leave appeal required impugned decision interlocutory character reason granting extension time follows 262 first issue raised proposed ground appeal particular ground 1 2a difficult complex secondly issue raised general public importance arise context statutory provision potentially draconian application respect le clear even ambiguous thirdly appellant suffer significant prejudice extension time leave appeal granted substantial sum money entitled confiscated state even though event happened mr smith conviction relevant confiscable offence quashed court prosecuting authority decided retried despite court ordered retrial fourthly dpp would suffer relevant prejudice extension leave granted 263 unusual fact circumstance present case extension time appeal granted cacv 81 2009 appeal allowed conclusion264 cacv 79 2009 application extension time appeal refused appeal dismissed 265 cacv 81 2009 application extension time appeal granted appeal allowed 266 counsel heard precise form order made

Laurie v New South Wales Aboriginal Land Council & Ors; New South Wales Aboriginal Land Council v Laurie & Ors (No 2) [2009] NSWLEC 73 (13 May 2009).txt

laurie v new south wale aboriginal land council or new south wale aboriginal land council v laurie or 2 2009 nswlec 73 13 may 2009 last updated 19 may 2009new south wale land environment courtcitation laurie v new south wale aboriginal land council or new south wale aboriginal land council v laurie or 2 2009 nswlec 73parties applicant first cross defendantpatricia helen lauriefirst respondent cross claimantnew south wale aboriginal land councilsecond respondentregistrar aboriginal land right act 1983second cross defendantbrian decelisthird cross defendantelectoral commissioner new south walesfile number 40616 2008catchwords whether court attempt resolve issue dispute partieslegislation cited aboriginal land right act 1983s 132 2 land environment court act 1979s 22uniform civil procedure rule 2005r 14 14cases cited laurie v new south wale aboriginal land council or new south wale aboriginal land council v laurie or 2009 nswlec 58national park wildlife service anor v stable perisher pty ltd 1990 20 nswlr 573coram pain jdates hearing 11 may 2009judgment date 13 may 2009legal representativesapplicant first cross defendantmr dockersolicitorsconroy stewart spagnolofirst respondent first cross claimantmr j kirksolicitorschalk fitzgerald lawyerssecond respondentmr mcavoyinstructed byregistrar aboriginal land right act 1983second third cross defendantsms c sprucesolcitorscrown solicitorjudgment land andenvironment courtof new south walespain j13 may 200940616 2008 laurie v nsw aboriginal land council or new south wale aboriginal land council v laurie or 2 judgment1her honour handed judgment inlaurie v new south wale aboriginal land council or new south wale aboriginal land council v laurie or 2009 nswlec 58 laurie 1 4 may 2009 make final order considered party may wish raise additional issue light finding made identified concluding remark 260 261 judgment referred tos 22of theland environment court act1979

Ollenburg v Department of Natural Resources and Mines [2003] QLC 15 (7 March 2003).txt

land court queensland citation ollenburg v department natural resource mine 2003 qlc 0015 party john f ollenburg jnr applicant v chief executive department natural resource mine respondent file av2001 0044 division land court queensland proceeding appeal unimproved valuation land shire kilkivan valuation land act 1944 delivered 7 march 2003 delivered brisbane heard gympie member mr wenck order appeal disallowed valuation chief executive amount two hundred fifty five thousand dollar 255 000 1 october 1999 affirmed catchword statutory valuation valuation land act 1944 unimproved value unimproved value relativity valuation burden proof ground appeal unimproved value weed pest highway frontage appearance mr jf ollen burg applicant person mr j rourke respondent 2 1 1 october 1999 respondent made unimproved valuation land owned applicant described lot 46 pl mz1142 slpf2156 lot 21 plan mz134 lot 30 plan mz735 lot 2 44 plan mz942 pari sh boonimba containing 3 738 ha 2 valuation first issued 27 march 2000 amount 275 000 represented 50 increase previous valuation 1 october 1997 general 50 increase applied chief ex ecutive forest grazing land area shire object ion valuation reviewed reason associated allowance made development cost sale analysis increase forest gr azing land brought back 40 previous valuation valuation subject pr operty reduced basis 255 000 valuation appealed 3 ground appeal fer effect unimproved value alleged caused detrimental feature land va rious disability change availability natural water dam proposal effect vegeta tion management plan highway frontage weed infestation 4 mr ollenburg tendered st atement gave oral evidence support ground appeal 5 valuation appealed made mr pj haydon gistered valuer employ respondent called give evidence upport valuation background appeal kilkivan shire 6 referred earlier chief executive unimproved valuation forest grazing land kilkivan shire 1 october 1999 itially represented 50 increase level value previously existed review result high level objection increase reduced 40 previously existing relativity valuation disturbed 7 significant number owner remained dis atisfied valuation reviewed result obj ections exercised right appeal court following negotiation party four appeal sele cted repres entative primary grievance four appeal heard court predominant issue identified extent increase th e previously existing valuation sale evidence provides liable evidence market value date valuation unimproved value component sale evidence added value treatment iginal regrowth forest timber sale property 3 another issue necessarily representative nature related existing relativity valuation various property 8 finding relative representative case relevant sale evidence generally supported chief executive valu ation representing 40 increase ground general reduction ground relating market evidence warranted disturbance general level relativity unimproved valuation fo rest grazing land throughout shire however individual appeal determined merit alteration found warranted specific case reason ndividual specific property 9 subsequent unreported decision published 10 may 2002 number owner remained reluctant withdraw thei r appeal allegation disability specific property wh ich chief executive given sufficient consideration remaining appeal set h earing subsequent direction hearing discussion took place pa rties two appeal one subject matter settled withdrawn 10 matter specific appeal th e relevant evidence discussed following various heading valuation methodology 11 mr ollenburg critical valuation performed relevant date absence discussion owner specific inspection valuer 12 mass valuation methodology ch ief executive adopted base relativity previously existed valuation forest grazing land relativity evolved past valua tion procedure insp ections prior hearing mr haydon inspected subject pr operty purpose defending valuation relativity valuation 13 mr ollenburg addressed question rela tivity valuation appealed valuation applied sale property basis analysis sale valuation applied othe r forest grazing land concern opinion inherent va lue subject land relative inherent value past altered due decr easing carrying capacity increasing disability 14 mr haydon concerned rela tivity releva nt date valuation subject land valuation land locality su ffered disability either similar specifically different effect one representative appeal decision saw relevant case nr rg kennedy v chief executive 4department natural resource mine matter valuation aggregation similar area subject land duced reason associated water problem area unavaila ble land specifically identified infestation wiregrass accept th subject land suffe red disability extent insufficient allowance made carrying capacity 15 mr ollenburg evidence dur ing 30 year period si nce became involved property carrying capacity duced 35 opinion result drought overstocking duri ng drought decline th e quality natural pasture increase density tree decrease natural water gully waterholes 16 mr haydon made specific estimate carrying capacity po tential land date valuation challenge mr ollenburg evid ence regard opinion problem facing subject land consistent forest grazing land generally natural water 17 mr haydon opinion wate r supply currently available altered since date previous valuation permanent artificial water available report contained following subject land artificially watered gully dam underground water available salty perman ent water available boonara creek hole annerbranch sic boonara creek considered parcel adequately watered normal season contrast supply availabl e relevant part kennedy aggregation found court decl ined relevant period main road frontage 18 subject property severed busy burnett highway mr ollenburg believed highway frontage asset belief reversed one primary concern related weed introduced vehicle infe sted locality seed soil deposited road pa rticularly rain finding way drain adjoining land accep ted problem could occur lesser used road extent experience highway another significant problem caused fire emanati ng road often deliberately lit destroying large area pasture consequent associated stock loss management cost also concerned w ith quantity rubbi sh particularly drink 5cans bottle find necessary remove road reserve time time 19 working disability perspective mr ollenburg found si gnificant increase year traffic related difficulty oving stock one side highway 20 mr haydon oral evidence accepted highway frontage brings problem associated weed fire nd rubbish saw st ill balanced market perception advantage highway expo ure access outweigh disadvantage experience one complaint raised number kilkivan shire landowner perceived disabi lity location removed highway frontage bitumen road se en market evidence suggest highway frontage detrimental effect value grazing proper tie relevant date 21 case set valuati report allowance 2 5 made acceptance fact working difficulty existed associated long main road severance aggregation weed 22 problem weed mr olle nburg made reference included wiregrass parthenium african lovegrass nd giant rat tail latter tw particular associated main road said spent considerable sum attempt eradicate manage infestation introduced ex ternal source pa rthenium introduced upstream property creek flood spread cattle pasture significant number location staked identification regular spraying maintenance 23 mr haydon accepted parthenium b een introduced property well upstream one occasion saw isolated occurrence inquiry suggested property upstream affected mr ollenburg suspec ted source parthenium upstream f eedlot operation adamant parthenium become established upstream property opinion risk outbreak significant 24 mr ollenburg opinion spread wire grass one factor affecting carrying capacity subject land including better quality land western severance wiregrass spread one factor considered kennedy appeal opinion shoul also consideration aware whether regard ed district problem 6 25 mr haydon oral evidence relative wire grass spread given specific consideration question might affect unimproved va lue expected wiregrass might getting little worse eastern side highway surprised learn becoming increasing problem better quality eastern severance well ing case formed opinion wiregrass infestation gett ing worse throughout whole outh burnett district made specific allowance matter accept infestation kennedy matter serious location 26 regard african lovegrass giant rat tail mr ha ydon aware inspection weed outbreak common locality reasonable management control however area east kilkivan giant rat tail particular emerged major problem propertie identifiable deleterious effect value 27 mr ollenburg concern weed infestation problem even one facing locality general sufficiently understood considered valuation process barambah creek dam proposal 28 mr ollenburg concerned regarding th e public knowledge government interest construction dam barambah creek project went ahead dam water would back boonara creek inundate majority alluvial flat subject property reducing mr ollenburg opinion 50 productivity whole property opinion possibility signif icant deleterious effect market value land mr haydon accepted certainty dam project would proceed foreseeable future could buyer resistance affected property became aw mr ollenburg concern made inquiry relevant section de partment informed barambah creek proposal one 30 40 water st orages mooted future consideration throughout queensland howeve r barambah creek proposal included 10 year forward planning ore likely next 20 30 year ever aware one prope rty would affected proposal ever became reality sold since date valuation unable establish dam proposal ha effect sale price mr ollenburg able inform court th e sale proper ty resale shortly thereafter made ny specific inquiry circumstance sale 7vegetation management plan 29 mr ollenburg believed 50 property classed dominant cleared 30 mr haydon valuation reduced hectarage rate overall included report classification nature land value applied classification classification set wi th applied value indicated follows 230 ha 6 heavier blue gum br oad leaf iron bark apple flat boonara creek frontage land suitable pasture development 300 per ha 1900 ha 51 easy modera te forest grazing ridge hill originally timbered narrow leaf broad leaf ironbark spotted gum influence bloodwood stony grey brown soil area suitable tordoning applied value 85 per ha 1350 ha 36 moderate steep forest ridge hill timbered narrow leaf ironbark bloodwood spotted gu area stony limited development potentia l applied value 22 50 per ha balance area 258 ha 7 steep una vailable scrub forest located southern central part aggregation nil value 31 included report copy vegetation management plan referred mr ollenburg oral evidence mr haydon plan indicated area vegetation classified enda ngered development prohibited however area identified final classification land type unavailable carrying value 32 area land identified plan car rying vegetation concern limited development poten tial area identified mr haydon corresponding generally hi third land classification wh ich considered inherently poor country unsuited economic development existing vegetation 33 mr haydon opinion vegetation mana gement plan nothi ng confirm land classification hi storically recognised department 34 although mr ollenburg conceded orig inal estimate area affected vegetation management plan excessive argued absence plan area concern still potenti al selective tor treatment straighter timber left later harvesting suggested land classification would eventually improved time resource allowed potential lost 8findings valuation methodology 35 representative case s valuation methodology adopted chief executive discussed f ound land appeal court wilson v chief executive department land 1994 95 15 qlcr 63 s valuation process offend statute mr haydon inspected th e property prior th e hearing find acceptable valuation process followed relativity valuation 36 mr ollenburg approach relativity rela te declining produc tivity subject land increasing disabili tie however valuation term relativity valuation intended relate valuation history subject land instead relativity valua tion subject land valuation applied sale property othe r property comparable nature 37 mr ollenburg accepted course hearing consequent upon finding representative case necessary show disability subject land set apart otherwise compar able forest grazing land locality specific disability raised wi dealt separately carrying capacity 38 mr ollenburg evidence accepted effect pr oductive capacity subject land decreased time probably reason given however also accept mr haydon evidence reason declining productivity generally consistent throughout locality ha change specific subject land would altered date valuation previously existing relativity comparable land 39 find reason alter valuation subject land relevant date ground decreasing productivity natural water 40 similar comment relate carrying capacity applicable heading decreasing water supply disabil ity land capable distinguished fact kennedy matter main road frontage 41 previously existing relativity th e subject valuation valuation comparable main road frontage land retained mr haydon evidence interpretation market perception accepted 9 weed 42 kennedy matter evidence wiregrass infestation serious problem property elsewhere shire 43 dispute subject propert susceptible weed invasion however evidence court matter fr om mr haydon property weed problem management consiste nt problem experienced locality generally 44 risk parthenium weed infestation emer ge future predicted mr ollenburg problem intens e subject land elsewhere proved evidence would need given weight future valuation appeal process 45 persuaded however va luation process levant date weed problem given insufficient consideration barambah creek dam proposal 46 despite opportunity havi ng arisen sale resa le potentially affected property evidence provided court support mr ollenburg argument correct rket property deleteriously affected specific investigation made unders tandable wish become involved business people burden proving ground appeal carried appellant 47 mr ollenburg see even stronger term nonsense fo r suggestion made soon th e proposal uncertain th e market value potentially affected land reflect identifiable deleterious effect nevertheless marketplace provide necessary proof one way regular revaluation process allows matter reviewed future 48 accept deleterious effect unimproved value proved date valuation direct con equence dam proposal vegetation management plan 49 evidence clear area land carrying endangered vegetation assessed carrying value regardle s vegetation management plan 50 need obtain permit improve la nd area concern doubt seen marketplace another bureau cratic burden however case subject land area concern valued land suitable limited economic development mr ollenburg agrees land poor 10quality see treatment capable improving available pasture usable quality remaining timber 51 land vegetation concern valued basis full economic development potential effect vegetation management plan would require specific consideration howeve r satisfied basis valuation made fu rther allowance warranted conclusion 52 section 33 valuation land act 1944 provides follows every valuation altera tion valuation land made purporting made th act ch ief executive shall deemed correct pr oved otherwise upon objection appeal altered altered 53 section 56 act relevantly provides follows 1 appeal shall instituted filing land court registry notice appeal 2 notice shall state groun d appeal appeal shall limited ground stated burden proving every ground shall upon owner 3 notice shall also state amount opinion appellant valu ation subject land 54 case valuatio n appealed amount 255 000 mr ollenburg estimate unimproved value land 150 000 55 cogent basis provid ed support specific estimate doubt land suffers various disabilitie unable find valuation made incorrect principle rega rd paid effect disability unimproved value th valuation proved wrong order appeal disallowed valuation chief executive amount two hundred fifty five thousand dollar 255 000 1 october 1999 affirmed wenck member land court

ANNILAX ENTERPRISES PTY LTD (Migration) [2020] AATA 211 (31 January 2020).txt

annilax enterprise pty ltd migration 2020 aata 211 31 january 2020 last updated 19 february 2020annilax enterprise pty ltd migration 2020 aata 211 31 january 2020 decision recorddivision migration refugee divisionapplicant annilax enterprise pty ltdcase number 1816423dibp reference bcc2016 1628774member mr normandate 31 january 2020place decision sydneydecision tribunal affirms decision review refuse nomination statement made 31 january 2020 11 53amcatchwordsmigration application approval nomination position direct entry nomination stream employment least two year financial capacity annual wage expenditure current full time part time employee closure one restaurant plan expansion current staffing level need staff subject restaurant employer multiple application department tribunal decision review affirmedlegislationmigration act 1958 cth s 359 2 359aamigration regulation 1994 cth r 5 19 3 4 statement decision reasonsapplication reviewthis application review decision made delegate minister immigration 17 may 2018 reject applicant application approval nomination position australia r 5 19 themigration regulation 1994 regulation department delegate decision lodged tribunal applicant applied approval 3 may 2016 requirement approval nomination position australia found r 5 19 regulation contains two alternative stream temporary residence transition nomination r 5 19 3 stream direct entry nomination r 5 19 4 stream application made accordance r 5 19 2 meet requirement either stream application must approved requirement met application must refused r 5 19 5 case applicant applied approval nomination seeking satisfy criterion direct entry nomination stream delegate refused application basis applicant nomination satisfy r 5 19 4 regulation applicant represented director mr anand gopinath appeared tribunal 21 january 2020 give evidence present argument tribunal also received oral evidence mr baljit kaur associated visa applicant applicant represented relation review registered migration agent following reason tribunal decided affirm decision review refuse nomination consideration claim evidencethe issue case whether applicant meet requirement approval nomination direct entry nomination stream set r 5 19 4 extracted attachment decision nomination approved requirement must met term employment visa holder r 5 19 4 regulation 5 19 4 requires nominee employed nominated position least 2 year full time term condition employment expressly exclude possibility extension 3 may 2016 applicant nominator annilax enterprise pty ltd namaste cuisine lodged nomination application direct entry stream position cook anzsco 141111 visa applicant nominee m baljit kaur visa applicant located cooma 1 restaurant base rate pay per annum 59 021 decision delegate referred applicant lodged amongst thing financial statement period 1 july 2016 30 june 2017 organisation chart provided 8 november 2017 delegate also noted application one 17 direct entry nomination application lodged applicant department result delegate decided consider nomination application individually holistically order determine need financial capacity nominator business support additional 17 sponsored position applied letter 11 april 2018 2 department put concern inconsistency wage declared financial statement period 1 july 2016 30 june 2017 number staff employed business based information organisation chart provided 8 november 2017 department letter 11 april 2018 also noted following information 3 dividing annual wage expenditure 658 359 13 full time employee give average annual earnings 50 643 per staff member note figure lower majority proposed annual wage business intends pay nominated position also note take account wage additional 34 part time staff member business purported employ time addition based organisational chart submitted 17 pending nomination 12 nominee already working business part time therefore business also proposing support person full time capacity along additional five fulltime position appear business currently financial capacity support current declared workforce put nominator ability support additional guaranteed annual earning 54 500 period two year required byregulation 5 19 4 thereforeregulation 5 19 4 may met response 9 may 2018 applicant provided submission letter business company director mr gopinath dated 7 may 2018 4 organisation chart business head office campbelltown jindabyne young camden cooma goulburn branch 5 lease 6 financial statement period 1st july 2016 30th june 2017interim financial statement period 1st july 2017 31st december 2017copy restaurant menu 7 delegate considered applicant mr gopinath submission dated 7 may 2018 submission claimedinter aliathe restaurant chain need employ person role cook claimed seven former employee left organisation one staff member passed away claim corroborated seven resignation letter 8 however seven former employee listed submission two included organisation chart provided 8 november 2017 considered part delegate aforementioned wage calculation see following kamalpreet singh full time chef camden branch annual salary 54 500 per payg payment summary provided cheand sukhchain juara full time cook campbelltown branch annual salary 40 875 per payg payment summary provided delegate continued inconsistency detailed organisation chart response department letter gave little weight director statement salary paid employee left organisation used pay new nominee replacing taken face value resignation seven employee freed capacity employ another five full time staff neither appear support future wage cost 17 22 pending nomination 34 part time staff shown detailed organisation chart provided delegate placed little weight seven resignation letter 9 five payg payment summary former employee provided applicant also referred potential employee leave business time may take department process current nomination application hand would free wage pay nominated employee visa granted however noting concern capacity business pay additional wage delegate satisfied word effect little speculation 10 placed little weight submission tribunal note number person employed applicant business contracted since application made delegate satisfied statement ready invest aud 200 000 00 next 24 month milestone based injection aud 500 000 00 11 supported material evidence therefore little weight placed claim delegate also found projected cash flow information see namaste cuisine strategic business plan september 2016 table provided referring future predicted sale reflect business current financial position ability support current stated workforce hearing applicant explained monies invested dependent sale part premise young nsw sale yet taken place delegate continued submission applicant referred contingency plan support additional wage nominee included reference equity home personal bank account sale young premise however material evidence supporting claim regarding personal equity provided therefore delegate placed little weight said applicant say following reasonable equity 1 040 000 00 approximately house restaurant young owned company besides reasonable personal cash holding 34 184 00 bank company financially strong 12 delegate satisfied applicant submission overcome concern expressed department letter 11 april 2018 delegate also considered letter business external accountant taxwave dated 16 april 2018 13 5 october 2017 14 statedinter aliathat company making steady growth financial result period better previous one 5 october 2017 letter accountant also also said audit review performed accordingly assurance expressed 15 delegate acknowledged business recorded better profit interim financial statement lodged compared financial statement period 1 july 2016 30 june 2017 21 159 45 income tax compared 0 profit income tax 2016 2017 though figure considered sufficient cover additional wage cost therefore little weight placed accountant letter dated 16 april 2018 issuing 359 2 letter dated 17 september 2019 amongst thing tribunal department applicant lodged income statement period ended 30 june 2015 profit ordinary activity income tax 26 784 47 16 income statement period ended 30 june 2016 profit ordinary activity income tax 20 066 32 17 income statement period ended 30 june 2017 profit ordinary activity income tax 0 18 income statement period ended 30 june 2018 profit ordinary activity income tax 40 179 78 19 detailed balance sheet year ended 30 june 2019 profit ordinary activity income tax 219 734 99 20 company tax return 2016 total income 20 066 21 company tax return 2019 taxable net income 219 735 22 employment agreement dated 1 april 2016 23 ba statement 24 market salary report 25 stated director recognises mr kaur perfect nominee position asset business hence director foresees employing cook namaste indian cuisine ensures stability profitability business competes restaurant industry tribunal hearing applicant explained applicant operates five restaurant six campbelltown restaurant closed may 2018 9 hope commence two new restaurant early 2020 sydney city wagga wagga applicant total business currently total 6 full time 15 part time staff 21 total reduction appears related tointer aliathe closure campbelltown restaurant cooma restaurant visa applicant employed full time cook currently hasinter aliaone full time cook two part time cook however applicant believed needed three full time cook per restaurant run properly asked applicant also explained full time cook employed since 2016 one part time cook employed three month tribunal understands second part time cook employed longer period applicant also said one part time cook worked jindabyne lunch period cooma 40kms distance dinner period applicant said subject nsw fire could dangerous journey however tribunal also note restaurant appeared manage effectively period operation asked substantial reduction salary 822 276 year ended 30 june 2018 360 391 66 year ended 30 june 2019 applicant said ceased campbelltown restaurant may 2018 9 accounted drop salary however asked applicant said campbelltown restaurant previously employed four full time staff three part time staff two staff worked applicant five restaurant tribunal also note business commenced 2011 fairly steady modest profit growth year ended 30 june 2018 profit income tax 40 179 78 however profit income tax year ended 30 june 2019 219 734 99 asked sudden increase applicant said due saving wage closed campbelltown restaurant also said intention expand business order attract sale could pay new sponsored visa applicant also said business continued progress nsw bushfires slowed since around december 2019 asked applicant said visa applicant never work business applicant accepted sometimes difficult employ staff regional area appeared staff presently employed cooma restaurant worked time shortest one part time cook employed three month accordingly appear applicant cooma restaurant substantial difficulty staff movement next hearing applicant conceded claim prepared invest aud 200 000 00 next 24 month milestone based injection aud 500 000 00 taken place said hoping sell property young nsw yet occurred tribunal also noted personal equity applicant claimed able invest business though investment personal equity taken place said notwithstanding projected cash flow information see namaste cuisine strategic business plan september 2016 recent financial information lodged applicant belief expanding business could improve sale tribunal satisfied confidence expressed reflected current financial state business largely modest growth prior closure campbelltown restaurant given visa applicant work business nominated salary 59 021 per annum would appear likely put financial strain business without apparent credible need nominated position hearing tribunal also noted delegate referred 17 nomination department lodged nominator tribunal put information applicant pursuant 359aa information tribunal aware 22 nomination tribunal lodged present nominator ten nomination withdrawn merit review application lodged therefore given nomination application cost 500 given merit review application cost 1 800 given withdrawn nomination application assistance cost migration agent appeared costly unusual exercise particularly profit business appeared mostly modest tribunal said word effect subject comment may considerinter aliawhether exercise applicant credible applicant said lost lot money hoped expanding business would improve business profitability also said visa applicant wish commence work nomination approved said tribunal satisfied applicant need could afford cook cooma restaurant ofinter aliathe apparent stability effectiveness existing staff modest profit business tribunal also note time delegate 11 april 2018 letter claimed 13 full time employee 34 part time employee claimed 6 full time employee 15 part time employee notwithstanding claim two new restaurant developed hoped would commence early 2020 one existing restaurant already closed tribunal belief one indicator business probable decline recent claimed tax profit said arisen due closing campbelltown business consequent profit would likely adversely impacted purportedly imminent commencement two new restaurant applicant claiming developing tribunal also satisfied applicant likely soon position invest money claimed based modest recent profit satisfied investment applicant private equity would provide temporary relief business spite applicant confidence given recent modest growth business since commencement 2011 fact approximately 10 12 nomination tribunal related visa applicant tribunal satisfied business may collapse financial strain placed successful 26 may given finding reason herein tribunal satisfied applicant capacity employ visa applicant nominated position least 2 year full time accordingly requirement r 5 19 4 met reason tribunal satisfied applicant meet requirement r 5 19 4 applicant sought satisfy criterion temporary residence transition nomination stream met requirement r 5 19 3 accordingly nomination position cannot approved therefore tribunal must affirm decision review decisionthe tribunal affirms decision review refuse nomination mr normanmemberattachment extract themigration regulation 19945 19 approval nominated position employer nomination 2 application must made accordance approved form 1395 aa include written certification nominator stating whether nominator engaged conduct relation nomination constitutes contravention subsection 245ar 1 act b accompanied fee mentioned inregulation 5 37 direct entry nomination 4 minister must writing approve nomination application approval made accordance subregulation 2 ii identifies need nominator employ paid employee work position nominator direct control b nominator actively lawfully operating business australia ii directly operates business c nominator whose business activity include activity relating hiring labour unrelated business position within business activity nominator hire unrelated business following apply employee employed full time basis position least 2 year ii term condition employee employment include express exclusion possibility extending period employment e term condition employment applicable position le favourable term condition provided ii would provided australian citizen australian permanent resident performing equivalent work workplace location f either adverse information known immigration nominator person associated nominator ii reasonable disregard adverse information known immigration nominator person associated nominator g nominator satisfactory record compliance law commonwealth state territory applicant operates business employ employee business relating workplace relation h either following apply task performed position performed australia correspond task occupation specified minister instrument writing sub subparagraph aaa occupation applicable person identified subparagraph ii accordance specification occupation b either nominator business operated least 12 month nominator meet requirement training australian citizen australian permanent resident specified minister instrument writing sub sub subparagraph ii nominator business operated le 12 month nominator auditable plan meeting requirement specified instrument mentioned sub sub subparagraph ii following apply position located regional australia b genuine need nominator employ paid employee work position nominator direct control c position cannot filled australian citizen australian permanent resident living local area place task performed position correspond task occupation specified minister instrument writing sub subparagraph da occupation applicable person identified subparagraph ii accordance specification occupation e business operated nominator located place f body specified minister instrument writing sub subparagraph ii located state territory location position advised minister matter mentioned paragraph e sub subparagraphs b c 1 pdf p 12 pdf refers merged department file tribunal casemate database 2 pdf p 3 pdf p 132 4 pdf p 139 5 pdf p 91 tribunal folio 85 6 tribunal folio 59 7 tribunal folio 22 8 pdf p 145 9 pdf p 145 10 see pdf p 11 pdf p 12 pdf p 13 pdf p 14 pdf p 86 15 pdf p 86 16 pdf p 42 17 pdf p 54 18 pdf p 88 19 tribunal folio 71 20 tribunal folio 80 21 pdf p 77 22 tribunal folio 76 23 pdf p 98 24 pdf p 29 p 50 p 50 tribunal folio 69 25 pdf p 105 26 tribunal note nomination application approved

WR & EL Jones Pty Ltd [2016] FWCA 3203 (20 May 2016).txt

wr el jones pty ltd 2016 fwca 3203 20 may 2016 2016 fwca 3203fair work commissiondecisionfair work act 2009s 185 enterprise agreementwr el jones pty ltd ag2016 2858 wr el jones pty ltd etu cepu electrical division esso onshore site maintenance service enterprise agreement 2015electrical contracting industrycommissioner leemelbourne 20 may 2016application approval wr el jones pty ltd etu cepu electrical division esso onshore site maintenance service enterprise agreement 2015 1 application made approval enterprise agreement known thewr el jones pty ltd etu cepu electrical division esso onshore site maintenance service enterprise agreement 2015 agreement application made pursuant tos 185of thefair work act 2009 act made wr el jones pty ltd agreement single enterprise agreement 2 satisfied requirement ofss 186 187and188as relevant application approval met 3 communication electrical electronic energy information postal plumbing allied service australia 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 27 may 2016 nominal expiry date agreement 14 october 2017 commissionerprinted authority commonwealth government printer price code c ae419034pr580583 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

Harlen & Hellyar (No. 4) [2020] FamCA 600 (24 July 2020).txt

harlen hellyar 4 2020 famca 600 24 july 2020 last updated 9 september 2020family court australiaharlen hellyar 4 2020 famca 600family law legal professional privilege alleged waiver whether privilege applies first place implied waiver conduct allegedly inconsistent maintaining privilege whether inconsistent behaviour demonstrated fact case evidence act 1995 cth s 118 122evidence act 2008 vic 122 2 family law act 1975 cth 90ucattorney general northern territory v maurice 1986 hca 80 1986 161 clr 475baker v campbell 1983 hca 39 1983 153 clr 52banks bank 2015 famcafc 36bilal v omar 2015 famcafc 30 2015 53 fam lr 121commissioner taxation v rio tinto ltd 2006 fcafc 86 2006 151 fcr 341deiter deiter 2011 famcafc 82dse holding pty ltd v intertan inc 2003 fca 384 2003 127 fcr 499eaby speelman 2015 famcafc 104hall v hall 2016 hca 23 2016 257 clr 490harlen hellyar 2 2020 famca 413harlen hellyar 2020 famca 21harris v caladine 1991 hca 9 1991 172 clr 84mann v carnell 1999 hca 66 1999 201 clr 1marvel v marvel 2010 famcafc 101 2010 43 fam lr 348redmond redmond 2014 famcafc 155rocacelli v seles 2019 famca 105salah salah 2016 famcafc 100 2016 56 fam lr 299ss ah 2010 famcafc 13telstra corporation ltd v bt australasia pty ltd 1998 fca 901 1998 85 fcr 152vic hotel pty ltd v dc payment australasia pty ltd 2015 vsca 101 2015 321 alr 191viterra malt pty ltd v cargill australia ltd 2018 vsca 118 2018 58 vr 333paul finn fiduciary obligation law book company 1977 ahmed terzic implied waiver legal professional privilege search consistency 2018 45 australian bar review 287applicant m harlenrespondent mr hellyarfile number mlc13634of2017date delivered 24 july 2020place delivered melbourneplace heard melbournejudgment honourable justice wilsonhearing date 7 20 july 2020representationcounsel applicant mr j st john qcsolicitor applicant peter szabo family lawcounsel respondent mr p shannessy scsolicitor respondent mann lawyersorders 1 dismiss respondent application 7 july 2020 relation waiver legal professional privilege note form order subject entry order court record notedthat publication judgment court pseudonymharlen hellyarhas approved chief justice pursuant tos 121 9 g thefamily law act 1975 cth note copy court reason judgment may subject review remedy minor typographical grammatical error r 17 02a b thefamily law rule 2004 cth record variation order pursuant r 17 02family law rule 2004 cth family court australia melbournefile number mlc 13634 2017ms harlenapplicantandmr hellyarrespondentreasons judgmentintroductionan issue arisen proceeding whether legal professional privilege waived ease reference convenient although incorrect call applicant wife respondent husband relevantly distilled issue may shortly stated 12 february 2018 peter szabo retained wife solicitor period 12 15 february 2018 wife communicated mr szabo professional capacity wife legal practitioner husband asserts 15 february 2018 open court appearance john j reason wife representative publically stating certain thing privilege otherwise attached matter stated representative waived behalf wife mr st john qc appeared wife conceded privilege waived respect statement made open court 15 february 2020 however mr st john resisted suggestion privilege waived period 12 february lead appearance 15 february 2018 synopsisfor reason follow judgment husband application dismissed relevant factual settingat core litigation involves application set aside agreement said made pursuance ofs 90ucof thefamily law acton 10 february 2014 husband seek rely enforce conversely wife say agreement invalid variety ground litigation foot several year may year assumed control case fixed trial wife application 7 july 2020 made order vacating trial date 6 july 2020 refixed trial 1 march 2020 largely state preparation time would otherwise devoted trial 6 10 july 2020 used day productively deal extant interlocutory application disclosure dispute evidentiary objection dispute alleged waiver legal professional privilege better understand context current waiver dispute necessary narrate certain matter emerged affidavit made wife one hand client legal advisor mr szabo hand dispute arose wife mr szabo confidential professional relationship existed involving trust confidence concomitant fiduciary obligation 1 mr szabo first instructed case wife 12 february 2018 paragraph 2 mr szabo affidavit sworn 11 december 2018 deposed circumstance first instruction wife relevantly mr szabo divided event 12 february 2018 two part first narrated following term first received instruction m harlen 12 february 2018 first return date initiating application filed former de facto partner mr hellyar hellyar pending 15 february 2018 hellyar seeking order enforcing asection 90ucagreement purportedly entered 10 february 2014 financial agreement specifically m harlen vacate property street suburb e street retain street exclusion thereafter statement told little term detail wife retainer amounted little date received instruction fact application returnable 15 february 2018 order husband sought second part event 12 february 2018 narrated mr szabo paragraph 3 11 december 2018 affidavit paragraph mr szabo swore later day 12 february 2018 spoke mr n firm z lawyer mr szabo say whether conversation face face telephone latter telephoned event term paragraph 3 affidavit follows later day spoke hellyar solicitor mr n z lawyer advising m harlen would consent hellyar exclusive occupancy street longer living property happy order made effect made clear m harlen would seeking order due course financial agreement held void set aside later date fixed determination question pointed even agreement set aside client entitlement spousal maintenance unable support without pension time z lawyer firm solicitor representing husband exchange recorded paragraph 3 mr szabo affidavit second third sentence recorded wife position date consistent current position litigation seemed first sentence could presented factual setting husband may relied support waiver contention following day say 13 february 2018 mr szabo deposed sending letter mr n way confirmation conversation two 12 february 2020 relevant event occurred 14 february 2020 15 february 2018 case came john j mr szabo appeared wife honour mr ashley richardson counsel appeared husband john j mr szabo swore event day paragraph 5 11 december 2018 affidavit mr szabo said callover counsel appearing husband discussed division chattel accordance term letter sent mr n 13 february 2018 said discussed u order client prepared consent day finalized anything occupation street division chattel consistently made clear client intended challenge validity financial agreement would commencing application effect near future mr szabo swore notation b minute day reflected client intention challenge validity financial agreement minute became consent order john j made 15 february 2014 mr szabo deposed wife emotional state day hearing john j gave detail paragraph 6 affidavit following term m harlen appeared upset anxious day hearing explaining assistance interpreter negotiation taking place minute order finally agreed upon intended placed consent court made clear proposed consent order would resolve occupation street division chattel instruction settle anything two issue husband relied various passage wife affidavit support husband waiver argument wife made affidavit 6 august 2018 filed 7 august 2018 husband contended relied evidence paragraph 23 26 paragraph 78 affidavit matter set immediately represent distillation evidence paragraph 14 october 2012 husband took wife office z lawyer husband introduced wife female interpreter left waiting 30 minute solicitor wife know mr f took wife interpreter room within premise z lawyer wife said interpreter relayed mr f told namely husband would pay wife nothing wife husband separated within five year six husband would pay wife specific sum separated longer sum paid depended length relationship wife know husband overall financial position secretive felt overwhelmed said difficulty understanding said felt nervous anxious said felt inconveniencing mr f andshe asked sign document interpreter mr f paragraph 24 wife said telephoned husband collect time took copy agreement mr f given saying husband retain document wife would lose paragraph 25 26 affidavit wife said communication mr f receive account copy agreement signed 14 october 2012 since date despite several request mr f failed provide copy husband also relied information paragraph 78 affidavit made 6 august 2018 paragraph spoke agreement made 10 february 2014 information paragraph 22 26 affidavit spoke agreement made october 2012 far 2014 agreement concerned wife addressed paragraph 78 affidavit paragraph wife said 2014 agreement seen 2014 agreement since signed 10 february 2014 mr f witness execution husband mr n witnessed wife execution agreement agreement content interpreted 10 february 2014 andno interpreter present husband also relied various paragraph wife affidavit made 17 june 2019 support waiver privilege contention specifically relied paragraph 34 39 affidavit certain aspect paragraph corresponded paragraph wife 6august 2018 affidavit example paragraph 22 6 august 2018 affidavit identical paragraph 35 wife 17 june 2019 affidavit paragraph 23 6 august 2018 affidavit closely corresponded identical paragraph 36 wife 17 june 2019 affidavit paragraph 24 6 august 2018 affidavit bore similarity paragraph 37 wife 17 june 2019 affidavit paragraph 25 6 august 2018 affidavit identical paragraph 38 wife 17 june 2019 affidavit andparagraph 26 6 august 2018 affidavit corresponded closely paragraph 39 wife 17 june 2019 affidavit husband relied wife evidence husband described alleged lack advice 10 february 2014 paragraph 51 53 98 wife 17 june 2019 affidavit lengthy paragraph necessary record content paragraph 51 following term 10 february 2014 respondent took office solicitor mr n asked going replied needed sign document asked sort document whether replied something similar looked unusually stressed said need worry document formality asked would interpreter respondent replied need one arrived mr n office neither mr f interpreter present mr j respondent sat one side table mr n side document handed seen looked similar 2012 agreement could read understand asked respondent signing told sign document worry mr n speak nervous felt pressured sign felt real choice sign document signed page asked sign signature document signed respondent signed document said people would come later sign document know referring given copy document signed entire time respondent continued look stressed time understand paragraph 53 purported paraphrase certain allegation case follows proceeding respondent alleged 10 february 2014 agreement executed mr f present represented deny respondent also alleged assisted interpreter m q believe m q interpreter attended office respondent solicitor 14 october 2012 signed 2012 agreement paragraph 98 related event 10 february 2014 follows affidavit support application sworn 20 december 2017 respondent annexed annexure r 1 alleged true copy 2014 agreement seen document since respondent signed day mr f witness signing agreement 10 february 2014 witness signing document respondent mr n interpreter clause last page copy 2014 agreement annexed respondent affidavit neither agreement content interpreted 10 february 2014 interpreter present paragraph 130 132 133 wife trial affidavit made 1 june 2020 wife deposed following 12 february 2018 met mr peter szabo solicitor instructed act behalf thereafter interpreter money pay mr szabo immediately prepared assist hearing hellyar application 15 february 2018 gave mr szabo copy court document sent r lawyer attended family court 15 february 2018 mr szabo interpreter stressed anxious especially seen hellyar since travelled police station 6 september 2017 understood mr szabo told court day dealing leaving street immediate division major household item instructed mr szabo resolving immediate issue never intended final property settlement hellyar day wanted challenge 2014 agreement disputed validity instructed mr szabo accordingly mr szabo told court would deal immediate issue 15 february 2018 deal validity agreement another day order made consent 15 february 2018 explained mr szabo reflected already mentioned behalf wife mr st john qc maintained legal professional privilege waived relation event court john j 15 february 2018 otherwise mr st john written submission dated 5 july 2020 mr st john provided overview litigation relevantly paraphrased follows wife husband commenced romantic relationship march 2011 commencing reside together domestic relationship july 2012 although husband contends party commence cohabitation october 2012 final separation occurred 6 september 2017 two wife child previous relationship lived wife husband september 2013 september 2017 mr szabo represented wife since 12 february 2018 mr hellyar commenced litigation 27 december 2017 returnable 15 february 2018 12 february 2018 m harlen filed court documentation 12 february 2018 mr szabo mr n z lawyer spoke telephone conversation mr szabo stated m harlen consented mr hellyar application vacate property street suburb e challenged validity agreement made 10 february 2014 sought maintenance correspondence followed 13 february 15 february 2018 application came john j stood matter enable party negotiate consent order agreed put honour approval john j made order consent andduring submission john j mr szabo informed honour wife proposed challenge validity 10 february 2014 agreement proceeding mr hellyar argues final consent order made john j operate manner estop wife pursuing application make proceeding exception application spousal maintenance unders 90ui 2 thefamily law act consideration turn waiver privilegeagainst factual backdrop husband asserted wife cannot maintain legal professional privilege attache communication mr szabo three relevant day 12 13 february 2018 day 15 february 2018 say wife waived privilege adopting approach inconsistent maintenance examining material relation application subsequent 7 july took view necessary desirable counsel submission certain threshold matter apparent least 7 july 20 july conducted mention following matter emerged according mr shannessy sc order mr szabo come away conference wife 12 february 2018 instruction challenge agreement mr szabo must received instruction wife basis application made order agreement set aside according mr st john qc note record exists instruction mr szabo may received 12 february 2018 mr st john said 12 february 2018 thai interpreter accompanied wife conference mr szabo mr st john said person spoke thai accompanied wife conference mr szabo imperfectly translated andhe also said 12 february 2018 wife provided mr szabo copy application returnable 15 february 2018 discussed likely occur 15 february 2018 mr shannessy sc directed attention paragraph 133 particular wife trial affidavit mr shannessy said mr szabo must instruction issue order tell john j validity 2014 agreement issue addressing whether contention made necessary say little legal concept waiver privilege common cause application lead authority subject waiver legal professional privilege decision high court inmann v carnell 2 plurality gleeson cj gaudron gummow callinan jj identified reason existence legal professional privilege common law following term legal professional privilege exists protect confidentiality communication lawyer client client entitled benefit confidentiality may relinquish entitlement citingattorney general northern territory v maurice 3 plurality held inconsistent conduct person entitled benefit privilege client may cause privilege waived plurality said following inconsistency conduct client maintenance confidentiality effect waiver privilege example include disclosure client client version communication lawyer entitles lawyer give account communication institution proceeding professional negligence lawyer lawyer evidence advice given client received case alleged waiver said implied particular conduct held inconsistent maintenance confidentiality privilege intended protect waiver frequently described imputed operation law concept high court held follows inmann v carnell waiver may express implied dispute implied waiver usually arise need decide whether particular conduct inconsistent maintenance confidentiality privilege intended protect affirmative answer given question sometimes said waiver imputed operation law whether client wife subjectively intended abandon privilege largely beside point relevant enquiry whether particular act conduct inconsistent maintenance privilege critical issue expressed plurality inmann v carnellin following term however intentional act inconsistent maintenance confidentiality communication brings waiver inconsistency court necessary informed consideration fairness perceive conduct client maintenance confidentiality overriding principle fairness operating large separate reason mchugh j emphasised need examine circumstance case waiver asserted honour held follows disclosure client confidential legal advice received client may purpose explaining justifying client action purpose waive privilege disclosure inconsistent confidentiality privilege serf protect depending upon circumstance case consideration fairness may relevant determination whether inconsistency section 122of theevidence actbears upon factual examination necessary determine whether implied waiver effected inbilal v omar 4 full court addressed proposition holding privilege holder act inconsistently maintenance privilege putting content otherwise privileged communication issue inbilal v omar court applied observation full court federal court incommissioner taxation v rio tinto ltd 5 written submission waiver issue mr shannessy sc contended correctly view operation ofs 122of theevidence actcan determined ahead trial say interlocutory phase proceeding support submission emerges decision court appeal supreme court victoria inviterra malt pty ltd v cargill australia ltd 6 case court appeal determined interlocutory appeal 11 may 2018 advance trial fixed commence 28 may 2018 question court whether including pleading reference communication said protected legal professional privilege party relying pleading impliedly waived privilege otherwise protected subject communication court said referring high court decision inmann v carnell court appeal held follows party took u number case court dealt question implied waiver client legal privilege common law legal professional privilege order propound test suitable application present case provide illustration circumstance comparison matter two note caution must sounded respect first notwithstanding high court made clear common law ands 122 2 closely related question asked statutory test posed bys 122 2 namely whether respondent particular cargill acted way inconsistent objecting production privileged document sought secondly case make clear settled list kind action nature give rise implied waiver case must depend upon fact circumstance drawing generalisation case may dangerous court appeal emphasised inconsistency test held follows review case make plain single test applied in 122 2 theevidence act assistance understanding applying test may derived frommann v carnelland authority applying either common law statutory provision however case depend upon fact circumstance drawing general principle beyond statement inconsistency test may risk departing term statute case associate justice held pleading detail document said contained content legally privileged communication party waived privilege appeal macaulay j dismissed appeal hearing application leave appeal decision macaulay j court appeal granted leave appeal dismissed appeal interlocutory appeal determined intelstra corporation ltd v bt australasia pty ltd 7 mr shannessy sc relied authority proposition wife waived legal professional privilege giving evidence state mind relevant passage judgment plurality branson lehane jj follows however party relies cause action element party state mind including quality party assent transaction party taken waived privilege respect legal advice party time relevant event material formation state mind another portion plurality reason honour explained reasoning behind concept opening issue state mind operates waiver following term case party pleads undertook certain action reliance particular representation made another open element cause action issue state mind time undertook action court required determine factor factor influenced mind party induce act way party put issue proceeding matter cannot fairly assessed without examination relevant legal advice received party circumstance party putting contest issue reliance taken consented use relevant privileged material put another way waived reliance privilege material would otherwise attract one commentator 8 suggested certainty predictability absent inconsistency test authority considered implied waiver includedse holding pty ltd v intertan inc 9 andvic hotel pty ltd v dc payment australasia pty ltd 10 examined inviterra malt pty ltd v cargill australia ltd considerationconsistent authority identified next became necessary examine passage various affidavit husband relied asserting implied waiver legal professional privilege effected wife affidavit made 7 august 2018it necessary go paragraph set outverbatimabove paragraph 22does involve issue privilege mentioning attended office mr j wife waive privilege privilege attached aspect paragraph paragraph 23is made 15 sentence husband asserted sentence represented waiver legal professional privilege otherwise attached paragraph agree first sentence statement wife waited waiting room privilege attached sentence second sentence concerning arrival mr f third sentence wife previously met spoken mr f wife statement fourth sentence mr f apologised lateness attract legal professional privilege issue waiver arose paragraph 23contained seventh tenth fourteenth sentence expression wife state mind feeling nervous anxious feeling overwhelmed difficulty absorbing understanding said feeling great pressure namely sign document statement state mind applying observation intelstra corporation ltd v bt australasia pty ltd husband argued giving evidence state mind wife taken waived privilege respect legal advice wife may time relevant event material formation state mind elsewhere eleventh sentence paragraph 23 wife deposed substance advice given mr f best could understand advice set paragraph 19 c reason paragraph 24of wife 6august 2018 affidavit contain evidence confidential communication wife legal representative seemed paragraph 24 amount waiver similar comment apply relation paragraphs26and27 paragraph 78of affidavit contain information communication inconsistent maintenance legal professional privilege wife affidavit made 17 june 2019as earlier affidavit necessary go paragraph husband relied contention waiver occurred paragraph 34contains material capable sustaining claim existence legal professional privilege follows privilege exists waiver enlivened paragraph 34 similarly contained information could amount legal professional privilege therefore privilege could waived paragraph 35was category paragraph 36contained similar statement paragraph 23 wife affidavit made 7 august 2018 paragraph wife deposed state mind namely sense feeling nervous anxious feeling overwhelmed wife sense feeling great pressure sign document comment relation paragraph 23 7 august 2018 apply equal force context paragraph 36 seemed paragraph 36 wife 17june 2019 affidavit said following context signing agreement felt great pressure real choice sign paragraph 37of wife 17june 2019 affidavit factual narrative nature containing nothing way legally privileged communication seemed waiver therefore beside point paragraph 38 39fell similar category paragraph 51of affidavit addressed event 10 february 2014 specifically execution agreement issue case wife stated mr n present speak wife said felt nervous presumed sign felt choice sign document paragraph 53contained wife denial 10 february 2014 mr f represented taken combination husband seemed assert mr f wife solicitor mr f presented documentation wife execution wife felt pressured revealing affidavit state mind consequence taken waived whatever privilege existed set circumstance mr shannessy sc invited consider reasoning mcevoy j honour judgment handed 28 january 2020 11 mr shannessy contended mcevoy j persuaded despite conflicting evidence question wife retainer z lawyer confidential professional relationship legal practitioner client subsisted wife mr n 10 february 2014 mcevoy j expressed difficulty identifying information said confidential encountered difficulty certainly correct state evidence event 10 february 2014 conflict mcevoy j seems proceeded basis z lawyer mr f fact legal representative wife much reflected honour reason paragraph 2 3 4 6 16 well paragraph z lawyer previously acted wife imparted confidential information time difficult imagine injunction restraining firm acting husband could succeeded address 7 july 2020 mr shannessy sc argued wife position asserting existence privilege one hand yet adopting inconsistent approach hand lay also wife evidence paragraph 132 133 affidavit made 1 june 2020 paragraph wife deposed following attended family court 15 february 2018 mr szabo interpreter stressed anxious especially seen hellyar since travelled police station 6 september 2017 understood mr szabo told court day dealing leaving street immediate division major household item instructed mr szabo resolving immediate issue never intended final property settlement hellyar day wanted challenge 2014 agreement disputed validity instructed mr szabo accordingly mr szabo told court would deal immediate issue 15 february 2018 deal validity agreement another day order made consent 15 february 2018 explained mr szabo reflected act constituting waiver said wife disclosing instruction proposing challenge 2014 agreement mr szabo informed john j effect 15 february 2018 order mr szabo responsibly make submission honour term mr szabo needed instruction effect doubt whatsoever mr szabo acted entirely properly communicating instruction wife proposed proceed applying order setting aside 2014 agreement however one thing say mr szabo instruction tell honour wife wanted apply set aside 2014 agreement another thing say mr szabo must taken instruction ground reason making submission proper tell court wife intended apply set aside agreement unless mr szabo instruction absence instruction would exposed mr szabo least professional censure mr szabo well known practitioner jurisdiction enjoys favourable reputation view unlikely announced john j wife intended apply set aside 2014 agreement unless mr szabo received instruction effect client altogether different thing argue revealing instruction wife taken impliedly waived privilege otherwise applied instruction led mr szabo announcing honour client intended pursue case extent document exist recording instruction given mr szabo 12 13 february 2018 privilege attaching document said likewise waived consider privilege waived communication 12 13 february 2018 mr szabo announcement court 15 february 2018 view mr szabo telling honour client intended challenge 2014 agreement basis intended challenge factual milieu wife ground thereby disclosed still le privileged communication revealed divulged expressly implication view situation different judge asking counsel defence say counsel client relied answer saying example fraud equitable estoppel undue influence amount waiver communication counsel client pursuant plea advanced case mr szabo state client intended challenge agreement even identified head challenge without would opened basis trawling private protected communication solicitor client mr shannessy sc submitted mr szabo waived privilege mr szabo stating instruction settle anything two issue namely occupation street division asset according mr shannessy significance statement mr szabo follows mr shannessy sc clearly asserting substance instruction maintaining privilege regard entirely inconsistent put court instruction instruction maintain privilege word must accepted say instruction say privileged say inconsistency thatmann carnelldeals mr shannessy argued statement mr szabo inconsistent content paragraph 132 133 wife affidavit submitted follows mr shannessy sc say absolutely clear given version mr szabo communication leadup day order say crystal clear given u reference sorry reference told u entirely inconsistent maintaining privilege course second point honour paragraph 25 mr st john submission mr szabo mistaken overlooked say go mr szabo state mind must go instruction day assumption husband waiver argument succeeded mr shannessy submitted result wife required produce collection document draft order prepared mr shannessy follows 1 within 14 day applicant provide respondent copy written instruction note instruction solicitor peter szabo applicant solicitor end hearing 15 feb 2018 andb copy applicant solicitor note applicant instruction end hearing 15 feb 2018 c copy written communication applicant applicant solicitor end 15 feb 2018 hearing behalf wife mr st john qc said squarely privilege waived relation hearing 15 february 2018 authenticated order made 15 february 2018 appearing court portal expressed final order yet expressed made consent discussion mr st john qc 20 july 2020 mr st john explained apparent anomaly basis property order made judge upon judge satisfied equitable make order mr st john qc submitted consent largely irrelevant judge needed independently consent form view order equitable doubt mr st john qc mind observation high court inharris v caladine 12 making submission order court made 15 february 2018 counsel appearing wife recorded m richardson whereas affidavit evidence revealed mr richardson appeared wife may utile record term order together notation b 13 upon application made court upon hearing m richardson counsel applicant mr szabo respondentit ordered 21 february 2018 respondent shall vacate property street suburb e victoria deliver key suburb e office applicant solicitor b applicant thereafter retain street suburb e exclusion respondent accordance paragraph 7 20 financial agreement dated 10 02 2014 agreement applicant shall retain exclusion respondent possession luxury motor vehicle applicant shall retain exclusion respondent asset property standing sole name applicant save respondent shall retain item set list annexed hereto avoidance doubt applicant shall also retain item set list b annexed hereto respondent shall maintain item list b good condition separation 4 extant application otherwise dismissed notation respondent agrees make application vary intervention order granted melbourne magistrate court 7 september 2017 give effect order set b order made without respondent admitting validity agreement husband contended entry consent order wife estopped making claim advance case particularly 2014 agreement regard agreement paragraph 1 consent order surrendered possession street suburb e returning precise document sought husband assumption force mr shannessy sc contention waiver mr st john qc dissected category document sought reverse order beginning document sought paragraph 1 c mr st john qc said document mentioned paragraph 1 c fell two category namely first written communication wife mr szabo end 15 february 2018 second written communication took place court 15 february 2018 far first category concerned mr st john said client unable reliably read english document exist far second category concerned mr st john said following application 7 july 2020 mr st john qc understand situation friend saying want note took place court hearing evidence client recall saw mr szabo 15th distressed state friend said mr szabo given evidence understood mr szabo understood dealt insofar relates 15 february concede note probably called extent note know note simply certain amount paid fine viewing take great issue even suggestion somehow friend would entitled look prior hearing oral written communication submission clearly arise waiver specific waiver event 15 february court acknowledge document relates evidence instruction given advice given day would discoverable acknowledge sought clarification concession mr st john said implied waiver occurred said following honour one second important point say specific waiver got right want make sure incorrectly record saying amr st john qc perhaps put way honour acknowledge mr szabo say implied waiver giving evidence instruction given advice given day implied waiver acknowledged honour okay lest point needed form summation endeavoured distil seemed wife relatively straightforward position follows honour see let see understand position concede implied waiver advice given well 15 february probably limited court prior date date contest waiver note taken 15 february discovered basis follow implied waiver right count mr st john qc yes honour okay reply mr shannessy sc submitted relevant timeline contention waiver examined period mr szabo retainer 12 february 2018 application john j 15 february 2018 afterwards examined temporal contextto properly examine unusual fact application necessary put phase conflicting factual position temporal context said contested interlocutory application authority binding upon requires approach task making factual finding great circumspection 14 narrative event relevant application began 2012 event surrounding execution agreement december 2014 pertinent however focus debate respect appearance john j 15 february 2018 began retainer mr szabo wife 12 february 2018 common ground 12 february 2018 mr szabo appointed wife legal representative date detail confidential communication exchanged client solicitor 12 february 2018 none easy divine source affidavit evidence point set paragraph 2 3 mr szabo affidavit sworn 11 december 2018 evidence emerged indicated subject two paragraph contained information character legal professional privilege paragraph record wife request legal advice mr szabo provision legal advice let alone paragraph disclose detail advice given paragraph seem raise matter ordinarily encountered case relevant maintenance waiver legal privilege given mr st john concession concerning status information given court 15 february 2018 waiver occurred evidence paragraph 5 mr szabo 11december 2018 affidavit represented wife case waiver mr szabo sentence went closest stated discussed u order client prepared consent day finalized anything occupation street division chattel 15 seemed sentence quoted coupled sentence followed paragraph 5 mr szabo affidavit revealed two matter balance probability discussed mr szabo mr richardson namely mr szabo instruction settle issue wife occupation street division chattel andmr szabo said wife intended challenge validity financial agreement order made 15 february 2018 john j disposed wife occupation street suburb e pursuant paragraph 1 b order mr hellyar retained possession street accordance paragraph 7 20 financial agreement dated 10 02 2014 agreement despite mr hellyar retention street property expressed pursuance two paragraph financial agreement made 10 february 2014 second notation page two order john j made without respondent 16 admitting validity agreement husband wife party propounding validity 10 february 2014 financial agreement peculiar notation reserving position admission concerning validity agreement frontispiece litigation involves contention variety ground 2014 agreement null void one intriguing aspect waiver application nowhere husband identified information said captured legal professional privilege every item information passing solicitor client legally privileged even information imparted received currency relationship solicitor client ambit privilege explained deane j inbaker v campbell 17 following term one recognizes principle underlying legal professional privilege person entitled seek obtain legal advice without apprehension prejudiced subsequent disclosure confidential communication privilege confined communication made course anticipation litigation extends generally confidential communication professional nature person lawyer made purpose obtaining giving legal advice common sense point conclusion principle seen restricted compulsory disclosure course proceeding inmann v carnellthe plurality held ambit common law doctrine legal professional privilege exceeds provision ofs 118ands 122of theevidence act view information capable attracting description confidential communication professional nature person lawyer made purpose obtaining giving legal advice revealed paragraph husband relied constituting alleged waiver accept inconsistent act emerged way mr szabo conducted client application john j 15 february 2018 constitute waiver dismiss husband application certify preceding ninety 90 paragraph true copy reason judgment honourable justice wilson delivered 24 july 2020 associate date 24 july 2020 1 paul finn fiduciary obligation law book company 1977 2 1999 hca 66 1999 201 clr 1 3 1986 hca 80 1986 161 clr 475 4 2015 famcafc 30 2015 53 fam lr 121 5 2006 fcafc 86 2006 151 fcr 341 6 2018 vsca 118 2018 58 vr 333 7 1998 fca 901 1998 85 fcr 152 8 ahmed terzic implied waiver legal professional privilege search consistency 2018 45 australian bar review 287 9 2003 fca 384 2003 127 fcr 499 10 2015 vsca 101 2015 321 alr 191 11 harlen hellyar 2020 famca 21 12 1991 hca 9 1991 172 clr 84 13 previous decision whichharlen hellyar 2 2020 famca 413is one expressed disapproval practice using notation convey substantive proposition submission apt illustration problem 14 marvel v marvel 2010 famcafc 101 2010 43 fam lr 348 s ah 2010 famcafc 13 deiter deiter 2011 famcafc 82 eaby speelman 2015 famcafc 104 bank bank 2015 famcafc 36 salah salah 2016 famcafc 100 2016 56 fam lr 299 redmond redmond 2014 famcafc 155 rocacelli v seles 2019 famca 105 hall v hall 2016 hca 23 2016 257 clr 490 15 reference u reference mr szabo one hand mr ashley richardson counsel 16 respondent application m harlen applicant proceeding 17 1983 hca 39 1983 153 clr 52

SZLVU & Anor v Minister for Immigration & Anor [2008] FMCA 708 (30 May 2008).txt

szlvu anor v minister immigration anor 2008 fmca 708 30 may 2008 last updated 5 june 2008federal magistrate court australiaszlvu anor v minister immigration anor 2008 fmca 708migration review decision refugee review tribunal whether refugee review tribunal decision affected jurisdictional error whether refugee review tribunal failed take account integer central applicant claim whether refugee review tribunal complied withs 424aof themigration act 1958 cth whether refugee review tribunal regard applicant claim judiciary act 1903 cth 39bmigration act 1958 cth s 5 1 36 2 65 1 91r 91s 424a 424a 1 424a 3 474 pt 8 div 2szbel v minister immigration multicultural indigenous affair 2006 hca 63re minister immigration multicultural affair ex parte durairajasingham 2000 168 alr 407minister immigration ethnic affair v wu liang or 1996 hca 6 1996 185 clr 259abebe v commonwealth australia 1999 hca 14 1999 162 alr 1minister aboriginal affair another v peko wallsend ltd others 1986 hca 40 1985 162 clr 24vjaf v minister immigration multicultural indigenous affair 2005 fcafc 178minister immigration indigenous affair v namw 2004 fcafc 264qaac 2004 v refugee review tribunal 2005 fcafc 92naoa v minister immigration multicultural indigenous affair 2004 fcafc 241sziwk v minister immigration citizenship 2007 fca 168first applicant szlvusecond applicant szlvvfirst respondent minister immigration citizenshipsecond respondent refugee review tribunalfile number syg 7 2008judgment emmett fmhearing date 22 may 2008date last submission 22 may 2008delivered sydneydelivered 30 may 2008representationapplicant appearing behalfcounsel respondent m v mcwilliamsolicitors respondent mr g johnson dla phillips fox lawyersfederal magistratescourt australia atsydneysyg 7 2008szlvufirst applicantszlvvsecond applicantandminister immigration citizenshipfirst respondentrefugee review tribunalsecond respondentreasons judgmentintroductionthis application pursuant tos 39bof thejudiciary act 1903 cth andpart 8division 2 themigration act 1958 cth act judicial review decision refugee review tribunal tribunal dated 19 november 2007 handed 11 december 2007 applicant claim india catholic faith first named applicant applicant husband second named applicant claim second named applicant entirely dependent claim applicant applicant arrived australia 9 april 2007 departed legally cochin international airport passport issued name visitor visa issued 5 march 2007 10 april 2007 applicant lodged application protection class xa visa department immigration multicultural affair department act 5 june 2007 delegate first respondent delegate refused applicant application protection visaon 2 july 2007 applicant lodged application review delegate decision tribunal 19 november 2007 tribunal affirmed decision delegate grant protection visa 3 january 2008 applicant filed application court seeking judicial review tribunal decision legislative frameworksection 65 1 act authorises decision maker grant visa satisfied prescribed criterion met however decision maker satisfied visa application refused section 36 2 act relevantly provides criterion protection visa applicant non citizen australia minister satisfied australia protection obligation refugee convention amended refugee protocol section 5 1 act defines refugee convention refugee protocol meaning 1951 convention relating status refugee 1967 protocol relating status refugee convention australia protection obligation refugee australian territory article 1a 2 convention relevantly defines refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return section 91rand 91sof act refer persecution membership particular social group considering article 1a 2 convention applicant claim protection visa applicationin protection visa application applicant stated member democratic india congress party previously member kerala student union ksu applicant stated feared persecution communist party india marxist cpi person mr b applicant claimed trying kill family last 30 year applicant stated mr b became member legislative assembly applicant home state kerala applicant claimed attacked riding bicycle 1990 cpi goondas police filed criminal charge applicant claimed wife attacked june 1996 whilst driving scooter police charged cpi goondas applicant stated case still pending applicant stated home attacked 16 october 2006 cpi goondasand local leader cpi charged later absconded applicant stated mr b studied university together supported differing political party applicant stated mr b studied law mr b active member student federation india applicant active member kerala student union applicant also referred fight 1983 1986 opposing student political party resulting serious injury death member applicant stated could return kerala past attack cpi goondasand failure police successfully prosecute applicant stated could live state speak language hindi applicant stated sure congress party would protect supporter democratic indira congress leader sacked indian national congress president mr sonia ghandi delegate decisionon 5 june 2007 delegate first respondent refused applicant application protection visa basis applicant person australia protection obligation convention delegate satisfied act past persecution attack applicant family convention related reason delegate expressed doubt applicant claim attack home 2006 given lived one address since 2000 delegate satisfied applicant well founded fear persecution convention related reason return kerala tribunal decisionon 2 july 2007 applicant lodged application review delegate decision refugee review tribunal 26 july 2007 tribunal wrote applicant informing tribunal considered material unable make favourable decision material alone letter invited applicant attend hearing 3 september 2007 give oral evidence present argument applicant attended hearing gave evidence second named applicant attend applicant told tribunal unwell following hearing 3 september 2007 tribunal wrote applicant thes 424aletter identifying various inconsistency applicant statement support protection visa application oral evidence given hearing inviting comment tribunal thes 424aletter also referred information another applicant made claim similar applicant thes 424aletter noted applicant lived applicant previous address thes 424aletter also informed applicant handwriting used application applicant present applicant similar application used similar phrase thes 424aletter noted hearing applicant stated aware person claim persecution hand mr b applicant responded thes 424aletter letter dated 12 november 2007 applicant letter stated relation inconsistency evidence sometimes lost memory following surgery throat unable furnish exact detail time hearing given protection visa application applicant also recanted evidence tribunal know applicant said gave evidence tribunal feared may otherwise cause trouble friend decision record tribunal noted detail claim made applicant protection visa application tribunal noted independent country information regard including information mr b tribunal also regard country information relating treatment returnees tribunal noted evidence given applicant hearing noted exchange applicant evidence tribunal noted put applicant various inconsistency applicant oral evidence made protection visa application tribunal also noted put applicant concern credibility applicant claim noted applicant response tribunal also noted detail thes 424aletter applicant response letter tribunal found applicant credible witness comprehensively rejected claim past persecution tribunal accept applicant explanation inconsistency oral evidence claim made protection visa application basis memory loss caused surgery tribunal noted applicant asked hearing provide medical record police statement tribunal support claim however unable tribunal noted accepted applicant explanation response denial knowledge similar protection visa application friend stated relied adversely fact particular tribunal found applicant suffered harm past arising relationship mr b political opinion political opinion imputed tribunal rejected applicant claim attacked cpi goondas 1996 2006 tribunal accept cpi goondas direction mr b would continue threaten applicant family would applicant returned kerala continued participate political activity tribunal satisfied real chance reasonably foreseeable future serious harm suffered applicant reason attack mr b applicant political opinion imputed political opinion return kerala become involved political activity tribunal found whilst applicant claim fear persecution reason christian religion independent country information indicated kerala largest christian population india constitution india provides freedom religion national government generally respect right accordingly tribunal rejected applicant well founded fear persecution reasonably foreseeable future reason religion political opinion imputed religion tribunal found fear persecution held applicant well founded factual objective basis tribunal found light finding necessary consider issue relocation done tribunal affirmed decision review proceeding courtthe applicant unrepresented court although assistance malayalam interpreter applicant participated panel advice scheme applicant confirmed appearing second named applicant applicant confirmed applicant relied ground contained amended application filed 3 april 2008 ground amended application somewhat difficult understand appear combine submission ground particular counsel first respondent summarised ground written submission court interpreter interpret applicant summary ground prepared counsel first respondent applicant confirmed counsel first respondent submission accurately summarised ground upon applicant relied ground summarised counsel first respondent follows 2 complaint raised amended application paraphrased first respondent tribunal made finding extent nature persecution suffered applicant ground 1a b tribunal found applicant well founded fear persecution reason political opinion imputed political opinion give reason finding ground 1b c tribunal failed comply withs 424aof themigration act 1958 act failing give applicant information history kerala politics prior hearing ground 2 tribunal failed ask whether indian authority provided standard protection comparable international standard ground 3 e tribunal failed take account integer central applicant claim applicant spent long time questioned without break felt stressed intimidated ground 4 f tribunal failed carry review function tribunal consider applicant immense intimidating pressure cpi tough goon ground 5 g tribunal consider applicant claim political activity resulted threat cpi member tribunal also failed acknowledge family member also suffered political conflict ground 6 h tribunal failed find applicant satisfied definition refugee ground 7 tribunal failed analyse properly future harm applicant may face ass carry real chance test ground 8 ground 1a ground 3counsel first respondent agreed tribunal make finding extent nature persecution suffered applicant ask whether indian authority provided standard protection comparable international standard however obligation tribunal consider matter light tribunal adverse credibility finding comprehensive rejection applicant claim past persecution heart tribunal rejection applicant claim evidence inconsistency applicant oral evidence written claim tribunal finding satisfied applicant explanation inconsistency tribunal put concern applicant hearing thes 424aletter written applicant hearing applicant credibility issue delegate applicant aware issue review szbel v minister immigration multicultural indigenous affair 2006 hca 63 event tribunal concern applicant credibility put squarely hearing thes 424aletter discussed fair reading tribunal decision make clear tribunal adverse credibility finding open evidence material provided reason accordingly ground 1a 3 made ground 1b tribunal found applicant well founded fear persecution reason political opinion imputed political opinion give reason finding fair reading tribunal decision support contention ground 1b tribunal give reason finding applicant well founded fear persecution reason political opinion imputed political opinion tribunal found factual objective basis applicant claim fear persecution reaching conclusion fair reading tribunal decision make clear tribunal understood claim made applicant considered evidence provided applicant support claim noted detail independent country information regard noted exchange hearing applicant claim noted matter concern applicant evidence put applicant noted applicant response tribunal took cautious step giving applicant thes 424aletter tribunal identified inconsistency applicant oral evidence claim made protection visa application tribunal considered applicant response thes 424aletter tribunal finding conclusion open evidence material provided reason including adverse credibility finding referred paragraph 43 reason matter credit matter par excellence tribunal minister immigration multicultural affair ex parte durairajasingham 2000 168 alr 407at 67 per mchugh j otherwise ground 1b disagreement finding conclusion made tribunal complaint invite merit review court cannot undertake minister immigration ethnic affair v wu liang or 1996 hca 6 1996 185 clr 259at 272 abebe v commonwealth australia 1999 hca 14 1999 162 alr 1 minister aboriginal affair another v peko wallsend ltd others 1986 hca 40 1985 162 clr 24at 41per mason j accordingly ground 1b made ground 2 tribunal failed comply withs 424aof themigration act 1958 act failing give applicant information history kerala politics prior hearing information history kerala politics prior hearing general country information specifically applicant circumstance information excluded obligation ofs 424a 1 act reason ofs 424a 3 act vjaf v minister immigration multicultural indigenous affair 2005 fcafc 178at 11 16 accordingly ground 2 rejected ground 4 tribunal failed take account integer central applicant claim applicant spent long time questioned without break felt stressed intimidated extent ground 4 contends tribunal failed take account integer central applicant claim contention supported fair reading tribunal decision referred reason fair reading tribunal decision make clear tribunal identified detail claim made applicant hearing noted exchange applicant evidence put applicant matter concern evidence noted applicant response stated reason tribunal finding conclusion open evidence material provided reason including adverse credibility finding applicant identified particular integer contend tribunal failed consider none apparent fair reading tribunal decision extent ground 4 alleges applicant spent long time questioned without break feeling stressed intimidated applicant provided evidence support allegation disclosed exhibit 1r hearing lasted 3 hour 20 minute break hearing fair reading tribunal decision record disclose complaint made applicant hearing feeling stress intimidation court entitled regard tribunal record accurate absence evidence naoa v minister immigration multicultural indigenous affair 2004 fcafc 241at 21 sziwk v minister immigration citizenship 2007 fca 168at 15 accordingly ground 4 made ground 5 tribunal failed carry review function tribunal consider applicant immense intimidating pressure cpi tough goon ground 5 appears contend tribunal failed consider applicant immense intimidating pressure cpi tough goon however fair reading tribunal decision support contention tribunal noted particularity applicant claim attack cpi goondas threat made mr b would kill family attacked last 30 year however tribunal accept applicant claim regard stated reason tribunal finding open evidence material provided reason otherwise ground 5 disagreement tribunal adverse finding complaint invite merit review court cannot undertake accordingly ground 5 made ground 6 tribunal consider applicant claim political activity resulted threat cpi member tribunal also failed acknowledge family member also suffered political conflict fair reading tribunal decision make clear tribunal consider whether applicant threatened cpi member result political activity rejected applicant evidence regard fair reading tribunal decision also make clear tribunal regard applicant claim family member also suffered political conflict tribunal rejected evidence course tribunal specifically identified rejected applicant claim injury wife 1990 1996 based inconsistency applicant oral evidence written claim failure satisfactorily explain inconsistency tribunal specifically rejected applicant claim threat applicant family cpi membersas stated reason tribunal finding conclusion open evidence material gave reason including adverse credibility finding otherwise ground 6 disagreement finding conclusion tribunal thereby inviting merit review court cannot undertake accordingly ground 6 made ground 7 tribunal failed find applicant satisfied definition refugee applicant satisfy tribunal meet criterion refugee stated reason tribunal finding open evidence material provided reason tribunal applied correct law finding reaching conclusion satisfied applicant refugee tribunal satisfied applicant met relevant criterion refugee bound affirm decision review accordance withs 65 1 act otherwise ground 7 disagreement finding conclusion tribunal thereby inviting merit review court cannot undertake accordingly ground 7 made ground 8 tribunal failed analyse properly future harm applicant may face ass carry real chance test tribunal stated found material indicate factor give rise real chance prospective persecution reason applicant political involvement applicant return india fair reading tribunal decision make clear tribunal understand applicant claim however satisfied credible indeed stated reason tribunal comprehensively rejected applicant evidence past harm reason political opinion imputed political opinion religion finding open tribunal evidence material provided reason otherwise ground 8 disagreement ultimate finding conclusion made tribunal complaint invite merit review court cannot undertake accordingly ground 8 made conclusiona fair reading tribunal decision make clear tribunal understood claim made applicant explored claim applicant regard evidence provided applicant written oral put applicant concern evidence noted response including giving applicant thes 424aletter concern regarding inconsistency applicant evidence inviting applicant comment tribunal made finding open evidence material provided reason fair reading tribunal decision make clear tribunal reached conclusion based finding applied correct law reaching conclusion circumstance tribunal complied obligation statutory regime making decision including conduct review tribunal decision affected jurisdictional error therefore privative clause decision accordingly pursuant tos 474of act court jurisdiction interfere proceeding court dismissed cost certify preceding eighty 80 paragraph true copy reason judgment emmett fmassociate kwongdate 30 may 2008

DS -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 182 (2 September 2008).txt

d v state western australia 2008 wasca 182 2 september 2008 last updated 2 september 2008jurisdiction supreme court western australiatitle court court appeal wa citation d v state western australia 2008 wasca 182coram wheeler jamiller jamurray ajaheard 13 august 2008delivered 2 september 2008file cacr 151 2007between dsappellantandthe state western australiarespondenton appeal jurisdiction district court western australiacoram sullivan dcjfile bun ind 77 2007catchwords criminal law procedure evidence sexual offence recent complaint whether spontaneous whether reply question leading suggestive character whether admissiblelegislation nilresult appeal dismissedcategory brepresentation counsel appellant m r parksrespondent mr j scholzsolicitors appellant edward john myersrespondent director public prosecution wa case referred judgment 1wheeler ja agree miller ja 2miller ja appellant tried indictment district court bunbury four count indecent dealing alleged occurred year 2002 2007 involving three stepdaughter 3 verdict jury appellant acquitted second third count convicted fourth jury unable agree relation first count 4 count 4 indictment following term 4 26 february 2007 bunbury appellant indecently dealt complainant child knew de facto child touching vagina finger appeal5 appellant granted leave appeal conviction single ground following term learned judge erred law permitting evidence complainant relating recent complaint admitted particular complaint made complainant mother spontaneous elicited way leading suggestive question mother time complainant awaking sleep b evidence ought allowed evidence recent complaint tending bolster complainant credibility evidence6 evidence complainant pre recorded 15 march 2007 recorded videotape videotape played jury 5 november 2007 7 complainant said born january 1996 11 year time gave evidence 15 march 2007 age date alleged offence 8 pre recorded evidence complainant said testifying dad something bad home asked detail said um basically sexually assault um put hand pant started rubbing um tried pull pant kept pulling drunk bed time late night get sleep um um sat bed little read book fell asleep little remember coming remember sitting bed rubbing 9 way elaboration complainant said um woke felt something funny saw bed said love much drunk know many beer night mum told um mum come asked went back bedroom come room asked touched anywhere answer um asked nodded went room said get 10 various passage evidence complainant described incident one point said q said wearing pyjama short underwear rubbing top short underneath underneath q okay underwear underneath q okay part part rubbing talked bit baby yeah q part wee part rubbing oh um middle q okay long rubbing 5 minute q say anything said love much could touch leaf q okay could touch leaf think meant um willy q yep know meant um said said q remember exact word used um said could touch kitty leave q kitty yeah said q okay heard use word um yes q mean say kitty really sure um know q oh okay um say anything shake head 11 complainant gave evidence told mother came room said um mum asked said garage mum said come asked touched nodded went back said get get um asking key ute 12 complainant cross examined told mother said okay say well mum came room think evidence came soon yes exactly say said touch anywhere yes say say anything yes asked nodded right actually say touch wee yes right happened said touch anywhere answer yes asked touched anywhere answer yes said touch wee yes nodded yes 13 also examination issue relevant passage follows many question want ask point mum came room night said think said asked happened first reply right first time yes happened asked reply say reply anything point make sign point give indication second time right happened ask yes say said yes right asked nodded point remember yes nodded nod asked use word nodded right want go back one time asked first time say anything first time asked second time reply reply right third time nodded 14 complainant mother k testified night question gone bed two son come bed one lying side said go back sleep fully stated dozing could hear stumbling around kitchen back house must dozed minute saw woke see appellant coming complainant room opposite sleeping could see doorway thought light thought coming middle night drunk stumbling around hit doorframe sort collapsed end bed bed bed sleeping pushed foot said complainant room grunted got took boy back room said wait minute went saw complainant complainant cry said dad said yes said said touch answer cried said touch wee used call burst tear nodded yes 15 k cross examined whether could see door complainant bedroom asked whether definite appellant come bedroom said asked say occurred went complainant bedroom stated went complainant room say said say complainant asked room right nodded yes said yes said said touch cry yes answer say answer initially said touch wee said yes justburst tear burst tear yes trial judge ruling16 admissibility complaint evidence raised trial judge prior commencement trial counsel appellant objected evidence basis k asked complainant leading question complainant responded answer result suggestive nature question 17 trial judge took time consider matter said n view circumstance evidence proposed led mother complainant page 10 paper objectionable put context question mother asked daughter mother walked bedroom found daughter wearing nightie underwear spontaneous question reason think consider reply elicited kept jury 18 novoir direwas conducted ruling given case trial judge first saw heard complainant determining admissibility evidence cfr v freeman 1980 vicrp 1 1980 vr 1 7 starke mcinerney murphy jj nevertheless question admissibility evidence much issue decision trial judge r v osborne 1905 1 kb 551 556 ridley j ground appeal19 challenge trial judge ruling based upon assertion complaint made complainant mother spontaneous elicited way leading suggestive question mother time complainant awaking sleep 20 said evidence complaint made time complainant awaking sleep evidence make clear asleep awoken appellant awake mother came said appellant rubbing 5 minute 21 question whether said complaint spontaneous elicited way leading suggestive question 22 inroberts v queen 2001 wasca 191and inazarian v state western australia 2007 wasca 249i reviewed relevant authority issue pointed inrobertsat 25 inosborneridley j 556 suggested question suggestive leading character would effect would render inadmissible evidence complaint ridley j said however every case decision character question question put well circumstance relationship questioner complainant must left discretion presiding judge well known passage fromosborneat 556 follows appears u mere fact statement made answer question case sufficient make inadmissible complaint question suggestive leading character indeed effect render inadmissible case decision character question put well circumstance relationship questioner complaint must left discretion presiding judge circumstance indicate questioning probably would voluntary complaint answer inadmissible question merely anticipates statement complainant make rendered inadmissible fact questioner happens speak first applies complaint elicited question leading inducing intimidating character made first opportunity offence reasonably offer 23 infreeman starke mcinerney murphy jj 4 5 reviewed number case concluded attempt formulate exhaustive rule bound fail honour pointed decision inosbornedid cover field enumerating circumstance complaint properly admissible prove consistency honour also pointed thatosbornewas open criticism indeed escaped criticism would refer also discussion inrobertsofr v gallagher 1986 41 sasr 43at 28 24 inazarian 123 made reference number relevant question posed infreeman said inr v freeman 5 court considered fact case relevant question wereinter alia 1 proximate complaint first made event 2 happened interval event complained making complaint 3 likelihood complaint spontaneous unvarnished narrative prosecutrix either statement put prosecutrix mind mouth question character suggested prosecutrix answer fact gave questioner desired answer given rather another circumstance indicated answer given product suggestive question suggestible mind 4 whether complaint could induced consequence relationship existing prosecutrix person complaint made cfr v adam ross 1965 qd r 255 spontaneous contrived induced 25 infreeman held circumstance case open trial judge formed view question put complainant acquaintance merely accelerated making complaint complainant said product mind acceptance suggestion implanted mind court also considered question asked complainant dissolve barrier hitherto prevented telling story 7 26 circumstance present case apparent complaint made complainant mother proximate time event complained b made first possible opportunity incident complained occurred c spontaneous consequence complainant first asked whether touched answer asked whether touched wee 27 complainant complaint fact nod word used nevertheless complainant nod mother question constituted complaint 28 consider complainant mother put anything complainant mind consider nod complainant response mother question product suggestive question suggestible mind freemanat 5 consider either complainant induced nod response mother question consequence relationship mother freemanat 5 rather consider evidence point complainant response spontaneous way contrived induced 29 fact every case different circumstance complaint made case ofrobertsandazarianmake quite clear often question asked complainant merely accelerate making complaint would otherwise made many case question dissolve barrier might otherwise exist questioner complainant 30 general rule relation matter provided complaint proximate event complained b question statement put mouth complainant c question suggestible mind reacting suggestive question possibility complaint induced reason relationship complainant questioner evidence complaint generally admissible 31 present case event happened quickly complainant mother observed husband leave complainant room got bed took boy back room went see complainant observed complainant cry asked whether father room received affirmative answer asked question touch got answer said touch wee received nod response view evidence met test admissibility properly admitted trial judge admitted evidence constituted buttress credit complainant kilby v queen 1973 hca 30 1973 129 clr 460 472 barwick cj direction given jury trial judge complaint made direction 32 circumstance would dismiss appeal 33murray aja advantage reading draft judgment published miller ja agree reason agree appeal dismissed

Puruse Pty Ltd & Anor v Council of the City of Sydney (No.3) [2010] NSWLEC 35 (19 March 2010).txt

puruse pty ltd anor v council city sydney 3 2010 nswlec 35 19 march 2010 last updated 22 march 2010new south wale land environment courtcitation puruse pty ltd anor v council city sydney 3 2010 nswlec 35parties applicantpuruse pty ltd joao pty ltd trading cooper hotel newtownrespondentcouncil city sydneyfile number 11147 2008catchwords appeal 56a modification application application development control plan mandatory relevant considerationlegislation cited environmental planning assessment act 1979interpretation act 1987land environment court act 1979city sydney late night trading premise development control plan 2007cases cited azzopardi v tasman ueb industry 1985 4 nswlr 139bankstown city council v mohamed el dana 2009 nswlec 68bonim stanmore v marrickville council 2007 nswlec 286 2007 156 lgera 12botany bay city council v premier custom service pty ltd 2009 nswca 226bp australia ltd v campbelltown city council 1994 83 lgera 274castle construction pty ltd v north sydney council 2009 nswca 169coles v woollahra municipal council 1986 59 lgra 133marrickville metro shopping centre pty ltd v marrickville council 2009 nswlec 109mine subsidence board v vervoon 2008 nswca 280 2008 165 lgera 346puruse pty limited v council city sydney 2009 nswlec 163puruse pty ltd joao pty ltd trading cooper hotel newtown v sydney city council 2009 nswlec 1095zhang v canterbury city council 2001 nswca 167 2001 51 nswlr 589coram sheahan jdates hearing 17 september 2009judgment date 19 march 2010legal representativesapplicantmr galasso scsolicitorsjpr legal pty ltdrespondentmr j lazarus barristersolicitorsmaddocks lawyersjudgment land andenvironment courtof new south walessheahan j19 march 2010no 11147 2008 puruse pty ltd anor v council city sydney 3 judgmentintroductionhis honour appeal unders 56aof theland environment court act1979

Symbion Pty Ltd [2017] FWCA 6033 (16 November 2017).txt

symbion pty ltd 2017 fwca 6033 16 november 2017 last updated 14 december 2017 2017 fwca 6033fair work commissiondecisionfair work act 2009s 185 enterprise agreementsymbion pty ltd ag2017 3503 symbion pty ltd western australia enterprise agreement 2017pharmaceutical industrycommissioner gregorymelbourne 16 november 2017application approval symbion pty ltd western australia enterprise agreement 2017 1 application made approval enterprise agreement known thesymbion pty ltd western australia enterprise agreement 2017 agreement application made pursuant tos 185of thefair work act 2009 act made symbion pty ltd agreement single enterprise agreement 2 applicant provided written undertaking copy undertaking attached annexure satisfied undertaking cause financial detriment employee covered agreement undertaking result substantial change agreement 3 subject undertaking referred satisfied requirement ofss 186 187 188and190as relevant application approval met 4 pursuant tos 202 4 act model flexibility term prescribed thefair work regulation 2009is taken term agreement 5 shop distributive allied employee association sda national union worker nuw bargaining representative agreement given notice 183 act want agreement cover accordance withs 201 2 note agreement cover organisation 6 agreement approved accordance 54 act operate 23 november 2017 nominal expiry date agreement 30 september 2020 commissionerprinted authority commonwealth government printer price code g ae426121pr597797 annexure

N97_15437 [1998] RRTA 3083 (16 June 1998).txt

n97 15437 1998 rrta 3083 16 june 1998 refugee review tribunaldecision reason decisionrrt reference n97 15437country reference bangladeshtribunal member kim rosserdate decision 16 june 1998place sydneydecision tribunal affirms decision grant protection visa catchword well founded fear freedom party credibilitybackgroundthe applicant applicant wife citizen bangladesh arrived australia 1996 28 august 1997 lodged application protection visa department immigration multicultural affair themigration act 1958 act 26 march 1997 delegate minister immigration multicultural affair refused grant protection visa 28 april 1997 applicant applicant wife sought review decision issue arises case validity application review tribunal jurisdiction review delegate decision legislationa criterion protection visa time decision minister review tribunal satisfied applicant person australia protection obligation 1951 convention relating status refugee amended 1967 protocol relating status refugee s 5 1 and36 2 act australia party refugee convention refugee protocol protection obligation people refugee defined refugee conventionarticle 1a 2 convention defines refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return definition contains five key element first applicant must outside country second applicant must fear persecution every threat harm interference person right convention reason constitutes persecuted mason cj referred persecution requiring serious punishment penalty significant detriment disadvantage chan yee kin v miea 1989 hca 62 1989 169 clr 379at 388 harm threat harm part course selective harassment person whether individually member group subjected systematic harassment amount persecution done convention reason appropriate case may include single act oppression serious violation human right measure disregard human dignity persecution implies element motivation part persecute infliction harm people persecuted something perceived attributed persecutor third reason persecution must found singling one convention reason race religion nationality membership particular social group political opinion phrase reason serf identify motivation infliction persecution fourth applicant fear persecution convention reason must well founded fear add objective requirement requirement applicant must fact hold fear person well founded fear persecution convention genuine fear founded upon real chance persecution convention stipulated reason person well founded fear persecution even though possibility persecution occurring well 50 per cent real chance one remote insubstantial far fetched possibility finally applicant must unable unwilling fear avail protection country object convention provide refuge lost de jure de facto protection government unwilling return country nationality follows whenever protection country nationality available ground based well founded fear refusing person concerned need international protection refugee whether applicant satisfies convention definition assessed upon fact exist decision made requires consideration matter relation reasonably foreseeable future principle established high court inchan yee kin v miea 1989 hca 62 1989 169 clr 379 applicant anor v miea anor 1997 142 alr 331 354 andmiea v guo anor 1997 144 alr 567 575 6 full federal court inram v miea anor 1995 fca 1333 1995 57 fcr 565at 568 claim evidencethe applicant claim set application protection visa written submission tribunal oral evidence given tribunal 10 february 1998 applicant wife claim relies applicant also gave evidence hearing 10 february 1998 applicantthe applicant state became involved student politics whilst high school supported awami league al maintained support party war liberation bangladesh pakistan applicant state deal problem looting arose famine bangladesh 1974 awami league government changed constitution imposed one party fascist rule applicant state hated creation famine condition imposition emergency power amendment constitution without support people consequence withdrew support awami league applicant state involvement politics 1992 although started working part time district office bangladesh freedom party 1988 claim joined party early 1990 saw ideal objective party addition duty office boy took part political activity special messenger central office result leader central office district office knew well applicant state bnp government resigned march 1996 awami league started taking vindictive attitude towards targeted awami league well election insulted threatened kill election generally expected awami league would win election applicant started thinking leaving country therefore obtained visa visit australia visa issued 1996 applicant claim awami league government started getting threat local awami league worker mid 1996 local member awami league man claiming special branch special police came applicant house started interrogating thousand question relating whereabouts freedom party leader party property arm ammunition kept party applicant state ignorant applicant state abused assaulted death threat made wife applicant state waited see could save finally leaving bangladesh 1996 applicant state called mother arrived australia found political enemy looking two warrant issued relation applicant belief prosecuted relation baseless charge return bangladesh beginning hearing applicant confirmed lived address provided application protection visa came australia mother still life address also stated continued operate business shop sold four month prior leaving bangladesh obtained visa 1995 australian visa issued applicant 1996 hearing applicant questioned association freedom party stated began associating freedom party member 1988 involved spending time socializing well learning ideology manifesto stated became strongly involved 1993 onwards applicant also asked duty freedom party worker stated circulation duty involved passing information sending receiving document seeing people described bottom level organisation worker leader stated used spend three four hour per week working freedom party office sometimes applicant work staff took care business period applicant asked question freedom party able identify founder freedom party however applicant incorrectly stated party founded 1988 fact founded 1987 also unaware faruk rahman returned libya 1985 stood presidential candidate 1986 stated freedom party aligned organisation could name newspaper started party applicant stated objective freedom party clean corruption country work betterment people country mention freedom party base political ideology islam put applicant someone professed strong involvement freedom party appear depth knowledge history policy stated thing know low profile political worker applicant provided document bengali english translation purport relate charge copy newspaper cutting containing photograph english translation caption membership application card confirming involvement freedom party letter freedom party translation letter applicant mother father law applicant asked charge claim outstanding document provided relation charge stated obtained wife brother stated found charge mid 1996 told colleague freedom party office applicant asked charge arrested left bangladesh originally responded police could find hiding pointed applicant beginning hearing stated living address left australia responded hiding wife still living address later stated police look left bangladesh awami league looking case started left bangladesh stated arrest warrant issued came australia pointed applicant earlier stated police looking stated police looking awami league member looking freedom party member applicant stated group five awami league member came house 1996 8 pm tried force divulge information freedom party leader told would killed pas information bashed neighbour intervened applicant stated slightly injured scuffle hit shoulder right side head require medical attention applicant stated incident awami league member come back frightened would belief dare come back neighbour scared however told would killed went outside area applicant advised newspaper cutting containing photograph submitted dima document examination unit prior hearing document examiner employed unit told tribunal opinion photograph contrived hearing applicant shown photograph asked whether could identify whether remembered involved demonstration whether remembered photograph taken applicant pointed forefront photo confirmed demonstration remembered photograph taken document examiner verbal opinion discussed applicant maintained photograph genuine thing made photograph look false could caused photographer error applicant wifethe applicant wife confirmed claim aware husband involvement freedom party know become involved party knew charge husband day left come australia applicant wife questioned incident allegedly occurred 1996 stated eight people come house physically assaulted husband sustained injury abdomen back applicant wife stated husband require medical treatment injury belief go back bangladesh husband attacked discussion applicant wife evidence applicantafter applicant wife gave evidence applicant questioned number inconsistency evidence concerning incident 1996 version incident relation inconsistency concerning number people came house applicant claimed wife know many people woman applicant asked whether stating woman le observant men responded claiming case however stating notice number woman relation need medical treatment applicant stated required little medical treatment said required medical treatment serious injury need go hospital relation injury sustained applicant stated right realised sustained injury back pointed report document examination uniton 19 february 1998 tribunal received written report document examination unit document examiner expressed opinion newspaper clipping appears cut paste composition photograph image clipping composite two separate photograph stated opinion photograph image genuine tampered effort include male person forefront male person referred document examiner person identified applicant hearing 26 february 1998 document examiner report forwarded applicant advisor asked make submission within seven day 4 march 1998 tribunal received request applicant advisor requesting seven day respond request granted submission received applicant advisor 18 march 1998 applicant advisor stated client insists article genuine provided remainder newspaper original article cut well another copy newspaper submitted quality newspaper far comparable australian newspaper applicant advisor submitted tribunal proposed make adverse finding client basis document examiner comment wished question document examiner rehearing newspaper provided tribunal applicant advisor forwarded document examination unit together copy newspaper although edition obtained post dhaka sent tribunal document examiner provided opinion tribunal 26 may 1998 stated opinion newspaper provided applicant genuine text image combined produce newspaper cut paste method stated paper stock newspaper provided tribunal applicant different paper stock newspaper sent tribunal dfat dhaka copy document examiner report provided applicant advisor 27 may 1998 invited inspect newspaper including newspaper sent tribunal post asked provide comment response document examiner report 5 june 1998 applicant advisor also invited attend tribunal inspect newspaper obtained post compare newspaper provided client submission received applicant advisor 15 june 1998 stated interest natural justice comparison need made newspaper submitted applicant date edition obtained party applicant stated nothing suggest newspaper edition printed stock given paper supplied ongoing basis one would expect stock different supply would different applicant advisor submitted physical quality newspaper question whether article published applicant advisor apparently take tribunal offer attend tribunal inspect newspaper obtained post independent evidencethe tribunal considered evidence present situation bangladesh regarding situation member supporter freedom party particular relevant information contained inbanks day muller 1995 political handbook world csa publication new york pp 71 78 europa publication 1994 far east australasia 1995 bangladesh 26th ed london department foreign affair trade dfat cable da24884 bangladesh begum zia government 12 august 1992 cx2740 dfat cable da 1684 bangladesh treatment relative coup leader 7 may 1997 cx22832 ex army men form new party bangladesh 1987a xinhua news agency 3 august nexis ten injured bangladesh political party conflict 1987b xinhua news agency 16 august nexis saeed h 1996 untitled associated press 26 june nexis court order arrest bangladesh 1975 coup leader 1996 agencefrance presse 30 august nexis bangla police arrest 14 moslem radical anti state conspiracy 1997 deutsche presse agentur 31 january nexis member party founded 1975 coup leader face treason charge 1997a agence france presse 8 february nexis fugitive suspected bangladesh 1975 coup plot found 1997b agence france presse 15 august nexis substance evidence freedom party formed 1987 faruq rahman abdur rashid admission involved 1975 coup resulted death prime minister sheikh mujibur raham father present awami league prime minister sheikh hasina wajeb ousted 1975 counter coup two gone exile libya although faruq rahman returned bangladesh 1985 unsuccessfully stood presidential candidate general ershad 1986 freedom party belongs national democratic alliance described conservative alliance ten islamic group plus component historic muslim league refused join jatiya dal 1958 bank et al time formation freedom party stressed islam main basis political ideology along creation happy healthy society based justice fair play party started bengali language newspaper callthe milleit awami league came power june 1996 involved death sheikh mujibur rahman protected anindemnity act legislation repealed late 1996 since government sought bring charge played role assassination including people bangladesh faruq rahman arrested august 1996 allegation tortured detention bangladeshi court ordered arrest 13 leader 1975 coup local lawyer filed claim stating coup leader hurt religious feeling burying sheikh mujibur rahman hurriedly without performing moslem religious ritual number leader arrested three charge masterminding new plot assassinate sheikh hasina various press report indicate pattern harassment government prominent figure freedom party since awami league came power dfat expressed view freedom party mainstream political party rather one number smaller party based personality rather policy freedom party candidate stood approximately 10 electorate june 1996 election none candidate successful dfat belief faruq rahman prison party credible political force party electoral insignificance mean attracts little attention government much concerned bangladesh nationalist party political party present credible threat independent evidence indicate low profile freedom party member supporter targeted authority evidence discussed applicant hearing stated true low level member targeted independent evidence also indicates high level document fraud bangladesh fraudulent document able obtained assistance police also common pay bribe official addition lawyer provide fee letter advising unsafe return bangladesh department foreign affair trade dfat cable da 19732 26 july 1988 cx2690 dfat cable da 824 24 december 1995 cx13160 finding reasonsin assessing applicant convention claim required determine whether fear well founded whether treatment fear amount persecution convention reason noted applicant wife claim relies husband applicant claim return bangladesh risk authority charge belief targeted awami league involvement freedom party determining whether applicant entitled protection australia tribunal must first make finding fact claim made may involve assessment credibility applicant assessing credibility tribunal must sensitive difficulty often faced asylum seeker give benefit doubt generally credible unable substantiate claim however decision maker required accept uncritically allegation made applicant necessary rebutting evidence available find particular factual assertion applicant made accept claim inconsistent independent evidence regarding situation applicant country nationality seerandhawa v milgea 1994 fca 1253 1994 52 fcr 437at 451 per beaumont j selvadurai v miea anor 1994 fca 1105 1994 34 ald 347at 348 perheerey j see alsoshu min pan v mima federal court 23 january 1997 unreported nicholson j 10 andchanper mchugh j 428 tribunal properly reject applicant case fact foundation apply test whether well founded fear persecution wannakuwattewa v miea anorunreported north j 24 june 1996 13 tribunal cannot believe applicant may unable make relevant finding fact jones v miea 1996 40 ald 201at 217 218 per nicholson j enable satisfied applicant person australia protection obligation accept applicant member bangladesh freedom party consider evidence relation membership bangladesh freedom party unsatisfactory number respect particular although applicant able name founder party unaware information concerning freedom party opinion would within knowledge person long term association party particularly member spent year learning organisation ideology manifesto applicant evidence concerning nature involvement freedom party inconsistent application protection visa applicant stated worked part time basis party office 1988 however hearing applicant described involvement party 1988 1993 socializing member well learning ideology manifesto said become strongly involved 1993 view applicant lack detailed knowledge freedom party well inconsistency evidence concerning involvement party indicate member freedom party note applicant provided document evidence membership party however given independent evidence fraudulent document easily obtained bangladesh accept document evidence applicant fact member freedom party accept outstanding charge bangladesh regard note independent evidence fraudulent document easily obtained bangladesh therefore accept document provided applicant relation alleged charge evidence charge addition view applicant gave inconsistent evidence relation effect charge asked charge police arrested left bangladesh applicant initially stated find hiding pointed already told tribunal evidence lived address left bangladesh applicant stated said wife lived later said police looking awami league inconsistency applicant evidence unable satisfied fact sought either police awami league addition accept independent evidence newspaper clipping provided applicant support claim contains photograph contrived well evidence newspaper clipping taken genuine view fact applicant stated evidence remembered participating demonstration photograph taken suggests part claim fabricated purpose obtaining refugee status considered applicant advisor request question document examiner however accept document examiner expertise view number factor indicating applicant claim lack credibility view inappropriate unnecessary another hearing matter purpose suggested applicant advisor also considered applicant advisor submission natural justice requires comparison made newspaper provided applicant another copy edition newspaper obtained another source whilst accept paper stock different edition newspaper may differ view central issue relation aspect applicant claim photograph state indicates involved freedom party demonstration charge clear evidence document examination unit accept photograph newspaper clipping provided applicant contrived made finding view natural justice require obtain copy edition newspaper provided applicant comparison purpose accept incident applicant claim occurred 1996 fact took place consider inconsistency evidence applicant applicant wife relation incident indicate incident fabricated applicant order advance claim refugee status accept applicant explanation inconsistency wife know many people came house woman stated required medical treatment need go hospital adequately account difference evidence applicant wife note applicant sold business obtained visa australia month leaving bangladesh prior awami league winning government alleged incident 1996 accept applicant member freedom party accept awami league targeted prior election consider fact applicant sold business obtained visa australia several month leaving bangladesh indication applicant intended leave bangladesh intention nothing government power addition although passport valid visa australia applicant remained bangladesh week following alleged incident 1996 time claim knew charge view indicates applicant fear safety time accept outstanding charge applicant bangladesh accept claim authority looking since arrived australia warrant arrest issued also considered independent evidence available concerning situation freedom party member bangladesh accept evidence indicates pattern harassment government prominent figure freedom party since awami league came power however independent evidence suggest low level party member targeted authority regard accept dfat advice faruq rahman prison party credible political force party electoral insignificance mean attracts little attention government much concerned bangladesh nationalist party summary considered applicant evidence applicant wife together independent evidence available satisfied real chance applicant would face treatment amounting persecution reason political opinion convention reason return bangladesh therefore satisfied well founded fear persecution conclusionhaving considered evidence whole satisfied applicant person australia protection obligation refugee convention amended refugee protocol therefore satisfy criterion set 36 2 act protection visa specific convention claim made behalf applicant wife basis satisfied refugee fate application therefore depends outcome applicant application found applicant satisfy criterion protection visa follows applicant wife cannot granted protection visa decisionthe tribunal affirms decision grant protection visa

Murdoch University v Liquor, Hospitality and Miscellaneous Union, Western Australian Branch [2005] WAIRComm 3109 (22 November 2005).txt

murdoch university v liquor hospitality miscellaneous union western australian branch 2005 waircomm 3109 22 november 2005 last updated 9 july 2007western australian industrial relation commissionpartiesmurdoch universityappellant liquor hospitality miscellaneous union western australian branchrespondentcoramfull benchthe honourable ritter acting president senior commissioner j f gregor commissioner j h smithdatetuesday 22 november 2005file sfba 13 2005citation 2005 wairc 03109decisionorder direction givenappearancesappellantms c pugsley mr j daseyrespondentmr swinbournorder directionsthis appeal come hearing full bench 22 november 2005 heard m c pugsley mr j dasey behalf appellant mr swinbourn behalf respondent full bench determined expedient make order direction hereinafter contained day 22 november 2005 ordered directed follows 1 hearing determination appeal herein adjourned sine die 2 appellant 4 00pm 25 november 2005 serve upon western australian state solicitor office copy notice appeal andb copy written submission appellant anda copy written submission respondent fba 13 2005 together witha supplementary notice unders 78bof thejudiciary act 1903 cth requesting state western australia advise full bench wish intervene fba 13 2005 full benchacting president

Legal Services Commissioner v Lyne [2015] QCAT 291 (30 July 2015).txt

legal service commissioner v lyne 2015 qcat 291 30 july 2015 last updated 14 august 2015citation legal service commissioner v lyne 2015 qcat 291parties legal service commissioner applicant vrichard alexander woodd lyne respondent application number ocr044 14matter type occupational regulation mattershearing date 2 july 2015heard brisbanedecision justice carmodyassisted m megan mahon legal panel memberprof susan dann lay panel memberdelivered 30 july 2015delivered brisbaneorders made tribunal order respondent publicly reprimanded respondent pay penalty 2 000 00 within 60 day respondent pay applicant cost incidental disciplinary proceeding within 30 day agreed failing agreement assessed standard basis catchword profession trade lawyer complaint discipline professional misconduct unsatisfactory professional conduct professional competence diligence respondent solicitor practising succession law respondent retained administer substantial estate respondent took five year finalise estate respondent failed maintain adequate record annotating cost charged estate whether respondent committed unsatisfactory professional conduct professional misconduct legal profession act2007

"Contents" [2018] ELECD 1152; in Roberts, Paul; Stockdale, Michael (eds), "Forensic Science Evidence and Expert Witness Testimony" (Edward Elgar Publishing, 2018) v.txt

content 2018 elecd 1152 robert paul stockdale michael ed forensic science evidence expert witness testimony edward elgar publishing 2018 vbook title forensic science evidence expert witness testimonyeditor robert paul stockdale michaelpublisher edward elgar publishingisbn 9781788111027section title contentsnumber page 2extract content list contributor table case table legislation introduction forensic science evidential reliability institutional reform paul robert michael stockdale 1 making sense forensic science evidence paul robert 2 assessing reliability gary edmond 3 admissibility reliability common law epistemology tony ward 4 regulating forensic science gillian tully 5 clarifying reliability continuum testing limit biometric fingerprint dna expert evidence sophie carr angela gallop emma piasecki gillian tully tim j wilson 6 examining reliability forensic pathology evidence tim j wilson adam jackson angela gallop emma piasecki 7 reliability procedural rule reform expert evidence civil criminal family procedure rule trichotomy michael stockdale 8 expert evidence law reform ireland liz heffernan 9 regulating expert evidence u court measuring daubert impact edward j imwinkelried vvii ix xviii1 27 71 106 130155184213 247275viforensic science evidence expert witness testimony10 new canadian paradigm judicial gatekeeping reliability expert evidence emma cunliffe 11 reliability reform expert evidence malaysia developmental state putting cart horse salim farrar mohd munzil muhamad 12 forensic science evidence non adversary criminal justice system joëlle vuille 13 need know questioning transnational scientific evidence carole mccartney rick graham index310333354376415

Rental Express Pty Ltd v Christensen [2012] QCATA 225 (12 November 2012).txt

rental express pty ltd v christensen 2012 qcata 225 12 november 2012 last updated 26 november 2012citation rental express pty ltd v christensen 2012 qcata 225parties rental express pty ltd respondent appellant vjoseph hillary christensen applicant respondent application number apl015 12matter type appealshearing date papersheard brisbanedecision dr j r forbes memberdelivered 12 november 2012delivered brisbaneorders made leave appeal granted appeal allowed award 12 255 rental express pty ltd made 19 october 2011 set aside substantive application remitted hearing adjudicator previously concerned case catchword administrative law adminstrative tribunal queensland civil administrative tribunal matter judgment entered agent instead principal application leave appeal refusal reopen whether leave granted whether proceeding reopened whether reasonable explanation non appearance hearingqueensland civil administrative tribunal act 2009 s 32 137 138 140 142residential tenancy rooming accommodation act 2008 206residential tenancy rooming accommodation regulation 2009 23arnold electrical data installation pty ltd v logan area group apprenticeship traineeship scheme ltd 2008 qca 100banque commerciale sa en liquidation v akhil holding ltd 1990 169 clr 279black v smallwood 1966 hca 2 1966 117 clr 52collen v wright 1857 engr 179 1857 7 e b 301darling casino ltd v nsw casino control authority 1997 hca 11 1997 143 alr 55deputy commissioner taxation v richard walter pty ltd 1995 hca 23 1995 183 clr 168drew v bundaberg regional council 2011 qca 359kelner v baxter 1866 lr 2 cp 174mcenearney v coggin 2007 qdc 120my distributor pty ltd v omaq pty ltd 1992 fca 329 1992 36 fcr 578at 589noosa hot property com pty ltd v olopai 2012 qcata 201quyd pty ltd v marvass pty ltd 2008 qca 257 2009 1 qd r 41r v medical appeal tribunal ex parte gilmore 1957 ewca civ 1 1957 1 qb 574appearances representation matter heard determined paper pursuant tos 32of thequeensland civil administrative tribunal act 2009 qcat act reason decision 1 application leave appeal 1 refusal reopen proceeding joseph hillary christensen awarded 12 255 rental express pty ltd rental express ii decision make award 2 2 first ground appeal may disposed application reopening refused 25 november 2011 subsection 139 5 qcat act provides tribunal decision reopening application final challenged appealed set aside called question another way thejudicial review act 1991or otherwise 3 privative clause kind completely immune judicial review 3 indisputable subsection 139 5 precludes appeal tribunal first ground appeal must fail 4 turn second ground appeal award damage persian rug allegedly caused faulty air conditioner residential premise leased christensen strigas may 2009 rental express strigas agent arranged lease behalf evidence long took damage occur step might taken remove rug cause 5 failing recover loss insurer christensen commenced proceeding february 2011 landlord joined respondent 6 matter came adjudicator 11 march 2011 mr christensen appeared person m barrow represented rental express discussion adjudicator adjourned proceeding christensen produce better evidence quantum time adjudicator broadly hinted landlord rental express might proper respondent 4 suggestion contrary rather obscurely headedsection 206of theresidential tenancy rooming accommodation act 2008 5 provides 206 lessor agent name detail 1 day tenant start occupying premise lessor lessor agent must give written notice tenant stating lessor name address service b lessor agent authorised stand lessor place proceeding prescribed regulation prescribed proceeding agent name address service 2 detail mentioned notice change lessor agent must give written notice change tenant within 14 day change 3 detail agent mentioned subsection 1 b given tenant section agent stand lessor place prescribed proceeding example proceeding may taken agent agent lessor b tribunal may make order agent agent lessor c settlement may made agent agent lessor 7 detail agent duly given tenant christensen clause 43 2 subject agreement provides unless special term provides otherwise agent may stand lessor place application tribunal lessor tenant relevant special term rental express might applied join principal co respondent third party 6 done future estate agent wishing avoid personal liability need bring indemnity proceeding principal may pay closer attention tosection 206and appropriate special condition 8 mention ofsection 206at either hearing lawyer appear whether participant aware section issue respect raised defence rental express simply longer landlord agent material time 7 contention raised part hearing 11 march 2011 christensen concedes july 2011 rental express told email longer manage property 8 claim repeated application reopening addition managing property claim made may point ask whether rental express still agent cause action arose 9 date alleged cessation agency uncertain whatever may evidence lessor rental express gave notice change required bysection 206 2 10 undisputed rental express aware time date venue resumed hearing 19 october 2011 basis contention landlord agent relevant time rental dispensed appearing claim 13 october 2011 office manager hazel grant wrote qcat registry term brisbane claim 405 11 rental express attending court 19 october 2011 claim reason longer manager sic property complaint u owner property tenant sic advised office longer managed property would need put claim owner 11 appears letter reach qcat adjudicator 19 october 2011 matter clear rental express aware hearing decided absolve attendance even letter 13 october 2011 placed adjudicator would entitled proceed 9 follow default judgment upon unliquidated claim could entered asking still necessary christensen prove case dispose issue raised rental express upon bore onus proof 10 one issue whether rental express landlord agent material time whether time cause action arose view prefer time claim filed related question whether agency could lawfully terminated without notice required bysection 206 2 fact notice given 12 describing question issue party bear mind informality pleading tribunal consider sufficiently raised agent allegation application reopening noted 8 13 many uncertainty remain issue ofcontinuingagency simply canvassed hearing 19 october 2012 view evidence sufficient evidence tribunal discharge onus proof borne christensen consider unsworn statement submission dated 21 november 2011 four week hearing bare assertion second hearing also unsworn would suffice discharge onus tribunal considered bare assertion specifying particular time capped brief rather confused exchange presiding member rental express lessor landlord owner mr christensen owner yes owner think name strigas course agency presiding member agent mr christensen yes 11 14 better evidence may available tendered required fact finding upon agency issue made evidence support finding insufficient assurance upon record thatsection 206of theresidential tenancy rooming accommodation act 2008was drawn party attention given consideration error law sufficiently central warrant leave appeal grant rehearing 12 15 rental express opportunity put claimant proof issue agency material time adduce evidence adduce rebut evidence led company seek raise new issue adverse inference may well arise order 1 application leave appeal granted 2 appeal allowed 3 award 12 255 rental express pty ltd made 19 october 2011 set aside 4 primary application remitted rehearing member adjudicator previously dealt case 1 required qcat act 142 3 2 application leave appeal filed 27 january 2012 part c appealing court decision made 19 10 2011 application open refused 25 11 2011 appealing case heard 3 r v medical appeal tribunal ex parte gilmore 1957 ewca civ 1 1957 1 qb 574at 583 584 deputy commissioner taxation v richard walter pty ltd 1995 hca 23 1995 183 clr 168 darling casino ltd v nsw casino control authority 1997 hca 11 1997 143 alr 55 4 transcript hearing 11 march 2011 page 4 owner responsibility owner got problem page 5 insurance claim fails owner page 6 want make 12 000 claim sic owner way round 5 noosa hot property com pty ltd v olopai 2012 qcata 201 6 queensland civil administrative tribunal act 2009 42 7 application reopening filed 15 november 2011part c 8 submission filed 21 november 2011 page 1 9 queensland civil administrative tribunal act 2009 93 10 distributor pty ltd v omaq pty ltd 1992 fca 329 1992 36 fcr 578at 589 banque commerciale sa en liquidation v akhil holding ltd 1990 169 clr 279at 282 303 mcenearney v coggin 2007 qdc 120 cfuniform civil procedure rule 1999r 476 1 defendant appear trial start plaintiff may call evidence establish entitlement judgment defendant way court directs 11 transcript hearing 19 october 2011 page 3 12 quyd pty ltd v marvass pty ltd 2009 1 qd r 41 2008 qca 257at 6 drew v bundaberg regional council 2012 qpelr 350 2011 qca 359at 18

Petroleum Engineering & Constructions Company Pty Ltd v Alexander [2014] QMC 5 (4 March 2014).txt

petroleum engineering construction company pty ltd v alexander 2014 qmc 5 4 march 2014 last updated 24 june 2014magistrates court queenslandcitation petroleum engineering v alexander 2014 qmc 5parties petroleum engineering construction company pty ltd plaintiff vian alexender defendant file m296 12division magistrate courtsproceeding claim application summary judgment cross applicationsoriginating court magistrate court toowoombadelivered 4 march 2014delivered toowoombahearing date 13 february 2014magistrate carroll jdorder paragraph 2c 2e 3 4 5 5a plaintiff amended statement claim struck ii plaintiff pay defendant cost defendant application assessed agreed iii within 21 day today plaintiff file serve amended statement claim failing claim struck iv plaintiff pay defendant cost plaintiff application assessed agreed catchword civil law practice procedure application summary judgmentuniform civil procedure rule 1999 r 292 r293 r 171building construction industry payment act 2004 19 4 counsel van de beld plaintiffhandran defendantsolicitors bm law plaintiffmurdoch lawyer defendantthe application 1 13 february 2014 two cross application came court 2 application filed first time 16 august 2013 defendant seeking following order pursuant rule 293 theuniform civil procedure rule 1999there judgment defendant plaintiff ii alternative pursuant rule 171 theuniform civil procedure rule 1999 statement claim filed 13 december 2012 soc struck b alternatively paragraph 2 3 4 5 6 7 soc struck iii application also sought order cost plaintiff 3 second cross application filed plaintiff 3 february 2014 seek order defendant application filed 16 august 2013 dismissed secondly pursuant rule 292 theuniform civil procedure rule 1999and 19 4 thebuilding construction industry payment act 2004 judgment entered favour plaintiff defendant plaintiff claim plaintiff also sought cost order defendant 4 deal firstly defendant application 5 mr handran defendant read following material application filed 16 august 2013 ii affidavit craig john sheppard filed 23 september 2013 iii amended statement claim amended statement claim filed 3 november 2013 iv amended defence file 24 july 2013 6 mr van de beld counsel appeared plaintiff dispute party 7 plaintiff claim 43 477 50 service provided defendant defendant request interest thereon 1 8 plaintiff business designing installing petroleum fuel storage dispensing system 2 9 defendant owner held owner service station located corner warrego highway colamba street chinchilla 3 10 2 february 2011 mr graham bell director plaintiff met defendant mcdonalds aspley discus design fuel system rebuild defendant service station installation construction fuel system 4 11 plaintiff alleges february 2011 contracted defendant would prepare design defendant would pay plaintiff 25 000 5 12 plaintiff alleges 16 february 2011 prepared draft design forwarded defendant 6 alleges february 2011 april 2012 defendant requested variation design including redesign redraw truck refuelling area new position change drawing include 10 000 litre ad blue tank line pump unit electrical upgrading lpg dispenser six hose relocation new position 7 28 march 2012 18 april 2012 plaintiff provided varied design defendant 8 first variation 13 7 july 2011 plaintiff forwarded defendant estimate price project far relevant email advises follows 7 july 2011mr ian alexanderdear iani working individual pricing phase project approximate cost set drawing design site meeting 25 000 new layout forward design diesel truck refuelling area faithfully 14 plaintiff alleges january 2012 defendant requested variation contract namely plaintiff locate inspect underground lpg tank 9 variation request 15 plaintiff alleges january 2012 located inspected underground fuel tank gold coast 10 second variation 16 plaintiff alleges contract made defendant construction work related good service pursuant thebuilding construction industry payment act 2004 act contract construction contract pursuant act 11 17 plaintiff alleges premise outlined entitled progress payment term defined act defendant 12 18 13 november 2012 electronic mail plaintiff alleges served defendant payment claim pursuant act design first variation second variation 13 19 invoice payment claim 13 november 2012 significant document purpose application reason set relevant detail full description amended invoice 13 11 2012all consultation ian alexander relating design fuel system rebuild existing service station cnr warrego highway colamba st chinchilla qld per meeting mcdonalds aspley per estimated cost 7thjuly 2011 email ian alexander 7 7 2011 cost complete drawing p007 ro p008 ro p009 ro po10 ro given ian alexander toowoomba 29 3 11amount 25 000 00codegstvariations 1 redesign redraw truck refuelling area new position flooding chinchilla change drawing include 10 000 litre ad blue tank line pump unit electrical upgrade lpg dispenser 6 hose relocate new position draw additional fuel line 6 hose dispenser drawing given ian alexander meeting coffee club hamilton 18 4 12 drawing mumbers p007 2 p008 3 p009 3 p010 3 p011 1 p012 0 12 650 00gstvariation 2requested ian alexander graham bell january 2012 locate underground lpg tank located tank gold coast advised ian alexander inspect inspection carried 29 1 12 site met david batchelor site foreman 4d installation carried inspection tank reported lpg installer advised tank reconditioned reported finding ian alexander also numerous phone call brian jaco 03 95411386 owner rep time spent lpg tank investigation 10 hour graham belltransport toll outgoings 1 500 00 375 00gstgsteft detail suncorp bsb 484 799 account 084002350 name peccfax advice 07 3888 7633 thanksthis claim made building construction industry payment act 2004 qld 20 invoice 13 november 2012 amends earlier invoice 26 june 2012 detail provided itemised amount total amount 43 477 50 21 defendant alleges party found entered construction contract denied contract uncertain thereby unenforceable alternatively subject condition precedent whereby party reach agreement rate expense charge applied agreement ever reached 14 22 alternative defendant alleges party found entered construction contract denied contract party abandoned 7 june 2012 particular abandonment inferred among thing following email dated 6 june 2012 defendant graham bell behalf plaintiff ii email dated 7 june 2012 graham bell behalf plaintiff defendant iii thereafter neither party took step perform construction contract neither party purport terminate contract party breach within reasonable time 15 23 sake completeness set relevant passage email 6 7 june 2012 referred together email graham bell defendant 1 june 2012 give context two email email graham bell defendant 1 june 2012 hi ian thanks email wondering going electrician passed site couple week ago told sic bit activity going want sic need come site meet builder run program available next week week meet situated email 6 june 2012 defendant graham bell graham think need make site visit forwarded current charge expense rate rough estimation week men required work site attracted fair amount interest different contractor including fuel filter sent email requesting quote said sic charge rate would back week please forward current expense rate charge regard ian email 7 june 2012 graham bell defendant seeing invited fuel installers price project forward invoice original design redesign truck fuelling area electrical design procurement lpg tank meeting cost designer pocket expense meeting cost graham bell plaintiff sent invoice 26 june 2012 defendant 16 24 substance defendant defence claim act contained paragraph 3 e f amended defence dated 24 july 2013 set e defendant alleges plaintiff carry construction work supply related good service phrase used act 6 june 2012 ii 26 june 2012 plaintiff purported serve payment claim defendant f defendant say premise pleaded defence plaintiff reference date upon make payment claim alleged ii plaintiff person entitled make claim progress payment section 12 act purporting serve payment claim subject proceeding iii purported amended payment claim valid payment claim act 25 relevant provision thebuilding construction industry payment act 2004 relevantly term construction work defined section 10 1 act mean construction alteration repair restoration maintenance extension demolition dismantling building structure whether permanent falling form part land ii term related good service defined section 11 1 mean follows good following kind plant material whether supplied sale hire otherwise use connection carrying construction work service following kind architecture design surveying quantity surveying service relating construction work 12 right progress paymentsfrom reference date construction contract person entitled progress payment person undertaken carry construction work supply related good service contract 13 amount progress paymentthe amount progress payment person entitled relation construction contract amount calculated contract b contract provide matter amount calculated basis value construction work carried undertaken carried related good service supplied undertaken supplied person contract valuation construction work related good service 1 construction work carried undertaken carried construction contract valued contract b contract provide matter regard contract price work ii rate price stated contract iii variation agreed party contract contract price rate price stated contract adjusted specific amount iv work defective estimated cost rectifying defect 2 related good service supplied undertaken supplied construction contract valued term contract b contract provide matter regard contract price good service ii rate price stated contract iii variation agreed party contract contract price rate price stated contract adjusted specific amount iv good defective estimated cost rectifying defect 3 subsection 2 b material component form part building structure work arising construction work material component included valuation become payment become property party person construction work carried 17 payment claim 1 person mentioned section 12 claim entitled progress payment theclaimant may serve payment claim person construction contract concerned may liable make payment therespondent 2 payment claim must identify construction work related good service progress payment relates b must state amount progress payment claimant claim payable theclaimed amount c must state made act 3 claimed amount may include amount respondent liable pay claimant section 33 3 b held construction contract respondent claimant claim due release 4 payment claim may served within later period worked construction contract b period 12 month construction work claim relates last carried related good service claim relates last supplied 5 claimant serve 1 payment claim relation reference date construction contract 6 however subsection 5 prevent claimant including payment claim amount subject previous claim 18 payment schedule 1 respondent served payment claim may reply claim serving payment schedule claimant 2 payment schedule must identify payment claim relates b must state amount payment respondent proposes make thescheduled amount 3 scheduled amount le claimed amount schedule must state scheduled amount le le respondent withholding payment reason respondent reason withholding payment 4 subsection 5 applies claimant serf payment claim respondent b respondent serve payment schedule claimant within earlier time required relevant construction contract ii 10 business day payment claim served 5 respondent becomes liable pay claimed amount claimant due date progress payment payment claim relates 19 consequence paying claimant payment schedule 1 section applies respondent becomes liable pay claimed amount claimant section 18 respondent failed serve payment schedule claimant within time allowed section b fails pay whole part claimed amount due date progress payment payment claim relates 2 claimant may recover unpaid portion claimed amount respondent debt owing claimant court competent jurisdiction ii make adjudication application section 21 1 b relation payment claim b may serve notice respondent claimant intention suspend section 33 carrying construction work supplying related good service construction contract 3 notice subsection 2 b must state made act 4 claimant start proceeding subsection 2 recover unpaid portion claimed amount respondent debt judgement favour claimant given court unless court satisfied existence circumstance referred subsection 1 b respondent proceeding entitled bring counterclaim claimant ii raise defence relation matter arising construction contract discussion 26 contract plaintiff defendant supply related good service satisfied terminated exchange email 6 7 june 2012 accept submission defendant disputed plaintiff following exchange email neither party took step perform contract neither party purported terminate contract party breach within reasonable time reference date argument 27 plaintiff alleges submitted payment claim 13 november 2012 design two variation question arises whether payment claim delivered contract terminated 28 mr van de beld submits payment claim served 13 november 2012 payment claim act identified construction work related good service progress payment related b stated amount progress payment plaintiff claimed payable c stated act made within period 12 month construction work carried related good service last supplied 17 29 submitting payment claim made within 12 month construction work carried related good service last supplied would appear relying upon section 17 4 act set 30 satisfied design work undertaken plaintiff come within definition related good service 18 term defined act 31 also satisfied sourcing inspection underground lpg tank also come within definition 32 mr handran submits light authority referred purpose section 12 act reference date cannot occur termination contract therefore submits plaintiff person entitled progress payment person undertaken carry construction work supply related good service contract accordance section 12 act emphasis mine 33 mr handran refers following authority walton construction qld pty ltd v corrosion control technology pty ltd 19 mcnab nq pty ltd v walkrete pty ltd 2013 qsc 128 kellett street partner pty ltd v pacific rim trading co pty ltd or 20 34 walton construction matter honour justice peter lyon referred decision brodyn pty ltd v davenport 21 decision new south wale court appeal hodgson ja wrote decision court member agreeing therewith 35 paragraph 39 judgment peter lyon j referred brodyn decision court considering meaning definition reference date expression appears section 8 2 new south wale equivalent act honour referred passage judgment brodyn however 8 2 act provide reference date cease termination contract cessation work 36 paragraph 40 judgment peter lyon j said 40 passage e passage referred paragraph 39 reason would appear support view monthly reference date continue accrue least nsw act 12 month cessation work notwithstanding termination contract however difference seem without importance statutory provision identified reference date legislation two state 37 paragraph 42 43 honour said without including footnote 42 use expression construction contract found queensland definition make somewhat difficult conclude reference date occurs termination longer contract might reference date conclusion reference date occur termination contract view also consistent general nature payment provision made bcip act say payment provisional nature made life contract 43 second difference noted two definition also significance language used bicp act e act give greater primacy provision contract dealing making claim progress payment language nsw act 38 mcnab case paragraph 28 de jersey cj followed reasoning justice lyon walton said 28 whether reference date 12 sch 2 arise purpose act subsequently effectual termination relevant contract respectfully adopt reasoning lyon j walton 39 kellet street partner matter paragraph 19 reason douglas j concluded contract applicant first respondent terminated conversation 28 march 2012 last sentence paragraph said following decision peter lyon j walton construction qld pty ltd v corrosion control technology pty ltd conclude reference date occur termination 40 mr van de beld submission payment claim made within 12 month construction work carried would appear consistent decision nsw court appeal brodyn referred however peter lyon j specifically declined follow brodyn decision followed de jersey cj mcnab decision douglas j keller street partner decision satisfied reference date purpose section 12 act cannot occur termination construction contract calculation value variation 41 looking invoice 13 november 2012 broken four separate component first component respect design fuel system amount claimed 25 000 plus gst ii second component refers variation 1 includes redesign redraw truck refuelling area change drawing include 10 000 litre ad blue tank upgrade lpg dispenser draw additional fuel line amount claimed 12 650 plus gst iii third component relates request defendant locate underground lpg tank inspection thereof amount claimed 1500 plus gst iv fourth component relates transport toll outgoings 375 plus gst second third fourth component make reference respective sum 12 650 1 500 375 calculated contract contain mechanism calculating respective amount section 13 b act therefore applies amount progress payment claimed calculated based value work section 14 provides basis value determined 22 42 plaintiff plead basis advance evidence show value work may determined moreover may possibly reasonable sum work performed 23 43 extra work performed outside contract upon request contractor entitled paid reasonable sum work implication payment additional work must reasonable 24 44 either case requirement section 14 act appertaining valuation exercise present 25 45 notice fee estimate given work undertaken defendant gave notice fee work absent matter kind yardstick ass value work undertaken 26 46 said reimbursement type expense claimed incurrence cost sworn source voucher ever produced 27 47 circumstance satisfied amended invoice includes sum calculated accordance act therefore valid progress payment 48 fk gardner son pty ltd v dirmin pty ltd 28 paragraph 24 honour ann lyon j said regime set act 24 act set statutory regime recovery progress claim dependant series step completed must valid statutory entitlement progress payment payment claim made payment schedule issue within time unpaid portion claim becomes debt statutory regime depends strict compliance provision act 49 circumstance satisfied amended invoice dated 13 november 2012 delivered termination construction contract party accordingly plaintiff entitled progress payment pursuant 12 act follows plaintiff person entitled progress payment contract secondly amount amended invoice calculated accordance 13 b act order sought defendant 50 application filed 16 august 2013 defendant seek order pursuant rule 293 ucpr judgment favour plaintiff alternatively seek order pursuant rule 171 ucpr plaintiff statement claim filed 13 december 2012 struck alternatively certain paragraph thereof struck 51 rule 293 relevantly term 293 1 defendant may time filing notice intention defend apply court part judgment plaintiff 2 court satisfied plaintiff real prospect succeeding part plaintiff claim b need trial claim part claim court may give judgment defendant plaintiff part plaintiff claim may make order court considers appropriate 52 indeputy commission taxation v salcedo 29 williams ja referred toswain v hillman 30 court appeal england considering rule 24 2 equivalent rule 292 rule 292 provides plaintiff may obtain summary judgment defendant applying principle must applied defendant seek summary judgment plaintiff lord woolf mr said 92 word real prospect succeeding need amplification speak word real distinguishes fanciful prospect success direct court need see whether realistic opposed fanciful prospect success 53 plaintiff amended statement claim unsatisfactory state pleads part claim contract claim seeking relief act discus context plaintiff cross application 54 view plaintiff real prospect succeeding claim relief act accordingly paragraph amended statement claim e 2c 2e 3 4 5 5a plead relief struck defendant cost application assessed agreed plaintiff cross application 55 mr van de beld read following material application filed 3 february 2014 ii affidavit graham eric bell filed 31 january 2014 iii amended statement claim filed 7 november 2013 iv amended defence filed 24 july 2013 v reply dated 6 august 2013 56 application filed 3 february 2014 plaintiff seek following relief 1 defendant application filed 16 august 2013 dismissed 2 pursuant rule 292 uniform civil procedure rule 1999 19 4 building construction industry payment act 2004 judgment entered favour plaintiff defendant plaintiff claim plaintiff also seek cost 57 interesting note plaintiff application seek relief alternative e pursuant rule 292 ucpr judgement pursuant 19 4 act however amended statement claim plead claim alternative 58 view plaintiff pleaded claim contract alternative relief act see 5 act 59 striking paragraph plaintiff amended statement claim claiming relief act left partly pleaded claim contract 60 defendant filed defence either amended statement claim amended statement claim true mr van de beld submits defendant deemed admit allegation fact made plaintiff 31 however view plaintiff properly pleaded case one cannot critical defendant filing defence thereto 61 one also conscious rule 5 2 3 ucpr following term 2 rule applied court objective avoiding undue delay expense technicality facilitating purpose rule 3 proceeding court party impliedly undertakes court party proceed expeditious way 62 despite passing almost 15 month since plaintiff filed claim three unsuccessful attempt properly plead case plaintiff amended statement claim unsatisfactory reason outlined defendant filed application summary judgement 16 august 2013 plaintiff file cross application almost 6 month later 3 february 2014 plaintiff dilatory prosecution matter complied rule 5 3 ucpr order 63 order paragraph 2c 2e 3 4 5 5a plaintiff amended statement claim struck ii plaintiff pay defendant cost defendant application assessed agreed iii within 21 day today plaintiff file serve amended statement claim failing claim struck iv plaintiff pay defendant cost plaintiff application assessed agreed 1 claim filed 13 dec 2012 2 para 1 b amended statement claim amended statement claim 3 par 1a amended statement claim 4 para 1b amended statement claim 5 para 2b amended statement claim 6 para 2d amended statement claim 7 para 2d b amended statement claim 8 para 2d c amended statement claim 9 para 2d amended statement claim 10 para 2d e amended statement claim 11 para 2c amended statement claim 12 para 2e amended statement claim 13 para 3 amended statement claim 14 para 2 1 amended defence dated 24 july 2013 15 para 2 2 amended defence 16 page 14 exhibit cjs 1 affidavit craig john sheppard sworn 23 sept 2013 17 para 20 plaintiff submission 18 see 11 1 b ii act 19 2012 2 qd r90 20 2013 qsc 298 21 2004 nswca 394 2004 61 nswlr 421 443 22 para 34 defendant submission 23 para 35 defendant submission 24 para 36 defendant submission 25 para 37 defendant submission 26 para 38 defendant submission 27 para 39 defendant submission 28 2006 qsc 243 29 2005 qca 227 2005 2 qdr 232 30 2001 1 er 91 31 rule 166 ucpr

N'Garu, Elizabeth [2001] MRTA 4659 (9 October 2001).txt

n garu elizabeth 2001 mrta 4659 9 october 2001 last updated 12 december 2001 2001 mrta 4659catchwords review visa refusal subclass 560 clause 560 224 genuine student relevance studyreview applicantelizabeth wanjiku ng aruvisa applicant abovetribunal migration review tribunalpresiding member janis buttmrt file number n01 01260dima file number clf2001 007826date decision 9 october 2001at canberradecision tribunal remit application made visa applicant student temporary class tu visa department immigration multicultural affair reconsideration direction visa applicant meet following criterion subclass 560 visa clause 560 224 schedule 2statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural affair delegate m elizabeth wanjiku ng aru visa applicant national kenya born 22 november 1973 applied student temporary class tu visa 24 august 2000 d1 f blue tag 4 delegate decision refuse grant visa made 8 february 2001 d1 f 3 jurisdiction standing2 visa applicant lodged application review tribunal 7 march 2001 t1 f 2 13 decision reviewable tribunal application review properly made person standing apply review legislation policy3 themigration act 1958 act various regulation made act principally themigration regulation 1994 regulation provide different class visa criterion grant visa reaching decision tribunal bound act various regulation written direction issued minister section 499 act matter may subject departmental policy found publication theprocedures advice manual 3 pam3 themigration series instruction msis produced department immigration multicultural affair dima tribunal required regard policy apply unless cogent reason departing policy 4 tribunal power affirm vary set aside decision refuse grant visa also power remit application visa remittal may accompanied direction visa applicant meet one criterion visa matter minister delegate consider remaining criterion review tribunal generally limited consideration whether visa applicant meet one essential criterion application remitted decision affirmed basis 5 legislation policy material immediately relevant review legislation item 1222 schedule 1 regulationspart 560of schedule 2 regulationsschedule 8 regulationsdirections section 499 act nildepartmental policy procedure advice manual 3 generic guideline g student visasprocedures advice manual 3 schedule 2 student visa 560procedures advice manual 3 schedule 8 visa conditionscases baidakova v minister immigration multicultural affair 1998 fca 1436pradhan v minister immigration multicultural affair 1999 fca 1240 1999 94 fcr 916 tribunal generally regard regulation stood time visa application however subsequent amendment may apply circumstance evidence7 tribunal following document t1 mrt case file n01 01260 folio numbered 1 53 d1 dima case file clf2001 7826 folio selectively numbered blue tag 1 5 8 visa applicant entered australia subclass 560 23 july 1999 last held visa subclass 560 valid 31 august 2000 t1 f 27 visa applicant since held bridging visa granted basis application visa subject review 9 visa applicant completed master degree international relation university nsw 28 july 2000 d1 f blue tag 1 visa applicant applied enrol diploma business management cricos code 13108nsw 104 week course commencing 22 august 2000 finishing 22 august 2002 d1 f blue tag 2 10 delegate stated visa granted basis applicant fails satisfy meet criterion set regulation 560 224 1 along clause 9 505 9 5 6 9 5 7 guideline set procedural advice manual d1 f blue tag 5 11 visa applicant stated lodging application review course would enhance career prospect kenya decision pursue additional course based advice friend parent together research job requirement career prospect t1 f 9 visa applicant provided following document support submission statement attendance t1 f 28 transcript academic record t1 f 29 sample employment opportunity t1 f 30 34 course outline t1 f 35 37 visa applicant statement t1 f 38 39 12 telephone hearing held 8 october 2001 visa applicant m elizabeth ng aru provided sworn evidence visa applicant stated considers diploma business management course relevant future career anxious given opportunity complete course said see working humanitarian non government organisation project management skill would useful enhance career prospect 13 visa applicant stated since provided interim statement result done subject managing change yet obtained result subject reasons14 time visa application lodged class tu contained number subclass subclass respect claim advanced subclass 560 evidence suggest visa applicant meet key criterion subclass 15 criterion subclass 560 visa relevant consideration whether delegate decision affirmed application visa remitted department set clause 560 224 schedule 2 regulation 16 suggestion evidence tribunal visa applicant meet clause 560 212 560 213 560 222 560 227 17 support application visa applicant stated completed master art degree major international relation future career either diplomatic corp cultural attache management international agency page 3 decision record d1 f blue tag 5 18 light statement delegate found visa applicant subsequent choice course focus small business middle management position inconsistent first choice subsequently delegate refused visa applicant visa concerned visa applicant enrolled approved course relevant appropriate background training pam 9 5 5 9 5 6 560 224 1 subject subclauses 4 5 minister satisfied applicant genuine applicant entry stay student regard relevant matter relevant section pam relevance study9 5 5 assessing whether study relevant student proposed future past employment officer regard policy applicant whether offshore onshore regarded genuine applicant unless able demonstrate proposed course relevant appropriate current circumstance applying visa undertake course australia able satisfy officer using study program merely mean extending stay australia officer may taken consideration factor student progress length time taken complete last course nature academic level proposed course 9 5 6 even student looking new direction career course still relevance background level training intention leave australia9 5 7 assessing intention otherwise student whether offshore onshore leave australia end authorised period temporary stay keeping mind one factor assessing genuineness 19 delegate also concerned visa applicant undertaking course view prolonging stay australia 20 evidence file show visa applicant australia since 23 july 1999 undertook master art degree university nsw well academically ending credit average review submission t1 f 9 10 visa applicant state undertook diploma course course would make competitive job market kenya provided example job available habitat humanity international include preference higher degree well basic accounting budgeting skill diploma business administration course outline indicates course directed towards management co ordination project appears provide suitable grounding habitat humanity position course also seen suitable basis career business administration hearing visa applicant indicated generally interested working humanitarian non government agency conclusion21 basis material tribunal satisfied visa applicant genuine student undertaking course relevant career plan furthermore performing well academically course attendance rate 88 7 circumstance meet legislative requirement student visa 22 circumstance tribunal make following finding visa applicant genuine applicant entry stay student thus meet 560 224 23 given finding appropriate course remit application visa dima consider remaining criterion visa tribunal position decide remaining criterion decision24 tribunal remit application made visa applicant student temporary class tu visa dima reconsideration direction visa applicant meet following criterion subclass 560 visa clause 560 224 schedule 2

N94_02979 [1996] RRTA 1911 (27 June 1996).txt

n94 02979 1996 rrta 1911 27 june 1996 refugee review tribunaldecision reason decisionapplicant rrt reference bn94 02979country reference fijitribunal member w gerkensdate decision 27 june 1996place sydneydecision 1 tribunal affirms decision grant protection visacatchwords article 1e permanent resident australiadecision reviewthis application review decision made 15 january 1992 refusing grant protection visa issuethe convention protocol central issue determination matter whether applicant non citizen australia australia protection obligation convention relating status refugee done geneva 28 july 1951 convention amended protocol relating status refugee done new york 31 january 1967 protocol see sub 36 2 themigration act 1958 theact term article 1 2 convention protocol australia protection obligation 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 reason follow unnecessary consider applicant claim article 1 2 department immigration ethnic affair advised applicant granted permanent resident status australia 20 october 1995 applicant since withdrawn application tribunal review protection visa decision response letter offered applicant choice withdrawing continuing application tribunal applicant granted permanent residence australia article 1e may relevant article 1e convention read convention shall apply person recognised competent authority country taken residence right obligation attached possession nationality country australia proper construction article 1e convention considered olney j innagalingam v minister immigration local government ethnic affair 1992 fca 470 1992 38 fcr 191 olney j stated 1e part definition refugee person applies refugee purpose themigration act 1958 197 correct question asked case whether applicant well founded fear persecution country given protection whether applicant recognised competent authority country right obligation attached possession nationality country court stated clearly article 1e applies case person concerned posse something le nationality requires something protection state persecution country 200 whilst precise test formulated determination right obligation required satisfy article 1e number tribunal decision address issue whether convention applies applicant refugee status granted permanent residence status australia see example n94 04219 n94 03741 bn94 03012 would appear essential person right entry country residence freedom removal expulsion country may also suggested phrase right obligation attached possession nationality country encompasses social economic right including access employment social welfare education equal respect right freedom freedom speech political opinion religion well freedom movement within country residence appear equal political right necessary satisfy article 1e see robinson convention relating status refugee commentary nehemiah robinson 65 explained tribunal similar circumstance n94 04219 21 november 1994 applicant granted right remain australia permanently entitled access social service medicine education entitled travel plea benefit protection australian law thing barred voting conscription 18 month apply australian citizenship six month later may become australian citizen find applicant taken residence australia purpose article 1e right obligation australian national consequence refugee convention apply applicant protection visa cannot granted decision tribunalthe tribunal affirms decision grant protection visa w gerkens 1 accordance withs431of themigration act1958

1415235 [2014] MRTA 2906 (19 December 2014).txt

1415235 2014 mrta 2906 19 december 2014 last updated 19 january 20151415235 2014 mrta 2906 19 december 2014 decision recordapplicants mr nirmal chalisemrs chandra kala lamsalmaster nirmaad chalisemrt case number 1415235dibp reference bcc2014 819074tribunal member suseela durvasuladate 19 december 2014place decision sydneydecision tribunal affirms decision grant applicant skilled independent permanent visa statement made 19 december 2014 10 32amstatement decision reasonsapplication reviewthis application review decision made delegate minister immigration 8 september 2014 refuse grant applicant skilled independent permanent class si subclass 189 skilled independent visa unders 65of themigration act 1958 act point based visa designed skilled applicant submitted expression interest received invitation apply visa first named applicant applicant invited apply visa 24 march 2014 applied visa 24 march 2014 criterion grant subclass 189 visa set inpart 189of schedule 2 themigration regulation 1994 regulation delegate refused grant visa applicant satisfy point test criterion cl 189 214 thefirst second named applicant appeared tribunal 5 december 2014 give evidence present argument applicant represented relation review registered migration agent following reason tribunal concluded matter affirmed consideration claim evidencethe issue present case whether applicant satisfies point test criterion requires applicant score assessed relation visa subdivision b division 3 ofpart 2of act le score stated invitation apply visa andis le qualifying score subdivision b division 3 ofpart 2of act provides point system applicant given assessed score based prescribed number point particular attribute qualification point applicable case prescribed schedule 6d regulation r 2 26ac applicant achieves qualifying score assessed score equal applicable pas mark 94 act set minister time time 96 2 tribunal must consider applicant qualification point prescribed schedule 6d pas mark force time delegate assessment force time assessment apply whichever favourable applicant s 93 350 act element point test relate nominated skilled occupation occupation skilled occupation specified relevant instrument skilled occupation number point specified instrument available number point available applicable person accordance specification occupation r 1 15i relevant instrument purpose legislative instrument immi 14 049 present case applicant nominated occupation electronics engineer anzsco 233411 applicant qualifying score applying law force time delegate assessment part 6d 1 age qualificationspoints available part applicant aged 18 44 year time invitation apply visa time invitation applicant aged 31 year therefore applicant entitled 30 point part part 6d 2 english language qualificationspoints available part basis applicant level english language proficiency time invitation apply visa applicant provided result ielts test conducted 14 april 2012 achieved score 8 0 listening 8 5 reading 7 0 writing 7 0 speaking therefore proficient english defined r 1 15d evidence tribunal indicating superior english therefore applicant entitled 10 point part part 6d 3 overseas employment experience qualificationspoints may available part time invitation apply visa applicant employed outside australia applicant nominated skilled occupation closely related skilled occupation least 36 60 96 month 10 year immediately time applicant claim application worked closely related skilled occupation outside australia 3 year 36 month 10 year invitation apply visa claim employment experience ta electronics lab charge lekh bahadur gurung nepal 21 may 2009 25 november 2012 duty included taking regular class various electronics subject conducting electronics lab conducting assisting student major minor project support claim applicant provided letter pokhara engineering college stating applicant working department electronics communication teaching assistant assistant lecturer lab charge 31 may 2009 december 2012 hearing applicant advised part point assessment disputing point allocated overseas work experience believed worked closely related skilled occupation least 36 month 10 year invitation apply visa claiming worked nominated skilled occupation worked teaching assistant lab charge pokhara engineering college obtained engineering qualification duty included supervising laboratory work student giving lecture supervising examination marking paper laboratory work conducting project required university applicant claimed work university lecture tutor tribunal put applicant university lecturer tutor skilled occupation skilled occupation list specified minister legislative instrument applicant claimed order teach engineering engineering qualification considered skilled occupation applicant representative submitted applicant employed closely related skilled occupation referred case law discussing meaning closely related representative referred departmental policy state closely related skilled occupation also included occupation consolidated skilled occupation list tribunal accepts applicant evidence hearing task duty undertook pokhara engineering college 21 may 2009 25 november 2012 based applicant evidence written reference tribunal find applicant employed nominated skilled occupation electronics engineer tribunal find applicant employed outside australia occupation university tutor anzsco 2421 13 university lecturer anzsco 2421 11 tribunal must determine whether occupation skilled occupation skilled occupation defined r 1 15i 1 occupation specified minister instrument writing skilled occupation case relevant instrument legislative instrument immi 14 049 skilled occupation subclass 189 visa set column schedule 1 instrument skilled occupation list sol neither university lecturer anzsco 2421 11 university tutor anzsco 2421 13 list tribunal therefore find occupation university lecturer university tutor skilled occupation specified minister instrument writing applicant claim occupation skilled occupation needed engineering qualification teach student establish applicant performing skilled occupation stated university lecturer anzsco 2421 11 university tutor anzsco 2421 13 skilled occupation specified minister instrument writing representative referred tribunal departmental policy state closely related skilled occupation also included occupation consolidated skilled occupation list csol instance csol column schedule 2 instrument includes university lecturer university tutor tribunal agree interpretation considers department policy go beyond scope legislation inconsistent legislation paragraph 3 4 5 instrument clearly state csol applies relation person nominated state territory government agency purpose r 5 19 4 r 186 234 2 direct entry employer nomination scheme none circumstance apply case reason tribunal find occupation university tutor university lecturer skilled occupation defined r 1 15i 1 therefore necessary tribunal determine whether closely related nominated skilled occupation tribunal find applicant employed nominated skilled occupation closely related skilled occupation least 36 60 96 month 10 year immediately time invitation apply visa therefore subject consideration ofpart 6d 5 applicant entitled point part part 6d 4 australian employment qualificationspoints may available part time invitation apply visa applicant employed australia nominated occupation closely related skilled occupation least 12 36 60 96 month 10 year immediately time applicant made claim relation australian employment qualification therefore entitled point part part 6d 5 aggregating point employment experience qualificationsunder part applicant qualification mentioned bothparts 6d 3and6d 4and combined number point would awarded part 20 point 20 point must given part qualification point given underpart 6d 3or6d 4 combined number point would awarded underpart 6d 3and6d 4is 0 point 20 point applicant entitled point part part 6d 6 australian professional year qualificationsfive point available part time invitation apply visa applicant completed professional year course specified instrument australia nominated occupation closely related skilled occupation least 12 month immediately preceding 48 month applicant made claim completed professional year therefore applicant entitled point part part 6d 7 educational qualificationsan applicant may entitled point part time invitation apply visa met requirement award specified australian qualification overseas qualification recognised standard determining whether overseas qualification recognised standard item 6d71 b 6d72 b regard must matter set r 2 26ac 5 include recognition qualification relevant assessing authority recognition qualification specified body duration study relevant matter tribunal satisfied applicant completed bachelor engineering electronics communication engineering anna university chennai 2008 applicant skill assessment engineer australia indicates relevant assessing authority recognised applicant qualification tribunal therefore satisfied overseas qualification recognised standard evidence applicant completed doctorate therefore applicant entitled 15 point part part 6d 8 australian study qualificationsfive point may awarded part time invitation apply visa applicant met australian study requirement defined r 1 15f regulation meet study requirement applicant must satisfy minister completed 1 degree diploma trade qualification award australian educational institution result registered course course instruction english applicant must undertaken course australia holding visa authorising study completed total least 16 calendar month result total least 2 academic year study applicant made claim studied australia australian study requirement met time invitation applicant entitled point part part 6d 9 credentialed community language qualificationsfive point may awarded part time invitation apply visa applicant qualification particular language awarded accredited specified body specified standard language applicant made claim relation credentialed community language qualification therefore applicant entitled point part part 6d 10 study regional australia low population growth metropolitan area qualificationsfive point may awarded part time invitation apply visa applicant met australian study requirement defined r 1 15f study undertaken applicant lived specified area australia distance education qualify study purpose applicant made claim relation qualification therefore applicant entitled point part part 6d 11 partner skill qualificationsfive point may awarded part applicant spouse de facto partner also applicant visa subclass australian citizen permanent resident time applicant invited apply visa spouse partner must 50 year age nominated specified skilled occupation assessed specified skill competent english applicant made claim partner skill qualification therefore applicant entitled point part part 6d 12 state territory nomination qualificationspoints available part certain circumstance applicant invited apply subclass 190 skilled nominated visa applicant case invited apply visa therefore entitled point part part 6d 13 designated area sponsorship qualificationspoints available part certain circumstance applicant invited apply subclass 489 skilled regional provisional visa applicant case invited apply visa therefore entitled point part conclusion pointsbased assessment regard legislation effect time delegate assessment number point awarded applicant schedule 6d 6d 1 age 30 points6d 2 english language 10 points6d 3 overseas employment experience 0 points6d 4 australian employment experience 0 points6d 5 aggregated employment 0 points6d 6 australian professional year 0 points6d 7 educational 15 points6d 8 australian study 0 points6d 9 credentialed community language 0 points6d 10 study regional low population area 0 points6d 11 partner skill 0 points6d 11 state territory nomination 0 points6d 12 designated area sponsorship 0 pointstotal points55pointsthe applicant assessed score point system therefore 55 point time delegate assessment pas mark 60 point legislative instrument immi 12 017 applicant therefore achieved qualifying score pas point test time delegate assessment applicant achieved qualifying score applying law force time tribunal assessment relevant change regulation tribunal find point assessment remains time decision applicant therefore achieved qualifying score pas point test time tribunal assessment applicant achieved score stated invitation apply visa also requirement applicant score le score stated invitation apply visa written invitation given applicant stated score 60 point basis point assessment tribunal find applicant achieved score stated invitation apply visa evidence tribunal secondary applicant meet primary criterion grant visa applicant made claim regard reason applicant entitled maximum 55 point point test applicant score le qualifying score score stated invitation apply visa applicant satisfy cl 189 214 prescribed criterion grant visa decision review affirmed decisionthe tribunal affirms decision grant visa suseela durvasulamember

Australian Aerospace Limited re Australian Aerospace (Darwin Operations) Enterprise Agreement 2010 [2010] FWAA 4764 (29 June 2010).txt

australian aerospace limited australian aerospace darwin operation enterprise agreement 2010 2010 fwaa 4764 29 june 2010 fair work australiadecisionfair work act 2009s 185 approval enterprise agreementaustralian aerospace limited ag2010 9144 australian aerospace darwin operation enterprise agreement 2010airline operationscommissioner raffaellisydney 29 june 2010application approval australian aerospace darwin operation enterprise agreement 2010 1 application made approval enterprise agreement known theaustralian aerospace darwin operation enterprise agreement 2010 agreement application made pursuant tos 185of thefair work act 2009 act agreement single enterprise agreement 2 satisfied requirement ofss186 187and188as relevant application approval met 3 agreement approved accordance withs 54 operate 6 july 2010 nominal expiry date agreement 5 april 2013 commissionerprinted authority commonwealth government printer price code g ae878709 pr998720

F & S [2005] FamCA 44 (8 February 2005).txt

f 2005 famca 44 8 february 2005 last updated 15 february 2005 2005 famca 44family law act 1975in full courtof family court australiaappeal na50 2004at brisbanefile brf5353 2003between fappellant father srespondent motherchild representativereasons judgmentcoram bryant cj kay holden jjdate hearing 27 october 2004date judgment 8 february 2005appearances appellant fatherin person mr galloway counsel instructed anderson solicitor po box 84 acacia ridge qld 4110 appeared behalf respondent mother m mcmillan counsel instructed williams lawyer po box 340 coorparoo qld 4151 appeared behalf child representative f sna50 2004coram bryant cj kay holden jjdate hearing 27 october 2004date judgment 8 february 2005catchwords practice procedure reliance unserved affidavit undefended hearing child residence contact final order trial judge granting residence mother made father apparently elected appear hearing affidavit filed morning hearing child representative containing much material adverse father rule 15 06 provides affidavit may relied hearing trial filed served accordance rule 14 day pre trial conference order although court power vary time dispense compliance rule process adopted dictate justice make appropriate party appears entitled expect proceeding dealt day fixed trial buljubasic v buljubasic 1999 famca 474 1999 flc 92 865 expectation relieve court obligation provide procedural fairness absent party appropriate stood matter enable father given material relied upon warned appear following morning matter would proceed absence appeal allowed procedural ground order made giving father another opportunity heard respect competing residence application 1 appeal order made reilly j 3 august 2004 relating party childlborn 18 december 1995 appellant father attend hearing absence honour ordered child reside mother solely responsible day day long term care welfare development child order contact child father ordered father application relating contact issue listed father fulfilled certain condition required amongst thing attend upon named psychiatrist psychiatric assessment 2 matter came hearing u 27 october 2004 made order allowing appeal setting aside honour order directing matter remitted rehearing indicted would publish reason later time 3 whilst father notice appeal extremely wide ranging containing 41 ground many seem offensive unarguable wish indicate commencement reason appeal allowed strictly procedural ground intended way indicate order ultimately made honour might appropriate order made procedural issue identifying background4 appellant respondent parent eight year old daughter l father seven child two previous relationship mother one child resides philippine party met time shortly early 1995 5 father brought mother australia january 1995 early 1996 father sentenced four year imprisonment arising offence relating conduct towards previous wife also filipino lady met 1987 released parole april 1999 resumed cohabitation mother proceeding separated january 2003 much time thereafter child lived father 6 time may 2003 mother commenced relationship one g subsequently married may 2004 7 september 2003 father made allegation g sexually interfered l allegation subsequently investigated queensland police department family appear concluded early january 2004 substance disclosure child made made insistence father represent truth situation medical examination child disclosed hymen longer intact relevant state authority seemed view result behaviour g january 2004 apparently moved take child care child became distressed eventually returned father three four day 8 11 december 2003 father filed application seeking return child passport return clothing possession child mother alleged taken party separated order relating return clothing period child possession mother 9 15 january 2004 mother responded filing application sought residence child father contact logan west contact centre le two hour alternate weekend application also sought order relating provision medical school report like father child come live 10 on25 february2004 smith jr made order provided mother contact child 9 00am 6 00pm two day fortnight hand over take place logan west contact centre restrained removal child australia amongst several order made requested matter given consideration inclusion court magellan project 11 father sought review order smith jr filed application review 2 march 2004 sought stay order smith jr refused on11 march2004 directing application review earlier order listed magellan list 24 march 2004 12 matter came direction magellan list reilly j on24 march2004 honour designated matter magellan matter requested director general department community intervene proceeding asked director general prepare report allegation contained party filed material seeking report filed later than2 june2004 gave permission director general child representative appointed proceeding inspect copy file family court relating matter adjourned magellan direction hearing on9 june2004 also adjourned father review application seeking review order smith jr 9 june 2004 direction 13 appears father aggrieved failure judge deal review application approached administrative judge hearing review actually conducted jordan j 27 april 2004 order made jordan j on27 april2004 substantially identical made smith jr 25 february 2004 14 on9 june2004 matter came hearing direction reilly j father made application honour disqualify hearing matter application dismissed directed matter listed trial commencing3 august2004 15 father dissatisfied order jordan j made 27 april 2004 brought fresh application came honour on16 june2004 honour stayed operation earlier contact order providing contact take place logan west contact centre made contact order contact take place accordance wife written request time time collection take place either child school mcdonald restaurant sunnybank hill 16 on6 july2004 reilly j heard application husband increased number allocated trial day four nine trial still due commence 3 august 2004 17 on15 july2004 barry j dealt issue arising production document commissioner police department community response subpoena issued would appear transcript barry j matter referred reilly j adjourned hearing 15 july 2004 enable interested party attend make submission matter honour let known course preparing hearing read material file looked video interview child conducted police 18 honour said early hearing thought material sought protected objecting production public domain anyway regard matter contained party affidavit discussion opportunity take instruction representative director general commissioner police indicated would withdraw objection producing subpoenaed material sought order given direction would ensure material copied even though available inspection party 19 course discussion subpoenaed material honour also made reference two matter asked deal day namely question expedition series appeal father filed interlocutory ruling reilly j well application mother father restrained filing application honour indicated would consolidate appeal honour significant discussion reserved issue whether would expedite various interlocutory appeal indicated would deal vexatious litigant application honour began discus party representative material contained subpoenaed material matter 20 course discussion counsel mother indicated sought leave file rely application case affidavit support thereof seeking child reside mother honour asked copy available child representative father 21 honour made inquiry availability mother care child said appreciate making submission call submission party considerable disadvantage read commissioner police file detail read department family service file including importantly significantly scan review minute meeting extending complaint first made g august last year latest meeting file position summarise material file intend call submission first give direction endeavour far possible real sense party opportunity peruse material opportunity heard f position f relation honour mr boundy application honour yes f honour quite obvious held back ample opportunity serve process server aware affidavit honour yes f process server said came round saw indistinct bother serving stuff held back today hoping snow job done honour interested vituperative attack mr boundy interested critically referring material two government department department established protect citizen state police department department community senior officer department saying child emotional safety emotional wellbeing physical wellbeing risk sexual abuse remove father environment saying tell judge would ignore advice particularly circumstance read file basis upon making statement 22 father response indicate department family disgraced organisation honour said response regardless veracity otherwise police officer video child gynaecological examination paediatrician mater hospital child interviewed video dobbing f know 23 discussion honour said prime suspect f know look say give rest indistinct stupid know saying child would never say would totally untrue saying 24 conclusion discussion father honour heard child representative indicated seen father previous criminal history real concern safety child point time wanted ensure child safe place pending matter resolved hearing 25 honour moved admit evidence whole queensland police service file whole department community file delivered judgment ordered child immediately placed care mother father restrained making contact child order judgment subject appeal na45 2004 26 one honour order restrained father telephoning attempting telephone child number may contacted would appear immediately following order made barry j 15 july 2004 father attempted telephone school speak child conduct brought attention trial judge mother counsel afternoon 15 july 2004 honour indicated wished file application relating alleged breach supported affidavit school principal could listed hearing following week 27 application filed father dealt pursuant provision ofs 112apof thefamily law actand came hearing barry j on30 july2004 hearing applicant father convicted charge contempt matter adjourned sentencing 17 september 2004 result matter occurred relation document filed response charge barry j determined charge laid father adjourned hearing following tuesday3 augustat 2 00pm 28 time on30 julythe father filed application case sought several order including 1 urgent hearing stay application monday 2 8 04 2 order barry j 15 7 04 immediately stayed 3 order jordan j 16 6 04 reinstated 4 child l returned residence father immediately forthwith 7 trial matter set commence 3 8 04 stopped 8 new trial date set period nov 04 feb 05 appeal father full court heard 13 appeal filed 28 7 04 order justice barry expedited 29 morning of3 august2004 matter set reilly j trial called father appear course announcing appearance counsel child representative indicated somebody department family holding watching brief filed affidavit one margaret sturrock described m mcmillan magellan report honour noted presence m smith relevant department indicated could either remain gallery court come forward time wished engage honour attention said f present called proposing proceed default appearance father said familiarity matter proposing make final order child reside mother stand matter contact subject father meeting condition 30 m mcmillan said understood father likely appear 2 clock afternoon barry j contempt sentencing matter perhaps father might mistaken impression honour would proceed unless present today honour said think filed application thank bringing attention f actually filed application 30 july 2004 paragraph 7 seek trial matter set commence 30 august 2004 stopped m mcmillan see aspect going raise whether honour order fact informed afternoon honour going proceed trial whether appears go sorry honour given father unlikely perhaps proceed morning going seek honour really proceed undefended hearing child perspective clearly matter much one finalised child position secure mother care final order made strengthened view put way report prepared m sturrock current departmental position outlined paragraph 22 24 31 honour said m mcmillan wanted walk evidence m sturrock affidavit expert report indeed party 32 honour announced intended proceed matter morning father appeared day later day delivered judgment would deal problem arose 33 procedural discussion honour concerning material would relying upon marked exhibit 1 bundle document extracted department family file exhibit 2 bundle document commissioner police amongst document sought relied upon honour m mcmillan said obvious ly child representative relies affidavit m sturrick sic filed today 34 mr hodges behalf mother sought leave file affidavit mother updating circumstance result order 15 july placed child client residence sworn day fairly clear like m sturrock material served upon father 35 honour delivered judgment later morning clear judgment honour placed significant weight material contained m sturrock affidavit said 21 margaret sturrock senior practitioner department community provided affidavit filed leave today 3 august 2004 affidavit exhibit child protection report compiled dated 2 august 2004 child protection report refers three notification recorded department file extract exhibit 1 propose refer one notification one recorded mt gravatt office 2 january 2004 m sturrock set report par 6 concern l stated wanted mother take away asked l replied sometimes wake find father hand leg notifier said l disclosed waking father laying beside sometimes wake without underwear l stated wet bed never done l mentioned father drink lot according notifier l sad looking little girl messy hair dirty clothes dirty hand dirt underneath nail 22 m sturrock report refers par 12 assessment department child suffered sexual abuse identified medical examination possible deduce whether one traumatic event prolonged sexual harm involving penetration 23 department position summarised par 20 24 report set 20 consider l would high risk ongoing emotional physical sexual abuse returned father custody 21 would also consider risk ongoing emotional abuse f contact given incapacity accept authority others related inability accept arrangement secures l safety safety others contact 22 f demonstrates commitment capacity engage departmental officer ensure safety daughter l absolute disregard authority 23 view department would grave concern l safety residency granted f favour arrangement made contact f l 24 residency order made favour department would provide support l appropriate assist referral counselling considered necessary 36 honour concluded evidence child suffered sexual emotional abuse likely occurred whilst father care accordingly child reside father would unacceptable risk continuation abuse 37 already indicated allowing appeal honour order make comment whether finding appropriate evidence honour concerned manner treating appeal form rather substance 38 seems discussion father barry j later day appeared purpose relating contempt charge confusion become application filed 30 july 2004 seeking trial honour proceed barry j order stayed application issued basis according father would advised return date application sought matter dealt 2 august 2004 39 father indicated honour received notification person thought might honour associate matter would honour 2 clock afternoon 3 august discussion matter honour afternoon following exchange took place contempt charge adjourned 17 september f yes another matter honour today person sure associate name karen could well telephoned yesterday said stay application honour apologise right paragraph application say relevant consideration point time 40 f renewed application honour disqualify honour indicated would apparently looking application honour said well see example clearly like paragraph 7 trial matter said commence 3 august stopped would determination trial judge reilly j paragraph relate proceeding f say would power stop case look fact outlined affidavit 41 f asked whether court morning said m mcmillan outlined honour occurred honour pointed seem much point dealing father application honour order longer operative far wanted adjournment trial made trial judge 42 support application adjourn trial 3 august father sworn filed affidavit 30 july 2004 said required attend magistrate court 6 august 2004 one date allocated hearing required appear family court 30 july 2004 contempt charge required prepare submission affidavit 28 july 2004 presumably relation contempt charge seeking prepare appeal full court arising contempt charge said result time inspect subpoenaed document admitted evidence barry j 15 july barry j said would take week read circumstance could participate trial 3 august 2004 indicated event occurred since 15 july entirely unforeseen went air grievance 43 appears clear transcript honour aware application filed day reference made material contained affidavit discussion44 ultimately trial concerning welfare child court obliged pay consideration material hear argument proffered proceed material make order met statutory criterion laid inpart viiof thefamily law act1975

Nurhayati [2001] MRTA 858 (7 March 2001).txt

nurhayati 2001 mrta 858 7 march 2001 last updated 10 may 2001 2001 mrta 858visa applicant nurhayatiameer hasanrabiatul adaluiyyahfathur rahdirazan baidurisiti rhaizuranahmed rhulahadziereviewapplicant nurhayatitribunal migration review tribunalpresidingmember maritsa eftimioumrt file number n99 00341dima file number n98 114587date decision 7 march 2001at sydneydecision tribunal affirms decision review finding visa applicant entitled grant temporary business entry class uc visa catchword temporary business visa standard business sponsor nomination application review1 application review decision made delegate minister immigration multicultural affair detail follows visa applicant detail nurhayati name dob sex nationality 11 september 1955female indonesiadecision type visa refusalvisa class sub class temporary business entry class uc subclass 457 business long stay date visa application 21 november 1996date primary decision 21 june 1998date miro decision 28 january 1999jurisdiction standingreview applicant nurhayatidate review application 17 february 1999relationship visa applicant selfvalidity mrt applicationa within time limit yesb reviewable mrt yeslegislation visa criterion policyrelevant legislation section 65 migration act 1958 decision grant refuse grant visa part 457ofschedule 2 migration regulation 1994 unless otherwise stated applicable legislation legislation stood date visa application made division 1 4a migration regulation 1994relevant policy pam guideline relation 457 schedule 2 division 1 4aevidence2 tribunal following document t1 mrt case file n99 00341 folio 1 53 d1 dima case file n98 114587 folio 1 60 3 application review decision delegate department immigration multicultural affair dima refuse mr nurhayati visa applicant temporary business entry class uc visa visa applicant made application class uc visa 21 november 1996 included application husband ameer hasan date birth 31 july 1945 child rabiatul adaluiyyah date birth 23 august 1981 fathur rahdi date birth 17 october 1983 razan baiduri date birth 26 march 1985 siti rhaizuran 18 november 1987 ahmed rhulahadzie date birth 12 june 1990 4 visa applicant first arrived australia 2 september 1996 holder 676 visitor visa stay 2 december 1996 5 21 november 1996 visa applicant applied class uc subclass 457 visa chef sponsored pondok buyung restaurant currently holder bridging visa 6 21 june 1998 department refused grant subclass 457 visa decision affirmed miro 28 january 1999 7 application review lodged immigration review tribunal 17 february 1999 became application review migration review tribunal 1 june 1999 operation item 40 1 schedule 1 themigration legislation amendment act 1 1998 8 time lodgement visa application visa applicant also lodged business sponsorship application nomination business sponsor pondok buyung restaurant 9 21 june 1998 dima refused business sponsorship decision appears made nomination appears withdrawn nominator although withdrawal writing found dima file nominator refunded nomination fee 10 business sponsor applied miro reconsideration refusal business sponsorship refused 20 january 1999 business sponsor applied irt reconsideration business sponsorship refusal became application review migration review tribunal 11 tribunal made separate decision relation application review decision approve proposed employer business sponsor see mrt case number n99 00341 decision affirm decision approve employer business sponsor 12 visa applicant sent letter 5 december 2000 inviting visa applicant provide comment information tribunal considered would reason part reason affirming decision review particular application subclass 457 visa supported approved business sponsorship nomination visa applicant failed provide comment 13 pursuant section 360 act tribunal proceeded make decision matter without inviting visa applicant appear give evidence present argument relating issue arising relation decision review findings14 time visa application lodged class uc contained following subclass subclass 456 business short stay subclass 457 business long stay subclass 456 relevant visa cannot granted visa applicant australia visa applicant seeking visa longer 3 month using form 1066 15 subclass 457 visa obtained number ground ground visa application made sponsorship business operating australia relation labour agreement regional headquarters agreement claim made respect ground material tribunal suggest visa applicant meet ground 16 visa application made basis visa applicant would employed chef pondok buyung restaurant 17 one necessary criterion subclass 457 visa basis sponsorship business operating australia proposed employer pre qualified business sponsor standard business sponsor see subclauses 457 223 4 457 223 5 schedule 2 regulation tribunal made separate decision relation application review decision approve proposed employer business sponsor see mrt case number 99 06055 decision affirm decision approve employer business sponsor18 tribunal find visa applicant unable satisfy subclause 457 223 4 457 223 5 evidence tribunal suggested visa applicant meet criterion clause 457 223 19 accordingly application must fail conclusion20 tribunal find visa applicant proposed employer approved business sponsor required either subclause 457 223 4 subclause 457 223 5 visa applicant meet criterion subclass 456 visa criterion subclass 457 visa tribunal must affirm decision review decision21 tribunal affirms decision review finding visa applicant entitled grant temporary business entry class uc visa

The Western Australian Police Union of Workers v Commissioner of Police, Western Australian Police [2002] WAIRComm 6901 (1 November 2002).txt

western australian police union worker v commissioner police western australian police 2002 waircomm 6901 1 november 2002 last updated 7 july 2007100213945operational police staffing levelswestern australian industrial relation commissionpartieswestern australian police union workersapplicant v commissioner policerespondentcoramcommissioner p e scottpublic service arbitratordatefriday 1 november 2002file nopsac 45 2002citation 2002 wairc 06901_______________________________________________________________________________resultdirection issued_______________________________________________________________________________directionwhereas applicant sought assistance commission respect concern regarding issue safety arising say problem staffing level deployment police officer andwhereas friday 1stday november 2002 public service arbitrator convened conference purpose conciliating party andwhereas course conference party indicated discussion occurred respondent process investigating concern raised applicant view developing strategy address party scheduled meet 11 november 2002 discussion andwhereas conclusion conference arbitrator issued direction party mean reflecting arbitrator encouragement party continue discussion make genuine attempt resolve issue report back arbitrator therefore public service arbitrator pursuant power conferred theindustrial relation act 1979 hereby directs party continue process discussion consultation committed purpose genuinely attempting resolve issue police staffing level deployment party report back public service arbitrator later monday 18thday november 2002 10 30am commissioner p e scottpublic service arbitrator

BDPK and Child Support Registrar (Child support second review) [2023] AATA 2999 (19 September 2023).txt

bdpk child support registrar child support second review 2023 aata 2999 19 september 2023 last updated 20 september 2023bdpk child support registrar child support second review 2023 aata 2999 19 september 2023 division general divisionfile number 2022 8316re bdpkapplicantandchild support registrarrespondentandqfmjother partydecisiontribunal senior member j rau scdate 19 september 2023place adelaidethe decision review set aside substituted new decision respect child b existing percentage care determination bdpk revoked 26 january 2021 replaced new percentage care determination 35 applying 27 january 2021 andthe existing percentage care determination qfmj revoked 12 january 2022 replaced new percentage care determination 65 applying 13 january 2022 sgnd senior member j rau scnames used published decision pseudonym reference appearing square bracket indicate information removed decision replaced generic information identify involved individual required bysubsections 16 2ab 16 2ac thechild support registration collection act 1988 catchwordschild support percentage care change percentage care whether percentage care changed criterion determine extent parent care child decision review set aside legislationadministrative appeal tribunal act 1975 cth child support assessment act 1989 cth casespolec v staker 2011 fmcafam 959secondary materialsreasons decisionsenior member j rau sc19 september 2023introductionbackgroundbdpk qfmj parent two child child born july 2004 child b born november 2006 application concern decision regarding child b parent predominantly resided regional town relevant period child b prior 27 january 2021 pre existing percentage care 50 50 bdpk qfmj may may corresponded actual arrangement agreed position subject family court order bdpk told tribunal agree pre existing arrangement changed indicated realised change pre existing percentage care would resulted change arrangement sought qfmj would acquiesced change noted tribunal concerned occurred rather reason factor giving rise changed arrangement 27 january 2021 child b left regional town parent lived commenced boarding boarding school arranged qfmj supervising parent far school concerned told tribunal arranging payment fee assistance family described spending inheritance mother emergency contact school 1 state verbal agreement made bdpk first separated however first two year separation child eldest daughter 100 time still day regard child b care 75 time first two year bdpk together always discussed would send girl away boarding school opportunity arose separated girl accepted boarding school opportunity good take bdpk originally signed paperwork child beginning process boarding school acceptance opportunity acceptance boarding school came u child b also attend following year sent subject choice forth child b bdpk house hope would sort input girl extremely excited go experience opportunity lifetime gain education would able get back redacted regardless point fact pay support girl solely schooling living sporting doctor appointment dental appointment optician appointment uniform school social event outing transportation etc away adelaide boarding school 600kms u believe paying child support bdpk fact physically child b receive support ever girl bdpk 2 20 july 2023 qfmj stated child b staying boarding house generally staying either home town gone adelaide stay together airbnb motel family member arranged child b prior either coming home heading adelaide purchased child b school clothing sport clothing work clothing included footwear also provide child b everyday clothing footwear either adelaide port lincoln transferred money account given cash purchase clothing leisure generally child b boarding school food part fee provided breakfast lunch dinner well snack however always shop child b go back boarding house snack general supply also transfer money account purchase food free also provided many occasion uber eats us account child b staying family friend provided shopping well premade home cooked meal given money towards food bill pay child b schooling boarding fee including school uniform extracurricular need pay child b doctor appointment including medication need pay eye appointment including glass paid eye specialist appointment pay taxi expense whilst adelaide get appointment also speak regularly head boarding well child b teacher check wellbeing see support child b area may need schooling also wellbeing also speak child b regularly see anything help support arranged child b speak psychologist pay appointment also family also check child b make sure going ok provided child b many mean transportation either adelaide around adelaide following transportation flight car taxi family friend majority child b extracurricular activity organised boarding house pay fee 150 per term pay organise child b formal ticket including formal date formal dress hair makeup spray tan shoe nail something child b wish attend outside school given money paid taxi get pay child b mobile phone bill use subscription e netflix spotify stan binge disney etc b arranged many lift home town boarding school back adelaide boarding school either via family member friend flight liaise school child b need medical appointment arranged child b formal appointment hair makeup nail tan etc book child b hair appointment eye appointment etcarranged paid child b driving lesson including taxi c pay flight adelaide taxi fare appointment adelaide provide child b shopping e sanitary item snack personal need pay help arrange doctor appointment including medication eye appointment including glassesd pay child b schooling boarding school uniform schoolbook medication glass clothing doctor eye appointment transport food shopping general supply provide child b money use discretion pay use child b use uber eats pay child b mobile phone bill paid child b driving lesson give money towards fuel e child b work school holiday redacted hotel motel well employer make extra spending money generally ask workplace work child b behalf prior coming home f child b work school holiday earn extra spending money top child b bank account needed supply need e g food clothing appointment etc g would like point two daughter support equally one 3 response bdpk say would also like point party claim contact school regarding child b yet another lie provide evidence school contact regarding child b education also receive regular email school notifying child b lack submission assignment attendance indicating happy likely achieve anything also find extremely disturbing another parent would use living parent emergency contact child prof total disrespectful bulling behaviour try turn child think care want emergency contact 4 bdpk told tribunal could afford contribute fee however incur various cost general nature behalf private health cover expense time care daughter statement filed tribunal 13 june 2023 5 say provided daughter child b weekly fund duration separation centrelink declared money count contribution care paid directly party also provided child b extra fund whenever requested taken shopping clothing regular occasion well providing mean transportation every school holiday since obtained driver licence paid 100 child b private health 100 orthodontics period well statement filed 28 july 2023 state child b father provided continual open honest communication provided security able speak freely want feel situation without fear upsetting personal agenda provided child b constant 50 weekly transfer bank account help personal expense since separated mother whenever child b requested extra fund maintain living provided also maintained private health cover bupa includes extra daughter every time party take daughter medical appointment including purchase new glass optometrist party personally receives rebate directly insurance paid majority expense incurred party paid daughter child b orthodontic expense required brace expense mostly covered private health also expense dropped without notice consent getting brace child b turned 16 paid obtain motorbike licence purchased kawasaki motorbike use independent travel old enough p drive car maintained registration insurance vehicle since child b turned 17 supplied vehicle purchased paid associated cost vehicle including filling diesel providing child b cash whenever away school child b passion dirt circuit purchased car drive whenever able come home race meet well safety apparel licencing required event taught race learned lot skill experience pay flight come back eyre peninsula event well maintenance associated cost hobby whenever daughter take clothes shopping anything need making sure essential comfortable living purchased work wear steel cap boot fxd work pant child b provide child b accommodation every opportunity spend time together often take meal social outing go carting occasional holiday july 2021 took daughter fowler bay see whale last year took child b 4wd adventure park communicated parent regarding child b friend stay paid flight living expense stay over school friendsi found ability fair distribution care daughter constantly obstructed party numerous occasion short term holiday work party organises child b every holiday ensures cannot much access shift often limited time financial advantage daughter minute offered provide better short term option farm work shearing related work interest child b love work animal would provide much greater income source child b indicated party already made arrangement allowed changed obstruction also happened child b home told allowed see pay trip home school organised child b visit vet clinic get information career path veterinary vet nursing expressed interest met negativity obstruction party allowing time highlighting alienating decision making parent child b life party happened many occasion disagree accuracy calendar previously proven inaccurate evidence party communication regarding financial support party treated like refused actually never contacted regarding helping raising daughter financially ever child asked financial support supplied money casual employed time taken available spend time child b lost income last 2 ½ year would conservatively excess 10 week lost wage mentioned extra cost taxi fare uber school clothing uniform formal cost like directly related child b going away school direct breach 50 50 care agreement party broken agree done without consent known child support going allow party back date care party intension would never allowed child b go away school retain agreed 50 50 care unfortunately get luxury turning back time back dating decision lastly find concerning party choice word conversation child support representative week first hearing regarding current care percentage questioned party could possibly afford schooling wage alone suggested receiving financial support advised called future inheritance nothing could exact word party used lead believe party advised screw recorded conversation wish heard make sure party advised coached even suggested say regarding matter case find extremely discriminative behaviour child support agency 6 27 january 2021 care arrangement changed child b longer spent 50 time bdpk qfmj evidence suggests mostly school boarder mentioned evidence suggests substantially paid qfmj relative bdpk contributed cost school organised additional tuition required various recreational activity one would expect person age child b also spent non school time friend extended family mother mainly school holiday father relation period qfmj say would like point daughter child child b staying sister due work commitment working redacted grain silo employer 148kms redacted far travel every day stayed sister family live redacted km redacted time provided sister grocery premade meal money also used car duration child b borrowed car father acknowledge would three night child b would stayed friend house home school holiday 2021 2022 however addressed calendar unsure day would best child b generally friend stay u live town friend reside farm 40km town relation period bdpk say would also like point time spent party family considered care supplied evidence provided food money child time child support recognise financial contribution directly daughter person whilst daughter child b cannot considered care 7 beyond doubt pre existing arrangement disturbed child b attending boarding school 13 january 2022 qfmj contacted child support registrar csr advise change occurred since 27 january 2021 8 notification given 28 day change actually occurred csr record dated 25 january 2022 record bdpk maintained shared care continuing 9 continued pay private health cover child b 10 23 february 2022 csr wrote bdpk seeking information regarding change care 11 24 april 2022 csr decided revoke pre existing percentage care determination detail determination set following term letter csr bdpk recently received information care percentage child b used information update record told 13 january 2022 care child b changed 27 january 2021 record show 0 care child b qfmj 100 care child b 27 janaury 2021 told care change 28 day happened must use information assessment different way use decreased care percentage date care changed increased care percentage date told mean care percentage applied 27 january 2021 qfmj care percentage applied 13 january 2022 care change please tell u within 28 day use information date care changed mean youyour child support assessment changed 27 january 2021 17 february 2021 ongoing child support amount 244 50 per month 18 february 2021 19 may 2021 ongoing child support amount 982 50 per month 20 may 2021 30 june 2021 ongoing child support amount 244 50 per month 1 july 2021 24 august 2021 ongoing child support amount 774 83 per month 25 august 2021 31 august 2021 ongoing child support amount 197 00 per month 1 september 2021 12 january 2022 ongoing child support amount 197 17 per month 13 january 2022 30 june 2022 ongoing child support amount 179 17 per month 1 july 2022 25 july 2022 ongoing child support 429 83 per month 26 july 2022 ongoing child support amount 340 42 per month 12 another letter date bdpk advised consequently overpaid 335 34 13 26 april 2022 bdpk sought internal review primary decision csr record date record bdpk objection follows bdpk advised always verbal agreement care 50 50 bdpk explained qfmj sent child way mean bdpk physically lost 50 50 time would child b expense boarding school well outweighs qfmj income child b bdpk week week child b sent away boarding school bdpk objected ground try child b often keep care 50 50 child b home exit weekend school holiday child b first exit weekend 18 19 20 february 2022 overnight bdpk care child b next exit week 11 12 13 march 2022 overnight day 14 march 2020 bdpk went adelaide picked child b stayed hotel weekend child b bdpk care school holiday 18 24 april 2020 overnight day 25 april 2020 returning child b qfmj care bdpk try keep 50 50 care explained qfmj verbally agreed 50 50 always 50 50 day separated 14 26 may 2022 internal review confirmed primary decision 15 27 may 2022 bdpk lodged application review aat 16 16 september 2022 aat set aside primary decision substituted new decision aat 1 decision respect child b existing percentage care determination 50 bdpk revoked 26 january 2021 replaced new percentage care determination 10 applying 27 january 2021 andthe existing percentage care determination 50 qfmj revoked 12 january 2022 replaced new percentage care determination 90 applying 13 january 2022 17 11 october 2022 bdpk sought review aat aat 1 decision 18 legislationdivision 4 ofpart 5of thechild support assessment act 1989 cth act address percentage care used decide person cost percentage person cost percentage turn affect assessment amount child support person required pay person care may worked number night child likely care person care period 19 care period period time registrar considers appropriate regard circumstance 20 section 49of act applies one parent carer care child undersection 49of act application made parent assessed respect cost child pattern care care percentage must 0 determination parent carer percentage care made unders 50of act revoked parent pattern care section 49 3 act requires another percentage care determination made parent care 0 care care child child shared similar process required unders 50of act parent care reduced care take action regain care child interim period two care determination may apply circumstance existing determination percentage care revoked set subdivision c ofpart 4of act determination person percentage caremustbe revoked le regular care 54gof act regular care least 14 21 determination person percentage care alsomustbe revoked change person cost percentage result change care 54fof act cost percentage set in 55cof act ul none list style none cost percentagesitemcolumn 1percentage carecolumn 2cost percentage10 le 14 nil214 le 35 24 335 le 48 25 plus 2 percentage point 35 448 52 50 5more 52 65 51 plus 2 percentage point 53 6more 65 86 76 7more 86 100 100 determination percentage caremaybe revoked circumstance 54hof act change care day determination person existing percentage care revoked first day care child ceased existing determination 22 determination percentage care revoked new determination must made 23 section 54bof act set day new determination percentage care applies andsection 54b act state determination made undersections 49ors 50of applies application day revoked application day defined insection 54b 2 act previous care determination applied applies end day care change 24 considerationthis matter primarily legal dispute bdpk qfmj calculation correct percentage care many relevant fact seriously dispute appropriate treatment time actually spent either parent particular significance bdpk qfmj gave oral evidence two occasion telephone first 30 may 2023 last occasion 3 august 2023 substantial material tendered respondent party constitute admitted exhibit numbered 1 13 evidence taken consideration regard evidence ass relevant period 27 january 2021 26 january 2022 12 month period corresponding child b commencement boarding school section 54aof act requires care worked using number night parent care generally calculated 12 month period however may always reflect care parent child particularly child live either parent inpolec v staker 25 child living separately parent pursue work experience apprenticeship federal magistrate hughes stated following factor relevant extent person meet need child providing child accommodation clothing food child care education health care emotional support supervision transport extra curricular activity extent person make arrangement others meet need child extent person pay cost meeting need child extent person otherwise provide financial support child extent child provide need need met another source extent child financially independent financially supported another source 26 tribunal alerted party topolec v stakerand directed produce evidence submission might consider relevant evaluative exercise set therein complied constructively direction 27 evidence taken whole demonstrates parent continued offer parental financial support extent respective mean response call made upon time time child b example variously assisted transport casual employment significant absence boarding school course add level complexity rather spontaneous ongoing arrangement case arithmetic calculation based simply upon night spent parent adequate capture true substance pattern care instance evidence suggests relevant period child b spent fewer night bdpk qfmj time however spent others boarding school substantial cost boarder met neither bdpk qfmj qfmj however facilitated child b schooling assumed primary responsibility liaison school provided bulk ongoing support medical appointment personal shopping bdpk also provided financial parental support required provided pocket money private medical insurance spent 6000 orthodontic treatment child b provided vehicle find evidence regard consideration set inpolec v stakerthe majority child b care provided qfmj bdpk however also made significant equal contribution tribunal find pattern care child b care period 35 bdpk 65 qfmj care 35 bdpk 65 qfmj correspond pre existing percentage care date qfmj notification 13 january 2022 existing percentage care reflect actual care 26 january 2021 revoked unders 54fof act tribunal determines percentage care bdpk 35 qfmj 65 care period change care notified qfmj 13 january 2022 28 day date tribunal found change occurred 27 january 2021 revocation pre existing percentage care qfmj take effect day notification namely 12 january 2022 revocation pre existing percentage care bdpk take effect day change care namely 26 january 2021 care determination revoked new percentage care must determined 28 decisionthe decision review set aside substituted new decision respect child b existing percentage care determination bdpk revoked 26 january 2021 replaced new percentage care determination 35 applying 27 january 2021 andthe existing percentage care determination qfmj revoked 12 january 2022 replaced new percentage care determination 65 applying 13 january 2022 certify preceding fifty six 56 paragraph true copy reason decision senior member j rau sc sgnd associatedated 19 09 2023representative applicant self representedrepresentative respondent m ada wongmills oakley lawyersrepresentative party self representedannexure list exhibitsexhibit lodged bydocument1respondentstatement fact issue contention dated 24 april 20232respondentt document dated 5 december 20223applicantbundle document dated 7 march 20234other partyletter reply applicant application undated filed 31 march 20235other partybundle document dated 11 may 20236other partypost hearing submission filed 6 june 20237applicantpost hearing submission attachment filed 13 june 20238other partyresponse applicant submission dated 13 june 2023 filed 16 june 20239applicantapplicant submission filed 19 june 202310respondentpost hearing submission filed 28 june 202311other partybundle document filed 20 july 202312applicantbundle document filed 20 july 202313applicantapplicant additional document filed 28 july 2023 1 document t10 p 47 t26 p 77 2 ibid t29 p 82 3 exhibit 12 1 letter party senior member j rau sc party response direction 4 exhibit 7 5 ibid 6 exhibit 13 letter applicant senior member j rau 7 ibid 8 ibid t5 p 40 9 ibid t8 pp 44 45 10 applicant document p 2 11 ibid t7 pp 42 43 12 ibid t17 p 62 13 ibid t15 p 58 14 ibid t20 pp 68 69 15 ibid t24 p 75 t26 pp 77 79 16 ibid t28 p 81 17 ibid t2 p 7 18 ibid t2 p 7 15 19 54aof act 20 s 49 b ii and50 b ii act 21 5of act 22 ibid 23 s 49and50of act 24 s 54f 2 b s54g 2 b act 25 2011 fmcafam 959 26 ibid 56 27 see exhibit 11 bundle document filed 11 may 2023 exhibit 12 bundle document filed 20 july 2023 exhibit 13 applicant additional document filed 28 july 2023 28 50 2 act

Construction, Forestry, Mining and Energy Union [2016] FWCA 7957 (4 November 2016).txt

construction forestry mining energy union 2016 fwca 7957 4 november 2016 2016 fwca 7957fair work commissiondecisionfair work act 2009s 185 enterprise agreementconstruction forestry mining energy union ag2016 6696 mariquino unit trust trustee mariquino pty ltd cfmeu victorian construction general division enterprise agreement 2016 2018building metal civil construction industriescommissioner gregorymelbourne 4 november 2016application approval mariquino unit trust trustee mariquino pty ltd cfmeu victorian construction general division enterprise agreement 2016 2018 1 application made approval enterprise agreement known themariquino unit trust trustee mariquino pty ltd cfmeu victorian construction general division enterprise agreement 2016 2018 agreement application made pursuant tos 185of thefair work act 2009 act made construction forestry mining energy union agreement single enterprise agreement 2 satisfied requirement ofss 186 187and188as relevant application approval met 3 construction forestry mining energy union bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 note agreement cover organisation 4 agreement approved accordance withs 54of act operate 11 november 2016 nominal expiry date agreement 30 june 2018 commissionerprinted authority commonwealth government printer price code ae422029pr587201 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

Panmal Constructions Pty Limited (Acn 001 305 639) v Warringah Formwork Pty Limited (Acn 002 797 417) [2004] NSWSC 204 (26 March 2004).txt

panmal construction pty limited acn 001 305 639 v warringah formwork pty limited acn 002 797 417 2004 nswsc 204 26 march 2004 last updated 8 april 2004new south wale supreme courtcitation panmal construction pty limited acn 001 305 639 v warringah formwork pty limited acn 002 797 417 2004 nswsc 204current jurisdiction equity divisiontechnology construction listfile number 55050 03hearing date 22 03 04judgment date 26 03 2004parties panmal construction pty limited acn 001 305 639 plaintiff warringah formwork pty limited acn 002 797 417 defendant judgment einstein jlower court jurisdiction applicablelower court file number applicablelower court judicial officer applicablecounsel mr pwj gray sc mr rc titterton plaintiff mr ag jamieson defendant solicitor parry carroll plaintiff wood marshall williams defendant catchword commercial arbitrationleave appeal cost awardprinciplesacts cited commercial arbitration act 1984land environment court act 1979 supreme court act 1970decision leave appeal granted appeal allowed judgment supreme courtof new south walesequity divisiontechnology construction listeinstein jfriday 26 march 200455050 03 panmal construction pty limited v warringah formwork pty limitedjudgmentthe proceedingsthe application1 court application leave appeal pursuant tos 38 4 b thecommercial arbitration act1984

N99_31032 [2000] RRTA 687 (27 June 2000).txt

n99 31032 2000 rrta 687 27 june 2000 refugee review tribunaldecision reason decisionrrt reference n99 31032country reference people republic china prc tribunal member w berkleydate decision made 27 june 2000place sydneydecision tribunal affirms decision grant protection visa backgroundthe applicant citizen people republic china prc lodged application protection class az visa department immigration multicultural affair themigration act 1958 act delegate minister immigration multicultural affair refused grant protection visa applicant applied review decision legislationunders 65 1 act visa may granted decision maker satisfied prescribed criterion visa satisfied criterion grant protection class az visa set in 36of act inpart 866of schedule 2 migration regulation force immediately 20 october 1999 subsection 36 2 act provides criterion protection visa applicant visa non citizen australia australia protection obligation refugee convention amended refugee protocol refugee convention refugee protocol defined mean 1951 convention relating status refugee 1967 protocol relating status refugee respectively 5 1 act australia party refugee convention refugee protocol generally speaking protection obligation people refugee defined refugee conventionarticle 1a 2 convention defines refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return high court considered definition number case notablychan yee kin v minister immigration ethnic affair 1989 hca 62 1989 169 clr 379 applicant anor v minister immigration ethnic affair anor 1997 190 clr 225 andminister immigration ethnic affair v guo anor 1997 191 clr 559 inguo case court observed definition contains four key element first applicant must outside country element issue present matter second applicant must fear persecution every threat harm interference person right convention reason constitutes persecuted inchan casemason cj referred persecution requiring serious punishment penalty significant detriment disadvantage case mchugh j said notion persecution involves selective harassment appropriate case may include single act oppression serious violation human right measure disregard human dignity persecution may directed person individual member group persecution must official quality sense official officially tolerated uncontrollable authority country nationality persecution implies element motivation part persecute infliction harm people persecuted something perceived attributed persecutor third persecution applicant fear must one reason enumerated convention definition race religion nationality membership particular social group political opinion phrase reason serf identify motivation infliction persecution fourth applicant fear persecution convention reason must well founded fear add objective requirement requirement applicant must fact hold fear person well founded fear persecution convention genuine fear founded upon real chance persecution convention stipulated reason fear well founded real substantial basis merely assumed mere speculation real chance one remote insubstantial far fetched possibility person well founded fear persecution even though possibility persecution occurring well 50 per cent addition applicant must unable unwilling fear avail protection country country nationality applicant stateless must unable unwilling fear return country former habitual residence whenever protection applicant country available ground based well founded fear refusing person concerned need international protection refugee whether applicant person australia protection obligation assessed upon fact exist decision made requires consideration matter relation reasonably foreseeable future claim evidencethe tribunal department file includes applicant protection visa application written submission support application tribunal also written submission support application review applicant gave oral evidence tribunal applicant married woman applicant married australia late 1990s husband australian citizen applicant young child australian citizen applicant speaks read writes mandarin little english applicant parent sibling continue reside prc remains contact via telephone call applicant prc passport issued china mid 1990s valid year applicant previously made application another class visa australia applicant studied particular discipline university upon graduation worked college professional field mid 1990s obtained employment government department similar role remained position number month applicant obtained part time employment organisation professional field waited outcome australian visa application applicant came australia shortly applicant told tribunal came australia study course number month possibility extension period time intended return prc completion study applicant explained course recognised opportunity company business australia company asked remain australia explore opportunity applicant claim prior coming australia registered household registration committee registered single living parent leaving australia applicant parent notified committee living australia consequently name removed household registration book following year applicant married australian citizen born taiwan still citizen taiwan applicant husband family still live taiwan applicant claim sympathises people taiwan claim believe independence movement china right dominate take back taiwan belief taiwan independent china applicant husband remained contact family taiwan applicant claim several argument father family member marriage political view opinion claim father family member communist party claim family oppose marriage husband taiwan tribunal note however time applicant made initial application refugee status australia mother visiting australia applicant told tribunal mother accepts marriage father applicant fear returning prc returning young australian citizen child concerned confront household registration committee arrival back prc claim question surely asked nationality father child fear discriminated government official member community child father taiwanese told tribunal fear prc government may think spy taiwan fear chinese government afford protection hostility break prc taiwan belief real likelihood hostility future claim husband read article theaustralian chinese dailyabout prc government opposition policy taiwanese president li deng hui china threat use force applicant told tribunal joined organisation country australia joined spouse claim group raised money people taiwan tribunal asked applicant whether organisation social group political group said know tribunal asked applicant whether purpose organisation enable taiwanese people australia get together socialise talk common interest said think tribunal suggested applicant organisation really political organisation said discussion independence know tribunal asked applicant role organisation said attended discussion activity involved charity fund raising activity following earthquake taiwan said something election tribunal asked election said joined discussion future taiwan following election said opinion prc would wrong using violence taiwan applicant claim father told return prc belief run risk suffering ill treatment marriage husband belief would seen community government official sympathy political policy taiwan applicant told tribunal relative went taiwan late 1940s applicant father chinese army contact relative taiwan nevertheless investigated possible link applicant mother pregnant family problem time applicant father marriage taiwanese man applicant told tribunal mid 1990s mother helped colleague promote taiwanese company successful later colleague went prison one know beaten mental problem released applicant still know man went prison tribunal suggested applicant perhaps man committed crime imprisoned applicant could released tribunal suggested applicant released could considered continuing interest authority applicant told tribunal fear able obtain household registration child upon return prc tribunal put independent information applicant set household registration prc tribunal asked applicant whether contacted chinese authority inquire obtaining registration child birth said husband want applicant told tribunal automatic right residency taiwan thought child could obtain taiwanese citizenship think could applicant husband currently family likely continue year applicant claim one australia could look child return china would take daughter written submission made tribunal applicant adviser tribunal hearing adviser submitted tension prc taiwan escalated since recent election taiwan submitted trade embargo placed china taiwan adviser submitted chance hostility may erupt prc taiwan near future applicant may suffer persecution political opinion applicant adviser supplied independent information support submission independent informationthe following independent information supplied dfat relation chinese past association kmt regime taiwan department foreign affair trade country profile use refugee determination people republic china 3 5 2 kuomintang kmt 3 5 2 1 although china still opposes kmt regime taiwan war ended 43 year ago 1949 relationship taiwan prc relaxed recent year taiwanese tourist visit china great deal taiwanese investment china investment growing parent applicant may victimised past link kmt case applicant able receive education employment able leave country evidence ostracised bj44445 7 12 90 3 5 2 2 9 million kmt member prc 1949 many whose family suffered association aware individual punished recent year family pre 1949 kmt background bj48535 19 11 91 tribunal note following independent information current level tension prc taiwan since march 2000 presidential election taiwan taiwan despite danger prospect favourable reuters business briefing sourced fromasia intelligence wire political risk service country report 05 2000 23 may 2000 cx42235 incoming administration president elect chen shui bian set enjoy period political stability cross strait trouble china certainly worrisome remained short crisis despite provocative rhetoric side leader government restrained realizing harm serious conflict would produce moreover kuomintang kmt ousted presidency divided disinclined cause undue trouble president slated receive two third portfolio chen cabinet export market liberalized response requirement entry wto softening stance independence president elect chen promised restore direct shipping link island mainland followed direct air link following information deal household registration china household registration annex vi fromreport second australian human right delegation china 8 20 november 1992 department foreign affair trade cx2662 household registration hukou nature function household registration1 household registration national system officially established 1958 system first used combat problem blind movement rural small town population larger city large number internal directive well practice household registration booklet booklet issued household containing personal data member household including date place birth nationality marital status educational level professional work unit etc effectively becomes passport various kind state welfare including education employment 1 1989 identity card system finally implemented throughout country household registration booklet also served formal identity card law governing household registration2 principal law governing household registration 1958 prc regulation concerning household registration many internal policy directive also issued various ministry prc dealing different aspect household registration implementation regulation internal directive varies greatly time time place place significant extent therefore effect household registration upon citizen depend largely local practice rather national law regulation administration household registration4 household registration administered household registration police sub division local police although household registration police assigned specialised task carry registration work also involved policing task maintenance public order prevention theft criminal investigation since sub division within ordinary police force household registration police may moved within police station bureau different non household registration position function consequence registration6 since household registration system performs important function resident permit access state welfare basis issue identity card person without household registration booklet effectively becomes non person many legal practical purpose person hold household registration booklet black resident term right reside place china effectively barred participating political activity including election serving armed force employment relaxation use household registration connection employment person may able take position private enterprise another city without bringing household registration booklet also person appointed state enterprise another city release household registration refused without strong proper reason person may ask bureau labour city recruiting enterprise help help increasingly proved effective however government organ allowed appoint person household registration booklet whose household registration transferable ie current employer refuse release household registration booklet petty tyranny civilian organisation university enterprise individual seeking change economic improvement apparently mean uncommon ii education enrolment school college university requires production household registration booklet establish formal residence individual iii access state welfare resident without household registration great difficulty arranging housing taking allotted grain ration social welfare benefit although rationing certain traditional good product grain cotton material largely ended many part china future need example crop failure could see system restored iv effect many purpose household registration still informal passport chinese citizen instance every intending couple must able produce household registration booklet marriage registration authority marriage certificate issued cancellation household registration7 since original purpose household registration monitor control whereabouts resident cancellation household registration envisaged 1958 regulation 8 household registration became interlinked social welfare social aspect cancellation household registration developed practice administrative regulation policy directive 9 following principal reason cancellation household registration person travelling overseas resident travel overseas settlement household registration cancelled local police station exit permit issued household registration must restored upon return overseas restoration household registration8 generally citizen returning prc appear great difficulty household registration restored however departed china illegally situation different first people often valid identity card passport delay even denial household registration occurs time time recently chinese national returned china application refugee status rejected australia several month repatriation wrote chinese student organisation australia claiming unable household registration restored therefore unable obtain identity card obtain employment tribunal note following information entry exit procedure china effect household registration regulation concerning implementation law exit entry prc citizen promulgated 15 07 1994 cx13388 article 7after receiving visa entry permit designated country citizen residing country satisfy household registration procedure leaving country leaving settlement go local public security bureau household registration office cancel household registration leaving temporarily arrange temporary exit household registration upon presentation passport citizen resume normal household registration normal residing area returning country article 12chinese citizen settled overseas coming back settlement employment report local public security bureau arrange regular household registration presenting return settlement certificate employment certificate recognised department labour personnel china done within 30 day arriving destination article 13chinese citizen settled overseas coming back country temporarily arrange temporary registration according household registration management regulation temporary resident living enterprise business unit organisation community unit hotel restaurant hostel guest house school fill temporary resident registration form temporary resident living relative report personally send relative agent local public security station household registration office arrange temporary registration done within 24 hour 72 hour rural area arrival following dfat information talk woman child wedlock implication household registration department foreign affair trade country profile use refugee determination people republic china 3 6 15 15 single mother subject legal administrative penalty illegitimate child normal access household registration social welfare including education medical service although woman give birth child wedlock would probably object adverse comment family community would adverse consequence government support woman request accepting illegitimate child child village applicant wanting passport illegitimate child get one explain get visa without passport australian embassy beijing 30 11 93 following dfat information discus consequence faced chinese national child outside birth control plan abroad dfat country information report cir 308 98 returnees child abroad 4 august 1998 cx31344 following embassy translation relevant circular quote translation circular issued state family planning commission state education commission issue birth outside plan chinese people studying abroad number 272 1989 18 nov 1989 addressed family planning committee education committee tertiary education bureau province autonomous region municipality directly central government recent year various department asking deal issue birth outside plan chinese people studying abroad research reached consensus follows present china many people studying abroad 80 000 person whole china small number gave birth excess plan difficult control done foreign country time sensitive issue people even ask called political asylum pretext would punished given birth excess plan return china america person ulterior motif also made use issue attack china press creating adverse impact order resolve issue approval state council regulation specifically prepared state education commission relevant department send people abroad study publicise family planning policy educate student abide state policy regulation even abroad give birth excess plan give birth excess plan initiative provide explanation chinese embassy consulate register case embassy consulate ii people given birth excess plan return china allowed obtain household registration child presenting certificate issued embassy consulate birth certificate issued country birth kind birth need counted purpose work unit birth quota iii people given birth excess plan return china work unit accordance certificate issued embassy consulate must punish impose fine finding reasonsthe applicant essentially claim two thing firstly child able obtain family registration upon return china may suffer various consequence result secondly married taiwanese man taiwanese link may suffer harm reason imputed political opinion return china particularly hostility prc taiwan escalate future relation applicant fear unable obtain household registration child tribunal satisfied claim cause applicant well founded fear persecution china convention reason relation applicant independent information set state clearly person travel overseas settlement household registration cancelled initially applicant intended travel australia temporarily household registration cancelled however decided remain australia indefinitely parent informed authority household registration subsequently cancelled appears perfectly normal procedure suspicious way see household registration annex vi fromreport second australian human right delegation china 8 20 november 1992 department foreign affair trade cx2662 regulation concerning implementation law exit entry prc citizen promulgated 15 07 1994 cx13388 generally citizen returning prc appear significant difficulty household registration restored household registration annex vi fromreport second australian human right delegation china 8 20 november 1992 department foreign affair trade cx2662 procedure restoration household registration upon return overseas set clearly regulation regulation concerning implementation law exit entry prc citizen promulgated 15 07 1994 cx13388 tribunal satisfied therefore applicant difficulty amounting serious punishment penalty significant detriment disadvantage household registration restored return prc tribunal therefore satisfied applicant well founded fear persecution china relation claim household registration relation applicant child obtaining household registration tribunal satisfied cause applicant well founded fear persecution prc independent information tribunal indicates child born single mother difficulty obtaining household registration child born outside birth control plan parent residing outside prc time birth procedure place prc enable registration child born overseas involves presentation certificate issued embassy consulate birth certificate issued country birth see department foreign affair trade country profile use refugee determination people republic china dfat country information report cir 308 98 returnees child abroad 4 august 1998 cx31344 although applicant child born wedlock violate birth control plan tribunal find independent information cited indicative procedure place deal situation similar applicant child placed tribunal satisfied basis evidence applicant would able obtain household registration prc child tribunal therefore satisfied applicant well founded fear persecution prc relation difficulty perceives obtaining child household registration prc applicant also claim seek obtain household registration child question asked father child applicant claim may lead authority discovering applicant connection taiwan may suffer discrimination result applicant adviser submitted tension aroused prc taiwan since march 2000 election risk applicant may safe prc especially hostility break future prc taiwan applicant also claim risk participated activity association australia tribunal note applicant child birth certificate show father child born taiwan clear therefore applicant marriage taiwanese man disclosed chinese authority child return china however evidence tribunal satisfies cause applicant well founded fear persecution china applicant link taiwan marry taiwanese man taken australian citizenship also participated social way organisation australia applicant unable tell tribunal whether organisation australia political social organisation participation involvement charity event raise money earthquake victim taiwan attend discussion applicant claim sometimes discussion within organisation turned independence issue taiwan relationship prc would normal topic conversation among taiwanese people applicant never involved political activity ever organisational role within organisation australia simple basic political opinion relation taiwan tribunal unable satisfied applicant involvement organisation australia significant enough warrant attention drawn towards prc authority likewise applicant marriage taiwanese man could viewed prc authority tribunal opinion anything personal relationship tribunal satisfied political opinion could imputed applicant due marriage strengthened fact applicant met husband australia never taiwan husband taken australian citizenship could viewed denunciation taiwan applicant never involvement taiwanese issue except marriage connection taiwan therefore quite tenuous tribunal satisfied political opinion would imputed applicant result marriage taiwanese man child man involved social activity organisation australia introduced husband applicant political involvement could lead imputed political opinion could cause well founded fear persecution prc convention reason applicant fear hostility may erupt future taiwan prc especially since election chen shui bian president taiwan march 2000 purely speculative evidence tribunal indicates tension taiwan prc severe period since 1949 recent report suggest strong rhetoric initially spoken prc taiwanese leader following march 2000 election taiwan chen shui bian government taiwan set enjoy period stability particularly since chen softened approach independence promised restore direct shipping link island mainland followed direct air link side appear realise seriousness risk armed conflict would bring particularly set sight joining world trade organisation see instance taiwan despite danger prospect favourable reuters business briefing sourced fromasia intelligence wire political risk service country report 05 2000 23 may 2000 cx42235 tribunal satisfied real chance armed conflict erupt prc taiwan reasonably foreseeable future tribunal even le satisfied applicant well founded fear persecution prc reasonably foreseeable future result taiwanese connection hostility erupt prc taiwan tribunal satisfied happen case applicant claim family old taiwanese connection could cause difficulty prc return claim relative went taiwan many year father questioned taiwanese link applicant born independent information tribunal state quite clearly although china still opposes taiwanese government war ended many year ago 1949 relationship taiwan prc relaxed recent year dfat advise parent applicant may victimised past link kmt case applicant able receive education employment able leave country evidence ostracised dfat aware individual punished recent year family pre 1949 kmt background department foreign affair trade country profile use refugee determination people republic china tribunal note applicant received excellent education worked responsible position china able legally depart china study australia support employer light independent evidence tribunal applicant personal circumstance tribunal unable satisfied family past link kmt taiwan cause well founded fear persecution prc convention reason reasonably foreseeable future applicant also claim mother worked successful exercise taiwanese company prc one fellow worker imprisoned reason unknown later released applicant scant knowledge circumstance man arrest incarceration along fact applicant family suffered consequence result man problem cause tribunal find applicant linked way man problem well founded fear persecution china result problem tribunal examined applicant claim individually cumulatively satisfied profile would cause political opinion imputed difficulty amounting serious punishment penalty significant detriment disadvantage establishing life china child tribunal satisfied applicant well founded fear persecution china convention reason applicant concern return china australian citizen child leaving behind husband largely humanitarian matter however tribunal role limited determining whether applicant satisfies criterion grant protection visa consideration circumstance humanitarian ground matter solely within minister discretion conclusionhaving considered evidence whole tribunal satisfied applicant person australia protection obligation refugee convention amended refugee protocol therefore applicant satisfy criterion set 36 2 act protection visa decisionthe tribunal affirms decision grant protection visa

Dib v Canterbury-Bankstown Council (No 2) [2021] NSWLEC 1591 (14 October 2021).txt

dib v canterbury bankstown council 2 2021 nswlec 1591 14 october 2021 last updated 14 october 2021land environment courtnew south walescase name dib v canterbury bankstown council 2 medium neutral citation 2021 nswlec 1591hearing date 8 9 july 2021date order 14 october 2021decision date 14 october 2021jurisdiction class 1before pullinger acdecision court order 1 appeal upheld 2 consent granted development application da 845 2020 amended demolition existing structure construction 20 room boarding house basement parking 82 84 lancaster avenue punchbowl subject condition set annexure 3 exhibit returned except 1 2 catchword development application boarding house whether number room development standard cl 4 6 written request local character cl 4 6 written request orderslegislation cited environmental planning assessment regulation 2000 cl 55land environment court act 1979 39cases cited dib v canterbury bankstown council 2021 nswlec 1553category principal judgmentparties william dib applicant canterbury bankstown council respondent representation counsel pickle applicant berveling respondent solicitor conomos legal applicant canterbury bankstown council respondent file number 2021 19872publication restriction nojudgment1 commissioner 22 september 2021 handed reason class 1 appealdib v canterbury bankstown council 2021 nswlec 1553 principal judgment indicated upon satisfaction certain direction would give consideration making final order 2 principal judgment applicant directed prepare final architectural drawing based revision e plan tendered exhibit k amended reflect reason set principal judgment 3 similarly respondent directed prepare corresponding set condition consent reflect reason set principal judgment 4 amended drawing filed applicant 7 october 2021 5 condition consent filed respondent 29 september 2021 6 satisfied amended plan condition consent accord principal judgment make following order thereby dispose matter 7 accordingly court note 1 court unders 39 2 theland environment court act 1979 exercising function canterbury bankstown council relevant consent authority pursuant cl 55 theenvironmental planning assessment regulation 2000 agrees applicant amending development application da 845 2020 reflect architectural plan filed court 7 october 2021 2 applicant uploaded amended development application nsw planning portal 30 september 2021 orders8 court order 1 appeal upheld 2 consent granted development application da 845 2020 amended demolition existing structure construction 20 room boarding house basement parking 82 84 lancaster avenue punchbowl subject condition set annexure 3 exhibit returned except 1 2 pullingeracting commissioner courtannexure 301836 pdf

Border Lifting and Safety Pty Ltd v Russell and Russell (Costs) [2023] VCC 569 (17 April 2023).txt

border lifting safety pty ltd v russell russell cost 2023 vcc 569 17 april 2023 last updated 24 april 2023in county court victoriaat melbournecommercial divisionrevisednot restrictedsuitable publicationcase ci 21 00195border lifting safety pty ltd acn 057 485 542 trading border lifting safetyplaintiffandjames russellfirst defendantandsecond defendanttania russell judge honour judge burchellwhere held melbournedate hearing paper written submission dated 21 march 2023 11 april 2023date ruling 18 april 2023case may cited border lifting safety pty ltd russell russell cost medium neutral citation 2023 vcc 569ruling subject costscatchwords whether cost paid standard indemnity basis whether rejection ofcalderbankoffer reasonable legislation cited county court civil procedure rule 2018 vic o63a rr 30 31 case cited colgate palmolive co anor v cussons pty ltd 1993 fca 536 1993 46 fcr 225 bhp billiton olympic dam corporation pty ltd v steuler industriewerke gmbh 3 2012 vsc 414 hazeldene chicken farm pty ltd v victorian workcover authority 2 2005 vsca 298 2005 13 vr 435 protec pacific pty ltd v steuler service gmbh co kg 2 2015 vsca 123 hannover life australasia v colella 2014 vsca 205 calderbank v calderbank 1975 3 er 333 aljade mkic v ocbc 2004 vsc 351 oshlack v richmond river council 1998 hca 11 1998 193 clr 72 australian competition consumer commission v australian safeway store pty limited 3 2002 fca 1294 hobartville stud pty ltd v union insurance co ltd 2004 fca 1600 appearance counselsolicitorsfor plaintiffmr l faustmorgan couzens legalfor defendantsmr crockerjames g sloan lawyersher honour introductionon 28 february 2023 gave judgment favour defendant matter mr mr russell russell dismissed proceeding brought plaintiff border lifting alleged breach respective employment contract border lifting claimed russell deprived payment fund comprising unentitled bonus wage misuse work credit card unauthorised spending meal accommodation allowance well cost respect expert report prepared rsm australia pty ltd rsm ordered plaintiff pay defendant cost incidental proceeding standard basis taxed default agreement unless either party basis seeking different order cost invited party prepare draft order give effect reason party unable reach agreement issue cost prepared written submission question whether cost proceeding paid standard partially accordance county court scale indemnity basis entirety russell seek order border lifting pay russell cost incidental proceeding including reserved cost taxed default agreement standard basis respect cost incurred including 2 july 2021 thereafter indemnity basis alternative b 10 august 2022 thereafter indemnity basis border lifting opposes order pay russell cost indemnity basis expiry first offer 2 july 2021 date expiry second offer 10 august 2022 border lifting oppose order pay russell cost date expiry second offer 10 august 2022 reason set border lifting ought pay russell cost incidental proceeding including reserved cost taxed default agreement standard basis respect cost incurred including 10 august 2022 thereafter indemnity basis relevant backgroundin judgment dated 28 february 2023 found border lifting discharged onus proof relation claim f 1a f 2 f 3 f 3a f 7 f 10 respect claim f4 border lifting contractual right recover additional overpayment given appropriate recovery overpayment restitution unjust enrichment pleaded border lifting conceded closing submission could meet requisite standard proof relation item f 7 claim entirety f 8 claim therefore need deal f 8 claim party statement key issue dated 18 october 2022 border lifting pursue claim relation misuse company vehicle unauthorised fuel expense claim f 9 1 border lifting pursue claim relation failure return car roof ladder rack forming part claim f 12 2 balance f 12 claim relation angle grinder sum 698 00 withdrawn day 3 trial roof rack given victoria police 5 february 2021 therefore need deal claim basis accordance reason outlined judgment dated 28 february 2023 ordered proceeding brought border lifting dismissed present proceeding involves twocalderbank 3 offer letter marked without prejudice except cost setting term proposed settlement 24 june 2021 russell made acalderbankoffer settle proceeding paying border lifting 60 000 00 inclusive cost within 30 day acceptance offer offer open acceptance 2 july 2021 time lapsed accepted border lifting first offer 27 july 2022 russell made calderbank offer settle proceeding paying border lifting 100 000 00 inclusive cost interest within 14 day acceptance offer offer open acceptance 10 august 2022 second offer legal frameworkit common ground general rule court order cost taxed standard basis 4 discretion make special cost order unlimited one though must exercised judicially unreasonably circumstance special 5 usual order cost cost follow event successful party entitled award cost favour 6 inbhp billiton olympic dam corporation pty ltd v steuler industriewerke gmbh 3 7 justice habersberger set matter considered circumstance involving rejection letter offer follows fact le favourable result achieved give rise presumption special cost order making offer rejection two factor court regard exercise cost discretion b competing policy objective promoting settlement reducing litigation cost discouraging potential litigant bringing dispute court c critical question whether rejection offer unreasonable circumstance considering whether rejection letter offer unreasonable court regard following matter stage proceeding offer received ii time allowed offeree consider offer iii extent compromise offered iv offeree prospect success assessed date offer v clarity term offer expressed vi whether offer foreshadowed application indemnity cost event offeree rejecting e whether unreasonable offeree rejected offer made time within reasonably short time offer made 8 f court readily embrace submission inevitable proceeding would fail g onus lie offeror demonstrate unreasonableness offeree rejection offer mean necessary analyse proposed h general rule calderbank offer must set specificity basis offeror contention offeree accept compromise necessary applicant indemnity cost order establish matter might relevant well recognised ground indemnity cost conduct pre requisite finding rejection calderbank offer unreasonable j offer permitted calderbank offer justice habersberger decision upheld appeal court appeal protec pacific pty ltd v steuler service gmbh co kg 2 9 principle established habersberger j referred court appeal inhannover life australasia v colella 10 without criticism issuesgiven border lifting position oppose special cost order date expiry second offer issue determination follows border lifting rejection first offer unreasonable b yes border lifting pay russell cost proceeding standard basis 2 july 2021 thereafter indemnity basis alternatively ii 10 august 2022 thereafter indemnity basis c border lifting pay russell cost proceeding taxed standard basis default agreement submissionsfirst offerthe russell submit border lifting rejection first offer unreasonable regard following factor proceeding stage first offer made commercial division expedited case list listed trial 23 august 2021 proceeding well advanced pleading closed date discovery completed passed b period seven day service consideration offer reasonable allegation made proceeding conceptually complex ought well understood border lifting border lifting able ass position informed considered manner c offer 60 000 00 including cost proceeding significant represented genuine fair compromise date offer border lifting claim totalled 116 336 90 plus 54 371 01 cost two rsm report russell offer represented 50 outer limit damage claimed border lifting prospect success assessed date offer limited principal claim mr russell received overtime payment totalling 50 018 38 entitled russell alleged term mr russell employment contract entitled overtime manually recorded reported border lifting weekly mr russell email reporting overtime worked critical russell defence date offer border lifting discovered 11 email maintained puddle document ocean subsequently discovered 100 email substantially amended claim relation overtime claim trial mr robinson agreed knew significantly email affirmed affidavit find apparent border lifting date offer substantial part claim faced significant difficulty e term offer clear f offer foreshadowed application indemnity cost border lifting contends rejection first offer unreasonable following reason referring principle set decision habersberger j inbhp billiton olympic dam corporation pty ltd v steuler industriewerke gmbh 3 11 responds russell submission concedes 24 june 2021 russell made first offer referred tocalderbankand foreshadowed application indemnity cost term first offer clear b whilst proceeding well advanced ought considered context russell ongoing concern adequacy border lifting discovery subsequent filing amended statement claim dated 22 april 20202 well consequent pleading c period seven day consideration first offer reasonable given significant dispute existed party existence email disingenuous russell say allegation made proceeding conceptually complex given ongoing dispute overtime email consequence border lifting able ass position informed considered manner circumstance border lifting would conceded seven day reasonable period e russell first offer 60 000 00 including cost proceeding represent genuine fair compromise time first offer border lifting spent 54 371 01 rsm report incurred significant cost point border lifting submits entitled treat cost rsm report head damage successful trial claim cost rsm report taxation assessment cost whether would succeeded would necessarily affected existence overtime email significant dispute f russell submission focus part amended statement claim f1 claim fail make submission balance border lifting claim assessed 24 june 2021 claim made amended statement claim border lifting sought rely rsm report relation f1 f2 f3 f4 f7 f8 f9 f10 claim whilst border lifting suggesting reliance rsm report would sufficient succeed claim trial noting decision rely rsm report trial submits issue argues russell discharged onus relation claim amended statement claim attempting relation f1 claim g date first offer border lifting discovered 11 email subsequently discovered 100 email relation overtime payment amended claim say reference affidavit solicitor charles morgan sworn 11 april 2023 24 june 2021 considerable dispute party existence email relation mr russell overtime discovered border lifting first offer border lifting significantly recast f1 claim h russell submit trial mr robinson agreed knew significantly email affirmed affidavit apparent date first offer substantial part claim faced difficulty border lifting say put mr robinson one line evidence support russell proposition ought read context whole mr robinson cross examination border lifting submits evidence available 24 june 2021 suggests mr robinson mr robinson tasked locating alleged email believed others second offerthe russell submit second offer referred tocalderbank v calderbank 12 adopted victorian court appeal inhazeldene chicken farm pty ltd v victorian workcover authority 2 13 letter stated offer accepted border lifting obtained trial result favourable term offer letter would produced court support application indemnity cost date offer expired russell submit border lifting rejection second offer unreasonable regard following factor proceeding well advanced point offer foot 18 month amended pleading filed discovery made two mediation conducted letter stated matter foot since 21 january 2021 statement claim amended twice client benefit client defence proceeding stage party incur cost preparing trial cost substantial relative amount claimed plaintiff b period 14 day service consideration offer reasonable c offer 100 000 00 including cost proceeding significant represented genuine fair compromise date offer border lifting claim totalled 108 910 51 plus 54 371 01 cost two rsm report border lifting prospect success assessed date offer poor reason set letter allegation russell extremely serious six year period deprived border lifting 100 000 00 making unauthorised wage bonus credit card payment principal claim mr russell work hour paid claim entirely inferential predicated inadmissible lay opinion another aspect border lifting claim relied upon allegation mr russell deceptively affixed mr robinson signature employment contract allegation particularised accordance rule supporting evidence ultimately offered trial e term offer clear f consequence accepting offer foreshadowed border lifting oppose order pay indemnity cost date expiry second offer 11 august 2022 thereafter address respond russell submission respect second offer analysiswas border lifting rejection first offer unreasonable reason set answer respect first offer russell rely twocalderbankletters dated 24 june 2021 dated 27 july 2022 first offer offered settle proceeding russell paying border lifting sum 60 000 00 inclusive cost within 30 day acceptance offer first offer open period 7 day referenced thecalderbankdecision subsequent authority warned letter would produced court event application cost including indemnity basis letter however explain reason claim made misconceived doomed fail border lifting reply first offer within 7 day period russell contend border lifting failure accept first offer unreasonable following reason proceeding listed trial 23 august 2021 well advanced pleading closed discovery made b term offer clear c period 7 day consideration reasonable sum 60 000 00 represented genuine fair offer including cost date offer border lifting claim totalled 116 336 90 plus 54 371 01 rsm report represented 50 damage claimed e border lifting prospect success limited principal claim mr russell received overtime payment totalling 50 018 38 entitled ii russell alleged term mr russell employment contract entitled overtime manually recorded reported border lifting weekly iii mr russell email reporting overtime worked critical russell defence iv date offer border lifting discovered 11 email maintained puddle document ocean subsequently discovered 100 email substantially amended claim relation overtime claim v trial mr robinson agreed knew significantly email affirmed affidavit find vi apparent border lifting date offer substantial part claim faced significant difficulty f cost consequence accepting offer foreshadowed border lifting contends rejection first offer unreasonable following reason whilst proceeding well advanced must considered context ongoing concern adequacy discovery subsequent pleading amendment b clear ongoing dispute overtime email border lifting position consider position 24 june 2021 informed considered manner c russell offer 60 000 00 genuine fair compromise considering time first offer border lifting spent 54 371 01 rsm report incurred significant cost point whether border lifting would succeeded trial relation overpayment claim affected existence overtime email significant dispute e russell discharged onus respect claim amended statement claim beyond f1 claim f considerable dispute existence email relation mr russell overtime payment discovered border lifting first offer border lifting significantly recast f1 claim g one line evidence trial support russell submission mr robinson knew significantly email apparent date first offer substantial part claim faced difficulty mere refusal offer automatically mean court make order cost indemnity basis ultimate result le favourable contained offer 14 accept russell submission first offer favourable judgment entered however principle must unreasonableness refusal accept 15 view first offer genuine offer compromise however unreasonable border lifting reject offer circumstance claim still amended border lifting yet discover 100 email relation overtime worked mr russell 23 july 2021 russell explained letter offer border lifting prospect success issue dispute existing party hand second offer genuine offer compromise invitation capitulate offering pay border lifting sum 100 000 00 inclusive cost interest within 14 day acceptance offer offer open acceptance 10 august 2022 border lifting respond offer completeness view border lifting act unreasonably rejecting second offer circumstance proceeding foot 18 month amended pleading filed discovery made two mediation conducted b period 14 day consider offer reasonable c offer 100 000 00 including cost interest represented genuine fair compromise proceeding border lifting claim stage totalled 108 910 51 plus 54 371 01 rsm report second offer set reason border lifting prospect success ground poor including follows allegation russell extremely serious six year period deprived border lifting 100 000 00 making unauthorised wage bonus credit card payment ii principal claim mr russell work hour paid claim entirely inferential predicated inadmissible lay opinion iii another aspect border lifting claim relied upon allegation mr russell deceptively affixed mr robinson signature employment contract allegation particularised accordance rule supporting evidence ultimately offered trial e term offer clear f consequence accepting offer foreshadowed border lifting pay russell cost proceeding standard basis 2 july 2021 thereafter indemnity basis given finding rejection first offer border lifting unreasonable answer issue border lifting pay russell cost proceeding standard basis 10 august 2022 thereafter indemnity basis foregoing reason relation second offer answer yes conclusionborder lifting ought pay russell cost incidental proceeding including reserved cost taxed default agreement standard basis respect cost incurred including 10 august 2022 thereafter indemnity basis ordersfor reason set order follows judgment defendant b proceeding dismissed c plaintiff pay defendant cost incidental proceeding including reserved cost taxed default agreement standard basis respect cost incurred including 10 august 2022 thereafter indemnity basis certificatei certify 18 page true copy judgment honour judge burchell delivered 18 april 2023 dated 18 april 2023nikki thomsonassociate honour judge burchell 1 see plaintiff amended statement claim dated 22 april 2022 paragraph 48 49 2 ibid paragraph 57 b 3 calderbank v calderbank 1975 3 er 333 4 o63a r31 thecounty court civil procedure rule 2018 rule see r 30 regarding meaning standard basis 5 aljade mkic v ocbc 2004 vsc 351 10 6 oshlack v richmond river council 1998 hca 11 1998 193 clr 72at 97 7 2012 vsc 414at 59 67 reference tohazeldene chicken farm pty ltd v victorian workcoverauthority 2 2005 vsca 298 2005 13 vr 435 8 australian competition consumer commission v australian safeway store pty limited 3 2002 fca 1294per goldberg j 21 9 2015 vsca 123at 55 10 2014 vsca 205at 91 11 2012 vsc 414at 59 67 12 1975 3 er 333 13 2005 vsca 298 2005 13 vr 435 14 hazeldene chicken farm pty ltd v victorian workcoverauthority 2 2005 vsca 298 2005 13 vr 435at 18 20 15 hobartville stud pty ltd v union insurance co ltd 2004 fca 1600per crennan j 6

0808034 [2010] MRTA 537 (5 March 2010).txt

0808034 2010 mrta 537 5 march 2010 last updated 17 march 20100808034 2010 mrta 537 5 march 2010 decision recordapplicant miss anella abenmrt case number 0808034diac reference clf2008 155826tribunal member john atkinsdate 5march 2010place decision melbournedecision tribunal affirms decision grant applicant working holiday temporary class tz visa statement decision reasonsapplication reviewthis application review decision made delegate minister immigration citizenship refuse grant applicant working holiday temporary class tz visa unders 65of themigration act 1958 act applicant applied department immigration citizenship working holiday temporary class tz visa 5 august 2008 delegate decided refuse grant visa 8 november 2008 notified applicant decision review right letter dated 8 november 2008 delegate refused visa application applicant satisfy cl 417 211 5 schedule 2 themigration regulation 1994 regulation delegate found applicant satisfy cl 417 211 5 delegate satisfied applicant completed three month work regional australia applicant applied tribunal 24 november 2008 review delegate decision tribunal find delegate decision mrt reviewable decision tribunal find applicant made valid application review 347 act relevant lawthe issue review whether applicant meet criterion referred cl 417 211 5 grant working holiday temporary class tz visa state applicant previously entered australia holder working holiday visa minister satisfied applicant carried seasonal work regional australia total period least 3 month holder visa seasonal work defined gazettal notice immi 08 048 type work undertaken employee primary producer including plant animal cultivation harvesting packing fruit vegetable crop ii pruning trimming vine tree iii general maintenance crop work iv cultivating propogating plant fungi product part v immediate processing plant product vi maintaining animal purpose selling bodily produce including natural increase vii immediate processing animal product including shearing butchery packing tanning viii manufacturing dairy produce raw material b fishing pearling conducting operation relating directly taking catching fish aquatic specie ii conducting operation relating directly taking culturing pearl pearl shell c tree farming felling planting tending tree plantation forest intended felled ii felling tree plantation forest iii transporting tree part tree felled plantation forest place first milled processed transported place milled processed claim evidencethe tribunal department file relating applicant tribunal also regard material referred delegate decision material available range source applicant arrived australia 417 visa 23 august 2007 valid 23 august 2008 applied 417 5 august 2008 application stated worked seasonal worker regional australia le 3 month 7 august 2008 5 september 2008 1 october 2008 applicant asked provide evidence seasonal work completed first working holiday maker visa way form 1263 10 october 2008 applicant provided payslip one employer number day worked sufficient meet requirement visa department rejected application following basis part schedule 2 requirement applicant must carried specified work regional australia least 3 month satisfied applicant completed 3 month specified work regional australia satisfied applicant meet regulation 417 211 5 2 february 2010 tribunal wrote applicant advising considered material relating application unable make favourable decision information alone tribunal invited applicant give oral evidence present argument hearing 3 march 2010 applicant advised attend hearing postponement granted tribunal may make decision case without notice letter returned tribunal tribunal confirmed invitation sent recently advised address check movement record made tribunal showed applicant left australia 5 october 2009 returned applicant appear tribunal day time place scheduled appear circumstance pursuant 359c act tribunal decided make decision review without taking action enable applicant appear finding reasonsthe applicant arrived australia 417 visa 23 august 2007 valid 23 august 2008 previously stated issue review whether applicant meet criterion referred cl 417 211 5 grant working holiday temporary class tz visa state applicant previously entered australia holder working holiday visa minister satisfied applicant carried seasonal work regional australia total period least 3 month holder visa insufficient evidence relation applicant claim carried seasonal work regional australia 4 september 2007 23 march 2008 applicant invited provide detail evidence previous work carried australia also invited appear tribunal consequence tribunal unable question claimed seasonal work leaving claim unclarified tribunal question unanswered evidence tribunal satisfied applicant carried seasonal work regional australia total period least 3 month holder 417 visa mean criterion cl 417 211 satisfied given finding made given subclass within working holiday temporary class tz tribunal affirms decision review decisionthe tribunal affirms decision grant applicant working holiday temporary class tz visa john atkins 5 march 2010member

Arcuri v Dalma Formwork Pty Limited and Ors [2001] NSWSC 219 (29 March 2001).txt

arcuri v dalma formwork pty limited or 2001 nswsc 219 29 march 2001 last updated 2 april 2001new south wale supreme courtcitation arcuri v dalma formwork pty limited or 2001 nswsc 219current jurisdiction common law divisionfile number 20559 1999hearing date 23 march 2001judgment date 29 03 2001parties peter arcuri plaintiff vdalma formwork pty limited first defendant laurence john woodley second defendant walter construction group pty limited third defendant target steel fixing pty limited proposed fourth defendant judgment master malpasslower court jurisdiction applicablelower court file number applicablelower court judicial officer applicablecounsel mr g hickey plaintiff n first second third defendant mr j sewell proposed fourth defendant solicitor carroll dea plaintiff hunt hunt amicus curia first second defendant n third defendant john sharpe proposed fourth defendant catchword leave commence common law proceedingsdiscretionary considerationssufficiency explanation delay act cited worker compensation act 1987 151d 2 decision see paragraph 21 judgment supreme courtof new south walescommon law divisionmaster malpassthursday 29 march 200120559 1999peter arcuri v dalma formwork pty limited orsjudgment1 proceeding commenced statement claim filed 7 december 1999 process amended amended statement claim filed 16 december 1999 2 plaintiff injured work incident took place 22 march 1997 fork lift vehicle driven body plaintiff whilst working construction site broadway 3 presently three defendant plaintiff wish add fourth defendant target steel fixing pty limited employer time incident seek leave file amended statement claim seek relief unders 151d 2 theworkers compensation act1987

Industrial Relations Commission Decision 1077_1989 [1989] AIRC 1021; (22 December 1989).txt

industrial relation commission decision 1077 1989 1989 airc 1021 22 december 1989 industrial relation commission decision 1077 1989 australian industrial relation commissionindustrial relation act 1988s 99notification industrial dispute meat allied trade federation australia another australasian meat industry employee union c 37678 1989 meat worker meat industry deputy president riordan sydney 22 december 1989 industrial dispute grievance procedure dispute settling procdures employer alleged failure follow dispute procedure employee number company strong recommendation made union member observe dispute procedure company asked carefully consider position taking action seen employee attack existing condition decision following decision given transcript sydney thursday 7 december 1989 notification deal alleged failure follow dispute procedure employee number company bound several award commission commission aware quite unsatisfactory state industrial relation industry present time including situation applying queensland commission informed action taken employer federal court australia action taken state law proceeding supreme court queensland employer union entitled take action advised accordance law existing several state commonwealth australia award commission made view settling industrial dispute preventing dispute primary purpose award create state harmony industry generally covered award dispute procedure try bring regulation dispute resolution dispute occur job commission available usually readily available hear determine dispute fair impartial manner accordance statute commission regulated would everybody interest management company union member concerned would take one step back precipice present time irreparable damage done one action seems beget another urge concerned tone disputation follow dispute procedure take precipitate action stage may well regretted management union official company employee future therefore hesitation adopting mr salter behalf meat allied trade federation asked make strong recommendation union member observe dispute procedure equally hesitation adopting mr day behalf amieu asked ask company carefully consider position taking action seen employee attack existing condition commission deputy president

Applicant: Mrs Buasri Attard Principal: Ms Noophad Panjakaew IRT Reference: N94_00064 #number 3663 [1994] IRTA 3663 (29 April 1994).txt

applicant mr buasri attard principal m noophad panjakaew irt reference n94 00064 number 3663 1994 irta 3663 29 april 1994 immigration review tribunalstatement decision reason decisionirt decision n94 00064 3663 docapplicant mr buasri attardprincipal m noophad panjakaewtribunal mr j metledgepresiding memberdate 29 april 1994place sydneydecision tribunal affirms decision review find principal entitled class 683 close family visitor visa reason decisionthis review decision refusing grant class 683 close family visitor visa principal m noophad panjakaew original application lodged bangkok 3 november 1993 decision refusing application made delegate minister immigration local government ethnic affair department 3 november 1993 application internal review original decision made migration internal review office miro 18 november 1993 review officer affirmed decision 7 january 1994 application review made tribunal 19 january 1994 applicant mr buasri attard relation applicant principal sister principal born 12 august 1974 citizen thailand criterion satisfied migration application lodged 1 february 1993 contained themigration 1993 regulationswhich repealed themigration 1989 regulation accordingly regulation applicable case themigration 1993 regulation hereinafter called regulation order determine entitlement applicant visa entry permit tribunal must regard provision themigration act 1958 act regulation regulation provide class visa entry permit prescribe criterion met applicant becomes entitled visa entry permit non citizen wish travel australia must hold valid visa holder valid visa may travel landing place australia airport may leave airport person require grant valid entry permit arrival enable enter remain legally australia regulation provide grant permanent visa entry permit temporary visa entry permit reaching decision tribunal bound relevant legislation applies relevant government policy general policy guideline applied tribunal unless cogent reason contrary general policy direction issued minister pursuant section 179 act applied wherever relevant see generallyre drake minister immigration ethnic affair 2 1979 aata 179 1979 2 ald 634andali v minister immigration local government ethnic affair 1992 fca 453 1992 38 fcr 144 determining fact existed date application tribunal may take account later fact far throw light situation existed earlier date inbretag v immigration review tribunal minister immigration local government ethnic affair unreported federal court 29 november 1991 federal court held tribunal may regard subsequent history determining question fact time application long tends logically show existence non existence fact relevant issue determined quoting fromminister immigration ethnic affair v pochi 1980 fca 85 1980 4 ald 139at 160 per deane j regard onus proof issue arises type case legal onus applicant give sufficient evidence prove claim nevertheless applicant interest make evidence knowledge available decision maker end review tribunal uncertain unable decide balance probability sufficient evidence exists entitle applicant visa entry permit must decide applicant decision concern refusal application principal visit family member australia people intend visit family australia must apply class 683 close family visitor visa intend stay exceeding 3 month apply class 673 close family visitor short stay visa legislative criterion specifically relevant class 683 close family visitor visa set schedule 2 migration 1993 regulation following term 683 32 criterion satisfied time application visa entry note applicant previously entered australia holder class 683 entry permit entry visa applicant may qualify grant visa regulation 2 15 683 321 applicant seek visa order obtain temporary entry purpose visiting australian citizen australian permanent resident parent spouse child brother sister applicant 683 322 applicant adequate fund personal support period visit 683 323 period stay australia proposed application exceeds 3 month 683 33 criterion satisfied time decision visa entry 683 331 applicant continues satisfy criterion specified clause 683 321 683 322 683 332 applicant satisfies minister expressed intention applicant visit australia genuine 683 332a applicant satisfies minister applicant intend become permanent resident australia 683 333 applicant satisfies public interest criterion 4001 4005 4011 683 334 applicant previously australia applicant satisfies special entry criterion 5001 5003 5005 5007 5009 5010 683 336 minister satisfied grant visa would prejudice right interest person custody guardianship access applicant clause 683 333 refers public interest criterion 4011 following term 4011 1 applicant affected risk factor specified subclause 2 applicant satisfies minister regard applicant circumstance applicant country usual residence little likelihood applicant remain expiry period applicant might authorised remain entry 2 applicant affected risk factor referred subclause 1 period 5 year immediately preceding application applicant applied visa entry permit purpose permanent residence australia b applicant one relevant characteristic common class person shown statistic prepared secretary movement record kept immigration person remained australia expiry respective period time authorised remain australia 3 purpose subclause 2 relevant characteristic following characteristic nationality b marital status c age sex e occupation f class visa currently applied g place lodgment posting application visa provision contain several requirement firstly existence defined relationship applicant visa australian party must either citizen permanent resident applicant visa must parent spouse child brother sister australian citizen permanent resident secondly applicant adequate fund personal support visit thirdly period stay australia proposed application exceeds 3 month fourthly expressed intention applicant visit australia genuine applicant intend become permanent resident australia fifthly applicant affected risk factor specified subclause 4011 2 regard applicant circumstance applicant country usual residence little likelihood applicant remain expiry period applicant might authorised remain entry subclause 4011 2 defines risk factor application permanent residence made period 5 year immediately preceding visitor application possession one relevant characteristic defined subclause 4011 3 shared class person shown statistic prepared secretary department overstayed australia fourth fifth requirement following effect firstly place legal onus proof applicant satisfy minister matter contained introductory phrase applicant satisfies minister place legal onus proof mere common sense practical onus relation seere deng irt decision n91 00418 delivered 23 september 1991 applicant show applicant intends bona fide genuine visit risk factor specified subclause 4011 2 present applicant circumstance country usual residence little likelihood applicant overstay secondly risk factor defined subclause 4011 2 exists subclause 4011 1 requires applicant satisfy minister regard theapplicant circumstancesin applicant country usual residence little likelihood applicant overstay word risk factor relevant whether applicant overstay merely trigger consideration possibility according theapplicant circumstancesin country usual residence subclause 4011 1 triggered presence risk factor consideration whether applicant overstay must made according defined onerous criterion isvery little likelihoodthat applicant overstay however usual standard proof balance probability continues apply according concise oxford dictionary genuine mean supposed character visit mean go come see person place etc call person place temporary residence person place consequently genuine visit must concern foreign purpose study work inherently temporary nature indicia applicant intention undefined regulation probably unlimited vary case case include consideration length proposed stay applicant socio economic employment situation confirmed leave employment adequate funding visit although whether visit self funded funded australian party usually irrelevant family disposition immigration history like seere baczyk irt decision n90 00135 delivered 25 february 1991 moreover factor may appear bearing issue intent may take relevance acquire another meaning considered part total circumstance case policy direction issued 13 july 1992 superseded 14 august 1991 minister state immigration local government ethnic affair pursuant tos 179of themigration act1958

1305583 [2014] MRTA 303 (30 January 2014).txt

1305583 2014 mrta 303 30 january 2014 last updated 14 february 20141305583 2014 mrta 303 30 january 2014 decision recordapplicant mr anh minh tu tranmrt case number 1305583dibp reference bcc2012 941749tribunal member mary ann cooperdate 30 january 2014place decision melbournedecision tribunal remit application skilled provisional class vc visa reconsideration direction applicant meet following criterion subclass 485 visa cl 485 214 schedule 2 regulation andcl 485 221 schedule 2 regulation statement decision reasonsapplication reviewthis application review decision made delegate minister immigration 27 march 2013 refuse grant applicant skilled provisional class vc visa unders 65of themigration act 1958 act applicant applied visa 31 august 2012 time visa application lodged class vc contained two subclass 485 487 completed application form indicates relevant subclass case subclass 485 criterion set inpart 485of schedule 2 themigration regulation 1994 regulation primary criterion must satisfied least one applicant member family unit applicant visa need satisfy secondary criterion delegate refused visa applicant satisfy cl 485 221 schedule 2 regulation evidence provided applicant skill assessed suitable relevant assessing authority applicant represented relation review registered migration agent tribunal able find favour visa applicant basis material consider hearing necessary 360 2 act following reason tribunal concluded matter remitted reconsideration consideration claim evidenceto satisfy primary criterion grant subclass 485 visa applicant must applied skill assessment nominated skilled occupation assessed suitable occupation additional requirement skill assessment based qualification obtained australia applicant held student visa issue present case whether applicant meet requirement applicant applied relevant skill assessment clause 485 214 requires time application applicant applied assessment applicant skill nominated skilled occupation relevant assessing authority 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 immi 12 065 relevant assessing authority mean person body specified minister instrument r 2 26b regulation r 1 03 relevant instrument purpose also legislative instrument immi 12 065 evidence tribunal applicant nominated occupation construction project manager anzsco code 133111 specified skilled occupation occupation relevant assessing authority specified vetassess visa application 30 august 2012 applicant indicated applied skill assessment nominated occupation 28 august 2012 document departmental file confirm claim basis tribunal satisfied time application applicant applied skill assessment nominated skilled occupation relevant assessing authority therefore requirement cl 485 214 met applicant assessed suitable nominated occupation clause 485 221 requires time decision applicant skill nominated skilled occupation assessed relevant assessing authority suitable occupation cl 485 221 1 stated relevant assessing authority case vetassess although provided department tribunal receipt positive skill assessment vetassess applicant occupation construction project manager anzsco code 133111 tribunal independently verified vetassess basis tribunal find applicant skill assessed suitable nominated skilled occupation relevant assessing authority applicant therefore satisfies requirement cl 485 221 1 qualification obtained assessment made basis qualification obtained australia applicant holder student visa qualification must obtained result studying registered course cl 485 221 2 registered course defined mean course education training provided institution body person registered undersection 9of theeducation service overseas student act 2000 provide course overseas student r 1 03 information visa application departmental file also provider registration international student management system prism database maintained online department education employment workplace relation indicates applicant completed bachelor engineering building engineering 31 december 2010 master project management 31 december 2011 last day study recorded 7 june 2011 basis subject exemption granted victoria university melbourne tribunal accepts basis evidence applicant course cricos registered course defined r 1 03 time undertaken applicant basis evidence combined departmental movement record confirming applicant held student visa relevant period study tribunal find applicant skill assessment made basis qualification obtained australia whilst applicant holder student visa tribunal find qualification obtained result studying registered course therefore applicant satisfies requirement cl 485 221 2 follows applicant meet requirement cl 485 221 conclusionon basis finding tribunal find applicant meet requirement cl 485 214 485 221 schedule 2 regulation appropriate course remit visa application minister consider remaining criterion visa decisionthe tribunal remit application skilled provisional class vc visa reconsideration direction applicant meet following criterion subclass 485 visa cl 485 214 schedule 2 regulation andcl 485 221 schedule 2 regulation mary ann coopermember

NSW Tafe Commission Teachers (Tafe Children's Centres) Salaries & Conditions Award [1999] NSWIRComm 162 (23 April 1999).txt

nsw tafe commission teacher tafe child centre salary condition award 1999 nswircomm 162 23 april 1999 industrial relation commission new south walescoram schmidt jdate 23 april 1999matter irc 3389 1998nsw tafe commission teacher tafe child centre salary condition awardapplication nsw teacher federation new awardmatter irc 5188 1998nsw tafe commission teacher tafe child centre salary condition awardapplication department education training new awardjudgmentthese competing application making first award director teacher employed department education training department long day care centre situated tafe college presently 20 college fewer 30 person award apply party agreed main provision new award hearing commenced party outlined difference narrowed course hearing matter finally fell determined relatively part philosophical particular view teacher federation aspect award reflect condition employment apply employed teach course offered tafe college negotiating new award party looked industrial instrument apply director teacher employed long day care centre private sector several particularly award applying centre operated kindergarten union teacher ku child service state award consent award made june 1997 party agreed instance approach provided award fixing director rate would adopted allowance reflecting size centre added otherwise applicable teacher rate pay also agreed allowance fixed award adopted award backgroundthe first long day care centre tafe established 1984 1986 12 20 centre two centre operated department kindergarten union non profit community based organisation teacher director employed two centre covered provision teacher ku service state award centre established provide service tafe student tafe staff also access centre member general community preference given child tafe student centre required licensed accordance state legislation thechildren care protection act1987

Clanton & Lachman [2022] FedCFamC2F 401 (4 April 2022).txt

clanton lachman 2022 fedcfamc2f 401 4 april 2022 last updated 9 june 2022federal circuit family court australia division 2 clanton lachman 2022 fedcfamc2f 401file number syc 6156 2017judgment judge morleydate judgment 4 april 2022catchwords 1family law parenting final order mother seek sole parental responsibility father seek equal shared parental responsibility mother seek order requiring father undertake mental health assessment prior spending time child pending mental health assessment mother seek regime supervised daytime weekend time graduated daytime weekend time without supervision father seek immediate alternate weekend overnight time legislation family law act 1975 cth s 4ab 60b 60ca 60cc 61da 64b 65d 65daa 65dab 67zc 68b 68p 114cases cited child representative 1998 famca 25 1998 22 famlr 756ams aif 1999 flc 92 852bemert swallow 2009 famca 5deiter deiter 2011 famcafc 82eaby speelman 2015 famcafc 104grella jamieson 2017 famcafc 21jacks samson 2008 famcafc 173johnson page 2007 famca 1235 2007 flc 93 344keskin keskin 2019 famcafc 236litchfield beck 2010 fmcafam 969l 1999 famca 1699m 1988 famca 11 1988 flc 91 973napier hepburn 2006 famca 1316 2006 flc 93 303oberlin infeld 2021 famcafc 66pavli beffa 2013 famca 144sadasivam seshan 2019 famcafc 76division division 2 family lawnumber paragraph 363date last submission 11 december 2020date hearing 18 19 20 november 2020 11 december 2020place sydneycounsel applicant mr hillsolicitor applicant inner west solicitor pty ltdcounsel respondent mr striksolicitor respondent mark whelan lawyerorderssyc 6156 2017federal circuit family court australia division 2 m clantonapplicantand mr lachmanrespondentorder made judge morleydate order 4 april 2022the court order 1 mother sole parental responsibility childrenxborn 2010 andyborn 2012 child relation matter relating child health relation matter relating child education 2 parent shared parental responsibility child relation parental responsibility matter relating child health relating child education 3 child live mother 4 child spend time father follows four successive saturday 9 00 5 00 pm first occasion saturday 8 april 2022 b thereafter four occasion alternate weekend 9 00 saturday 5 00 pm sunday first occasion commence saturday 6 may 2022 c thereafter alternative weekend school term time end school 3 00 pm school day friday start school 9 00 school day monday 6 00 pm sunday father position deliver child school time start school monday monday school day first occasion commence friday 22 july 2022 school holiday end term 2 2022 end school attendance term 2 5 00 pm first tuesday school holiday e school holiday end term 3 2022 thereafter school holiday half school holiday first half school holiday commence even numbered year second half school holiday commence odd number year changeover 5 00 pm middle day school holiday f event child otherwise spending time father father day 9 00 6 00 pm father day g odd numbered year 12 noon 25 december 12 noon 26 december h time may agreed parent writing 5 notwithstanding order child shall mother care mother day 9 00 6 00 pm b even numbered year 12 noon 25 december 12 noon 26 december 6 changeover occur child school school shall occur suburb c park corner street b street suburb c 7 parent shall keep parent informed change parent telephone contact detail email address communication father shall keep mother informed current residential address time 8 mother shall keep father informed health issue affecting either child detail school school child attend shall authorise school school child attend make available father copy child school report correspondence relating child either including behavioural issue including school providing father access code school website accessed obtain information 9 parent restrained denigrating parent member parent family member parent household presence within hearing either child 10 parent restrained allowing either child remain presence within either child hearing person denigrating parent member parent family member parent household 11 father restrained attending child extra curricular activity occur time spending time father pursuant order 12 father shall thing necessary facilitate child attending scheduled extra curricular activity time child spend provided father notified said extra curricular activity le 14 day date scheduled occur 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 pseudonymclanton lachmanhas approved pursuant tos 121 9 g thefamily law act 1975 cth reason judgmentjudge morley introduction1 applicant mother m clanton mother respondent father mr lachman father parent x born 2010 born 2012 2 parent began de facto relationship either 2006 father evidence september 2008 mother evidence separated 2013 x three year four month age one year five month age parent ceased live together 2012 father left former matrimonial home provisional advo issued authorised police protection mother father made final order local court suburb e x two year three month age three month age time 3 despite parent physical separation time mother consider party separated mid 2013 4 time hearing x 10 year nine month age eight year ten month age child year older due time passed subsequent hearing regrettable delay delivery reason making final order 5 main issue determination allocation parental responsibility child b time child spend father whether time subject condition associated risk child spending time father asserted mother c particular relation risk whether order made requiring father undertake mental health assessment one two named mental health professional prior commencement spending time child issue party travel child outside commonwealth australia 6 final hearing took place 18 20 november 2020 final submission made court 11 december 2020 mother represented hearing mr hill counsel father represented hearing mr strik counsel 7 stated regrettable year elapsed since conclusion hearing making final order consequence reason apologise child mother father legal practitioner involved delay proceedings8 proceeding commenced mother filing initiating application 19 september 2017 first mention judge harper honour 1 november 2017 interim order made restraining father attending child school father directed file serve response supporting document 8 december 2017 matter adjourned 15 february 2018 father comply direction filing document 9 9 february 2018 mother filed amended initiating application amendment order detailed later reason matter court 15 february 2018 judge monahan made order party attend child dispute conference 23 march 2018 father ordered file serve response supporting document within four week matter adjourned mention 6 april 2018 father comply direction relation filing document 10 6 april 2018 matter judge harper honour directed father file serve response 13 april 2018 adjourned matter 3 may 2018 call allocation hearing date 13 april 2018 father filed response supporting document 11 3 may 2018 matter judge henderson honour exchange honour father court detail form part evidence upon hearing honour made interim order pending order child would live mother b mother would sole parental responsibility c father would restrained attending child school approaching school ground time school hour engaging conduct may disrupt orderly schooling child father would required attend f service attend anger management course course assist putting need child directed staff f service e father would required pay mother cost sum 278 within 30 day 12 notably order made honour interim basis relation father spending time child matter adjourned mention 27 september 2018 13 27 september 2018 matter came judge harper honour made order undersection 62gof thefamily law act1975

Application by "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) [2013] FWC 4430 (5 July 2013).txt

application automotive food metal engineering printing kindred industry union known australian manufacturing worker union amwu 2013 fwc 4430 5 july 2013 2013 fwc 4430fair work commissiondecisionfair work act 2009s 448 application revocation protected action ballot order automotive food metal engineering printing kindred industry union known australian manufacturing worker union amwu b2013 1008 deputy president lawrencesydney 5 july 2013revocation orderpr537999 1 application automotive food metal engineering printing kindred industry union known australian manufacturing worker union amwu amwu revoke order protected action ballot pursuant tos 448of thefair work act 2009 act lodged fair work commission 2 july 2013 application relates order issued commissioner bull pr537999 19 june 2013 pursuant tos 443of act application amwu protected action ballot matter b2013 157 2 section 448of act deal revocation protected action ballot order set 448 revocation protected action ballot order 1 applicant protected action ballot order may apply fwa time voting protected action ballot close revoke order 2 application revoke protected action ballot order made fwa must revoke order 3 amwu applicant protected action ballot matter b2013 157 therefore eligible make application unders 448of act voting pursuant order pr537999 closed application therefore made within time prescribed bys 448 1 act 4 pursuant tos 448 2 act fair work commission must revoke protected action ballot application made order issue accordingly deputy presidentprinted authority commonwealth government printer price code pr538616

Rogers (Migration) [2019] AATA 4711 (9 July 2019).txt

rogers migration 2019 aata 4711 9 july 2019 last updated 14 november 2019rogers migration 2019 aata 4711 9 july 2019 decision recorddivision migration refugee divisionapplicant mr william john rogerscase number 1719806home affair reference bcc2016 4035888member r skarosdate 9 july 2019place decision sydneydecision tribunal affirms decision grant applicant employer nomination permanent class en visa statement made 09 july 2019 1 14pmcatchwordsmigration employer nomination permanent class en visa subclass 186 employer nomination scheme temporary residence transition stream employer nomination application refused application review refusal withdrawn response tribunal communication decision review affirmedlegislationmigration act 1958 cth s 65 359a 359c 360 3 363amigration regulation 1994 cth schedule 2 cl 186 223 2 casehasran v miac 2010 fcafc 40statement decision reasonsapplication reviewthis application review decision made delegate minister immigration border protection 9 august 2017 refuse grant applicant employer nomination permanent class en visa unders 65of themigration act 1958 act applicant applied visa 30 november 2016 time application class en contained one subclass subclass 186 employer nominationscheme criterion grant subclass 186 visa set inpart 186of schedule 2 themigration regulation 1994 regulation primary criterion must satisfied least one applicant member family unit applicant visa need satisfy secondary criterion applicant seeking satisfy primary criterion must meet common criterion well criterion one three alternative visa stream temporary residence transition stream direct entry stream labour agreement stream present case applicant seeking visa temporary residence transition stream work nominated position drainer anzsco 334113 delegate refused grant visa applicant meet cl 186 223 2 schedule 2 regulation nomination position approved applicant represented relation review registered migration agent following reason tribunal concluded decision review affirmed consideration claim evidencethe issue present case whether nomination position approved nomination positionclause 186 223 applicable case set full attachment decision essentially requires position application relates subject application approval nomination temporary residence transition stream identifies visa applicant position must one subject declaration required made part current visa application addition criterion also requires nomination approved subsequently withdrawn applicant applied visa basis employer nomination lodged louth civil pty ltd tribunal satisfied information nomination identified applicant relevant subclass 457 visa holder reference nomination relevant declaration made applicant visa application required cl 186 223 1 department refused relevant nomination relation applicant consequently visa application refused louth civil pty ltd applied review delegate decision approve nomination however subsequently withdrew application review 9 may 2019 tribunal wrote review applicant pursuant 359a act inviting review applicant provide comment information considered would part reason affirming decision review writing information related withdrawal application review nomination refusal made louth civil pty ltd tribunal explained relevant requirement cl 186 223 2 requires relevant nomination approved invitation sent last address provided connection review advised comment provided writing 23 may 2019 tribunal may make decision review without taking step obtain comment review applicant would lose entitlement might otherwise act appear tribunal give evidence present argument review applicant provided comment within prescribed period extension granted circumstance 359c applies pursuant 360 3 review applicant entitled appear tribunal effect 363a act review applicant entitlement hearing tribunal power permit appear hasran v miac 2010 fcafc 40 tribunal decided proceed decision without taking step obtain comment tribunal satisfied invitation comment correctly sent authorised recipient email applicant properly informed non response may result tribunal proceeding decision information furthermore information tribunal indicates relevant nomination approved given applicant would unable rely nomination succeed review tribunal considers futile delay making decision case circumstance tribunal decided proceed decision without taking step obtain comment relevant nomination approved follows applicant meet requirement cl 186 223 2 consequently cl 186 223 met whole applicant sought satisfy criterion subclass 186 visa temporary residence transition stream claim made respect visa stream requirement must met person seeking visa temporary residence transition stream met decision review must affirmed decisionthe tribunal affirms decision grant applicant employer nomination permanent class en visa r skarossenior memberattachment a186 223 1 position application relates position nominated application approval seek meet requirement subregulation 5 19 3 b relation applicant identified holder subclass 457 visa c relation declaration mentioned paragraph 1114b 3 schedule 1 made application grant visa 2 minister approved nomination 3 nomination subsequently withdrawn 3a either adverse information known immigration person made nomination person associated person b reasonable disregard adverse information known immigration person made nomination person associated person 4 position still available applicant 5 application visa made 6 month minister approved nomination

1005808 [2012] MRTA 228 (30 January 2012).txt

1005808 2012 mrta 228 30 january 2012 last updated 6 february 20121005808 2012 mrta 228 30 january 2012 decision recordapplicant mr gurbakshish singhmrt case number 1005808diac reference clf2010 66134 clf2010 81676tribunal member jan speirsdate 30 january 2012place decision brisbanedecision tribunal affirms decision grant applicant student temporary class tu visa statement decision reasonsapplication reviewthis application review decision made delegate minister immigration citizenship refuse grant applicant student temporary class tu visa unders 65of themigration act 1958 act applicant applied department immigration citizenship visa 5 may 2010 delegate decided refuse grant visa 22 june 2010 notified applicant decision letter dated 21 june 2010 delegate refused visa application basis applicant genuine applicant entry stay student satisfy requirement cl 572 223 schedule 2 themigration regulation 1994 regulation applicant applied tribunal 15 july 2010 review delegate decision tribunal find delegate decision mrt reviewable decision 338 2 act tribunal find applicant made valid application review 347 act relevant lawat time visa application lodged student temporary class tu visa contained number subclass item 1222 schedule 1 regulation applicant apply student subclass granted particular case depends upon type course applicant enrolled offer enrolment principal course subclass type course specified minister r 1 40a see cl 570 232 571 232 572 231 573 231 574 231 575 231 schedule 2 subclass 576 approval course ausaid minister defence minister seepart 576of schedule 2 r 1 40a minister must specify instrument type course subclass student visa except subclass 576 ausaid defence sector time applicant applied visa enrolled diploma course basis delegate assessed application primarily criterion subclass 572 visa however time tribunal decision evidence applicant enrolled course tribunal ass applicant criterion subclass 572 vocational education training sector visa consider whether might meet criterion student visa subclass criterion grant subclass 572 visa set inpart 572of schedule 2 regulation issue present case whether applicant meet criterion cl 572 231 criterion requires time decision theapplicant enrolled subject current offer enrolment course study force relevant time clause 572 231 state 572 231the applicant enrolled subject current offer enrolment course study aprincipal course b type specified subclass 572 visa minister gazette notice made regulation1 40a ii force time application made similar criterion appears subclass 570 cl 570 232 571 cl 571 232 573 cl 573 231 574 cl 574 231 575 cl 575 231 claim evidencethe tribunal department file relating applicant tribunal also regard material referred delegate decision material available range source backgroundthe applicant first entered australia holder subclass 572 vocational education training sector visa 4 january 2008 holder visa applicant undertook certificate iii course retail baking may 2008 august 2009 5 may 2010 applicant applied subclass 572 visa indicating confirmation enrolment coe number 3f806b35 course study proposed undertake diploma business management course 10 may 2010 29 september 2010 21 june 2010 department delegate refused visa application finding applicant satisfy regulation 572 223 2 b applicant provided evidence financial capacity support australia would appear delegate made typographical error referring clause 572 223 2 b relevant regulation force time applicant visa application clause 572 223 2 copied extract delegate decision review applicationon 15 july 2010 applicant registered migration agent lodged application review department delegate decision copy delegate decision attached review application applicant nominated authorised representative receive correspondence connection review behalf 21 november 2011 tribunal wrote authorised representative acting behalf applicant advising considered material relating application unable make favourable decision information alone tribunal invited applicant give oral evidence present argument hearing 15 december 2011 applicant advised attend hearing postponement granted tribunal may make decision case without notice letter sent applicant address authorised representative provided tribunal applicant connection review response invitation received tribunal tribunal confirmed letter dispatched letter date facsimile confirmation correct transmission received tribunal applicant appear tribunal day time place scheduled appear submitted information document support review application tribunal particular applicant provided evidence currently enrolled subject current offer enrolment course study principal course contact tribunal regarding failure attend hearing circumstance pursuant s362b act tribunal decided make decision review without taking action enable applicant appear tribunal information contained prism database information indicates applicant enrolled course study time tribunal decision 30 december 2011 tribunal wrote representative authorised behalf applicant inviting applicant comment respond certain information pursuant 359a act put following writing application review made relation decision refuse grant student temporary class tu visa tribunal note appear scheduled hearing 15 december 2011 however conducting review tribunal required themigration actto invite comment respond certain information tribunal considers would subject comment response reason part reason affirming decision review please note however tribunal made mind information particular information information provider registration international student management system prism database maintained department education employment workplace relation indicates currently enrolled offer enrolment student type course specified minister accordance themigration regulation information relevant review indicates meet essential requirement subclass 572 student temporary class tu visa requirement time tribunal decision enrolled offer enrolment student type course specified minister accordance themigration regulation tribunal relies information may affirm decision refuse application visa invited give comment respond information writing comment response received tribunal by27 january 2012if comment response language english must accompanied english translation accredited translator cannot provide written comment response by27 january 2012 may ask tribunal extension time provide comment response make request must received tribunal before27 january 2012and must state reason extension time required tribunal carefully consider request extension time advise whether extension granted tribunal receive comment response within period allowed extended tribunal may make decision review without taking action obtain view information also lose entitlement might otherwise themigration actto appear tribunal give evidence present argument question please contact applicant provided response comment tribunal made request extension time finding reasonsto successful application subclass 572 visa applicant required meet criterion set inpart 572of schedule 2 regulation crucial time decision requirement applicant give evidence enrolled subject current offer enrolment cl 572 231 issue dispute time delegate decision related financial capacity requirement schedule 5a required cl 572 223 time delegate decision applicant enrolled registered course provided coe principal course specified subclass 572 tribunal find coe longer current course completion date 29 september 2010 applicant provided coe relating applicant undertaking current course study acceptable course time decision evidence prism database applicant currently enrolled course study evidence failure electronic transmission prevented education provider sending coe time tribunal decision accordingly applicant meet clause 572 231 purpose subclass 572 visa applicant also meet equivalent criterion visa subclass 570 571 573 574 575 circumstance tribunal unable deal financial capacity requirement absence evidence enrolment registered course basis tribunal find applicant given evidence accordance requirement cl 572 231 failure meet requirement mean application cannot succeed regard subclass 576 applicant produced evidence ausaid student defence student term defined regulation applicant made claim produced evidence meet requisite criterion subclass 580 student guardian visa conclusionsas tribunal found applicant meet essential requirement cl 572 231 evidence provided tribunal could satisfied applicant meet criterion student temporary class tu visa subclass decision review must affirmed decisionthe tribunal affirms decision grant applicant student temporary class tu visa jan speirsmember

Rees v Bailey Aluminium Products Pty Ltd [2006] VSC 360 (29 September 2006).txt

rees v bailey aluminium product pty ltd 2006 vsc 360 29 september 2006 last updated 21 november 2006in supreme court victorianot restrictedat melbournecommon law divisionno 7149 2002gary reesplaintiffvbailey aluminium product pty ltdbarry phillipsdefendantthird party judge king jwhere held melbournedate hearing 7 september 2006date judgment 29 september 2006case may cited rees v bailey aluminium product pty ltdmedium neutral citation 2006 vsc 360 cost application set aside verdict jury application dismissed appearance counselsolicitorsfor plaintiffmr r mcgarvie scwith mr ingramclark toopfor defendantfor third partymr p scanlon c mr j gortonmr reidhall wilcoxrigby cookeher honour introduction1 18 july 2006 personal injury trial jury commenced trial 12 day jury retired consider verdict 2 august 2006 jury asked answer following question drafted counsel 1 negligence part defendant cause plaintiff injury loss damage 2 yes question 1 amount ass plaintiff damage 3 yes question 1 contributory negligence part plaintiff cause injury loss damage 4 yes question 1 3 percentage equitable plaintiff damage reduced regard share responsibility injury loss damage 5 yes question 1 negligence part third party cause plaintiff injury loss damage 6 yes question 1 5 percentage equitable third party contribute damage defendant must pay plaintiff regard extent third party responsibility plaintiff injury loss damage 2 2 august 2006 jury returned verdict answering first question accordingly court seek answer remaining question jury discharged counsel defendant moved judgment accordance jury verdict order plaintiff pay defendant cost taxed third party also moved cost third party taxed paid defendant discussion application bullock sanderson order conclusion discussion court indicated would enter judgment defendant third party make order plaintiff pay cost defendant would reserve issue third party cost chance examine authority relation type order would appropriate 3 court asked counsel plaintiff required time prepare argument relation third party cost certification transcript indicated time would appropriate directed written submission provided respect question subsequent discussion following passage occurred page 1174 following mr mcgarvie honour would request honour reserve formal entry judgment issue determined honour reason mr mcgarvie caution honour honour verdict mr mcgarvie verdict circumstance cost need addressed anyway would submit haste respect need formally enter judgment nothing going alter monday whenever going finally dealt following written submission circumstance formal judgment would case ordinarily deal question cost certification forth appropriate reserve entry judgment main proceeding third party proceeding loose end tied honour honour anyone disagree mr scanlon yes honour surprise mr scanlon mr scanlon time run want appeal mr mcgarvie time run want appeal happens cost affect appeal want appeal appeal honour sorry follow mr scanlon saying enter judgment today time run relation appeal said suspect trying say question cost affect appeal want appeal appeal say enter judgment today honour anything adversely affected enter judgment tuesday next week mr scanlon yes want judgment entered sic u accordance jury verdict honour asking anything adverse occur defendant third party know verdict judgment entered determined issue cost adverse mr scanlon honour plea got nothing say 4 matter adjourned 9 30 tuesday 8thof august 2006 argument determination cost written submission ordered supplied monday 7 august 2006 submission received date related issue cost 5 resumption hearing 8 august 2006 counsel plaintiff made application rule 47 02 3 direct trial without jury basis trial judgment entered course result application plaintiff previous hearing judgment yet entered application foreshadowed defendant third party stage previous day notification given court application6 plaintiff seek pursuant rule 47 02 3 supreme court rule direct trial matter heard without jury decide case basis evidence led trial presided give judgment accordingly submissions7 submission plaintiff respect argument put relatively short compass submit rule 47 02 3 supreme court rule permit court intervene stage proceeding including verdict trial determines appropriate course discharge jury decide matter 8 basis upon plaintiff submits court act conduct senior counsel defendant poisoned well justice way plaintiff receive fair trial 9 conduct complained related question asked said theatrical behaviour counsel defendant failure put certain matter witness raised witness 10 defendant submission respect matter also put short compass defendant submits application made merely plaintiff unhappy verdict situation avenue pursue deal verdict jury submits although trial term judgment entered trial term verdict returned jury discharged 11 defendant submits plaintiff view evidence fit go jury question negligence issue contributory negligence could sought leave movenon ostante veredicto submitted plaintiff view trial prejudiced behaviour counsel defendant moved prior verdict jury discharge jury delivery verdict judge 12 counsel third party submits case tried jury verdict obtained late plaintiff make application pursuant rule 47 02 3 court discharge jury determine verdict 13 counsel submits behaviour mr scanlon c would cause discharge jury stage proceeding earlier stage proceeding finally behalf third party submitted remedy plaintiff dissatisfaction verdict jury lie elsewhere appeal court appeal decisiona law14 set relevant order rule civil procedure mode trial47 02 1 proceeding commenced writ founded contract including contract implied law tort including proceeding damage breach statutory duty shall tried jury plaintiff writ defendant notice writing plaintiff prothonotary within 10 day last appearance signifies plaintiff defendant case requires desire proceeding tried b proper jury fee paid 2 proceeding shall tried without jury unless court otherwise order 3 notwithstanding significance paragraph 1 court may direct trial without jury opinion proceeding circumstance tried jury 4 trial jury shall jury six 15 plaintiff relied upon decision court appeal inaltmann v dunning 1 andherald weekly time bolt v popovic 2 plaintiff submitted supported argument rule 47 02 3 cease effect even jury discharge 3 plaintiff particularly relied upon passage decision warren aja inherald weekly time v popovic 4 wherein honour referred remark hedigan j inaltmann v dunningwith approval 16 law relation rule prior decision inaltmann v dunningandherald weekly time v popovic discussed decision inprestinezi v steel tank piper consolidated pty ltd 5 decision full court determined trial judge reserved leave plaintiff movenon obstante veredictowas obliged enter judgment accordance jury answer question 17 case issue raised trial prior verdict evidence upon jury could find plaintiff guilty contributory negligence question one question left jury verdict found plaintiff guilty contributory negligence counsel plaintiff moved judgment whole amount assessed jury plaintiff damage irrespective finding jury honour trial judge granted application 18 court examined history law concluded absence binding authority provide compelling reason concluding better practice trial judge persuaded evidence jury could find contributory negligence plaintiff either reserve leave movenon obstante veredictoand take jury verdict direct jury answer question favour plaintiff would accord practice followed exception jury action court sincehumphrey v collier supra least recent time opinion procedure taking jury verdict thereafter without leave reserved entertaining motion judgment contrary warranted authority desirable one 6 court trial judge accepted general special verdict jury answered question submitted discharged power judge give judgment inconsistent verdict finding jury power remains give judgment directly instead directing obtaining verdict giving judgment jury finally given verdict finally authorised entry verdict consistent finding trial judge may however consent party disregard jury verdict finding give contrary judgmentedmond weil incorporated v russell supraat p 46phillips v ellinson bros pty ltd supraat pp 229 239 practice corresponds common law trial judge verdict without dissent hears application defendant leave move judgment notwithstanding verdict raise considers grant leave party treated impliedly consenting course bound leave given 7 19 inaltmann v dunning 8 trial conducted judge jury conclusion evidence retirement jury verdict plaintiff applied pursuant rule 47 02 3 supreme court rule order directing trial judge alone application opposed counsel defendant honour discharged jury without verdict proceeded determine trial power exercise discretion discharge jury reviewed full court 20 hedigan j member agreed stated whatever precise meaning rule preceded 1986 rule form r 47 02 3 creates power invests judge discretion direct trial without jury form opinion circumstance tried jury rule 47 02 1 establishes right jury procedural requirement followed clearly however manner expression r 47 02 3 designed excise dispense old rule alteration increment complication investing court broadest possible unfettered discretion direct trial without jury formed opinion tried jury enlarged power discretion breadth language 47 02 3 coupled self evident departure intricacy elaboration english rule former victorian rule reinforces construction intended power discretion wide enough dispense jury trial trial discharge 9 21 view supported clarified honour fullagar j reason concurring decision hedigan j said foregoing written intention providing support conclusion member court r 47 02 3 authorises trial judge motion discharging jury middle jury trial thereupon direct whole case shall tried upon evidence including evidence already given stage 10 22 recent decision court issueherald weekly time v popovic 11 decision relating defamation case trial judge reservednon obstante veredictothe question whether certain defence matter jury matter trial judge matter law reservation issue made despite objection defendant court determining whether question capable reservation manner light objection gillard aja defined issue court dealing case follows seen issue appeal indeed narrow one learned trial judge power reserve liberty plaintiff move judgment notwithstanding verdict jury face opposition defendant learned trial judge reserved leave hence complied principle stated inprestinenzi scase reserved leave entitled consider motion judgment contrary jury verdict wrong reserving leave objection honour questioned practicality issue given breach rule affect jurisdiction court enter judgment notwithstanding jury verdict one asks question practical use day age reservation depend upon party consenting party consent judge cannot reserve right 23 honour gillard aja finally determined trial judge reserved right party move judgment notwithstanding jury answer question reservation authorised consider motion accordance authority followed course despite opposition defendant authority suggested consent others contrary rule opinion authorised reserve question despite lack consent opinion learned trial judge accord rule represented common sense practical approach entry judgment thing turned argument concerning various defence took excess three day honour reserved judgment better administration justice time care taken judicial officer conclusion rather making hasty judgment pressure may result error opinion learned trial judge accordance rule court clearly jurisdiction enter judgment notwithstanding jury verdict lack consent appellant vitiating factor rule justified course adopted conclusion accord common sense apparent inskeate v slater ltdand prompted gavan duffy j observation inhumphrey v collier 24 winneke p warren aja agreed decision honour warren aja stating view trial judge need consent party even require issue raised party potentially capable reserving issue motion 25 accordingly opinion nothing authority referred upon plaintiff relies entitles disregard verdict jury substitute verdict plaintiff asked reserve right matter argued subsequent verdict jury would undoubtedly power confident would exercised power opinion plaintiff fact asking discharge jury basis incapable bringing fair impartial verdict according evidence would certainly least considered application 26 need decide matter whether conduct proceeding counsel defendant prejudiced well justice make trial unfair finally determine matter matter fairness counsel involved proceeding view appropriate say something matter raised plaintiff respect issue comment brief intend go allegation complaint made respect counsel conduct case say would set aside verdict jury basis trial robust procedure matter strongly contested party counsel plaintiff made numerous objection either upheld dismissed theatrics counsel referred plaintiff surely unexpected trial one appealing jury theatrics went far objection taken objection upheld counsel defendant made clear jury done appropriate equally charge jury made similar reference inappropriateness behaviour told jury put matter like one side 27 verdict jury view clearly open evidence rely upon total rejection evidence third party submitted plaintiff plaintiff chose join third party defendant choice issue whether ladder negligently manufactured make inherently unsafe could unknowingly overextended whether overextended third party result deliberate misuse matter would occupied mind jury deliberation 28 clear jury accept balance probability ladder manufactured manner defect make inherently unsafe unfit purpose reason ability able unknowingly overextended two expert called gave contradictory view jury entitled prefer evidence one 29 behaviour counsel conducting strongly fought robust trial opinion extend line make unfair trial 30 issue cost find reason plaintiff indemnify defendant cost third party entirely reasonable appropriate defendant join third party action 31 accordingly enter judgment defendant direct third party claim struck order plaintiff pay taxed cost defendant defendant pay taxed cost third party plaintiff indemnify defendant taxed cost third party certify transcript proceeding 1 1995 vicrp 41 1995 2 vr 1 2 2003 vsca 161 2003 9 vr 1 3 paragraph 15 plaintiff submission reply oral written submission defendant third party rule 47 02 3 application 4 supra para 482 487 5 1981 vicrp 42 1981 vr 421 6 supra p 437 7 supra p 440 8 1995 vicrp 41 1995 2 vr 1 9 supra p 17 10 supra p 5 11 ibid 2003 vsca 161 2003 9 vr 1

R v. Lester [2007] QSC 229 (3 September 2007).txt

r v lester 2007 qsc 229 3 september 2007 last updated 13 october 2009supreme court queenslandcitation r v lester 2007 qsc 229parties queen respondent vjim lester applicant defendant file indictment 1015 2006division trial divisionproceeding application exclude evidencedelivered 3 september 2007delivered supreme court brisbanehearing date 19 20 21 22 june 2007judge wilson jcatchwords criminal law evidence relevance particular case defendant allegedly procured another person murder ex wife whether evidence quality relationship deceased defendant including deceased fear defendant relevant admissibleevidence admissibility relevancy hearsay particular case defendant object evidence witness deceased told whether statutory exception hearsay rule found in 93bof theevidence act 1977 qld applycriminal law evidence judicial discretion admit exclude evidence prejudicial evidence particular case whether evidence excluded exercise judicial discretionevidence act 1977 qld 93b 98 130evidence act 1995 nsw 65evidence act 1995 cth 65justices act 1886 qld 111r v ambrosoli 2002 nswcca 386 2002 55 nswlr 603 followedr v anderson 2000 vsca 16 2000 1 vr 1 followedr v clark 2001 nswcca 494 2001 123 crim r 506 citedr v frawley 1993 69 crim r 208 citedr v glattback 2004 qca 356 citedr v gojanovic 2 2002 vsc 118 2002 130 crim r 179 citedr v olasiuk 1973 6 sasr 255 citedr v pfennig 1995 hca 7 1995 182 clr 461 citedr v raye 2003 qca 98 citedr v ritterunreported new south wale court criminal appeal gleeson cj handley ja hulme j 31 august 1995 citedr v thomas 1970 vicrp 87 1970 vr 674 followedwilliams v r 2000 fca 1868 2000 119 crim r 490 followedwilson v r 1970 hca 17 1970 123 clr 334 followedcounsel j pappa applicant defendantr martin sc respondentsolicitors legal aid queensland applicant defendantdirector public prosecution queensland respondent 1 wilson j defendant jim lester charged murder wife ingrid lester 19 november 2002 applied ruling admissibility certain category evidence liability pursuant 7 1 criminal code 2 mr lester killed one kinsella stabbed cut throat kinsella pleaded guilty murder defendant alleged procured kinsella murder liable murder pursuant 7 1 criminal code outline fact 3 deceased defendant separated november 2001 formed relationship alasdair morrison 4 13 14 december 2001 defendant assaulted deceased 5 14 december 2001 deceased signed application domestic violence order defendant returnable 20 december 2001 6 christmas day 2001 defendant attempted murder morrison taken custody 7 10 april 2002 15 year old son troy seriously injured motor bike accident remained hospital 18 april life support machine turned hospital deceased taken prison visit 16 april 18 april party decision turn life support machine 8 defendant released bail condition live victoria 9 6 june 2002 deceased swore affidavit matrimonial proceeding federal magistrate court 10 18 june 2002 deceased found three large black bag containing marijuana plant back yard hervey bay three day later morrison residence brisbane police simultaneously raided residence deceased residence receiving information 30 kg cannabis taken pialba nothing found 11 committal proceeding defendant arising incident 13 14 december 2001 took place 16 july 2002 12 16 november 2002 defendant travelled victoria queensland breach bail condition met kinsella border new south wale kinsella drove hervey bay back brisbane border left car 13 19 november 2002 kinsella killed deceased application exclude evidence 14 application filed defendant contains schedule listing 26 category evidence sought excluded prosecutor defence counsel agreed evidence certain category would led namely category 11 12 18 19 20 25 agreement passage material remaining category consider category passage evidence identified still issue pre trial hearing relationship evidence evidence act 1977 qld 93b 15 much argument related representation made deceased two recurring question whether amounted relationship evidence ii whether admissible pursuant tos 93bof theevidence act 1977 qld question whether court exclude evidence exercise discretion 16 may helpful discus general principle turning challenged evidence 17 relevance keystone admissibility wilson v r 1 barwick cj said

Le, Van Hai [1999] MRTA 642 (8 November 1999).txt

le van hai 1999 mrta 642 8 november 1999 last updated 14 december 1999mrta 642visa applicant thai loc lereview applicant van hai letribunal migration review tribunalpresiding member robin huntmrt file number n98 01695dima file number f96 048892date decision 8 november 1999delivered 8 november 1999at sydneydecision tribunal remit decision refusing grant preferential relative migrant class ay subclass 104 preferential family visa applicant direction meet definition orphan relative purpose subclass catchword orphan relativestatement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural affair department detail follows visa applicant detail mr thai loc le name dob sex nationality male 26 october 1987vietnamdecision type visa refusalvisa class sub class preferential relative migrant class ay subclass 104 preferential familydate visa application 22 april 1996date primary decision 04 august 1997date miro decision 29 may 1998jurisdiction standing2 application review lodged immigration review tribunal 17 july 1998 became application review migration review tribunal operation section 41 themigration legislation amendment act 1 1998on 1 june 1999 application review validly made section 338 act go decision reviewable tribunal complies section 347 go standing review applicant review applicant mr van hai ledate review application 17 july 1998relationship visa applicant unclelegislation visa criterion policy 3 themigration act 1958 amended act themigration regulation 1994 regulation provide different class visa government policy guideline aid interpretation application prescribed criterion visa policy guideline set procedure advice manual pam 3 issued department immigration multicultural affair 4 reaching decision tribunal bound act regulation applies relevant government policy lawful general policy guideline applied tribunal unless cogent reason contrary general policy direction issued minister pursuant section 499 act applied wherever relevant see generallyre drake minister immigration ethnic affair 2 1979 aata 179 1979 2 ald 634andali v minister immigration local government ethnic affair 1992 fca 453 1992 38 fcr 144

Def5, Abc5 [2003] MRTA 7605 (11 November 2003).txt

def5 abc5 2003 mrta 7605 11 november 2003 last updated 8 january 2004 2003 mrta 7605catchwords review visa refusal bridging e class visa primary criterion metvisa applicant tribunal migration review tribunalpresiding member michael northcottmrt file number n03 07468dept file number clf2001 47154date decision 11 november 2003at sydneydecision tribunal affirms decision review finding visa applicant entitled grant bridging e class visa andthe tribunal affirms decision review request security tribunal directs information would identify applicant including information family friend associate published undersection 378of themigration act 1958 public interest identifying person made application refugee status mean decision published name identifying material must removed modified published version decision statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural indigenous affair delegate visa applicant representative faxed bridging e class visa application department 17 05 hr 27 october 2003 delegate sighted application 28 october 2003 delegate decision refuse grant visa made 30 october 2003 jurisdiction standing2 visa applicant lodged application review tribunal 31 october 2003 application review decision refuse visa section 338 4 act review decision regarding security paragraph 4 02 4 f regulation decision reviewable tribunal application review properly made combined lodgement person standing apply review legislation policy3 themigration act 1958 act various regulation made act principally themigration regulation 1994 regulation provide different class visa criterion grant visa reaching decision tribunal bound act various regulation written direction issued minister section 499 act matter may subject policy found publication theprocedures advice manual 3 pam3 themigration series instruction msis produced department immigration multicultural indigenous affair department tribunal required regard policy apply unless cogent reason departing policy 4 tribunal power affirm vary set aside decision refuse grant visa also power remit application visa remittal may accompanied direction visa applicant meet one criterion visa matter minister delegate consider remaining criterion review tribunal generally limited consideration whether visa applicant meet one essential criterion application remitted decision affirmed basis 5 criterion policy immediately relevant review legislation item 1305 schedule 1 regulationspart 050of schedule 2 regulationsschedule 8 regulationspolicy msi 350 bridging visa overview msi 369 bridging e visa subclass 050 legislative framework guideline case jiang v minister immigration multicultural affair 2001 fca 282chen v minister immigration multicultural affair 2001 fca 285lin v minister immigration multicultural affair 2001 fca 283naerecoko vv minister immigration multicultural affair 2001 fca 730tennakoon v minister immigration multicultural affair 2001 fca 615applicant vaan 2001 v minister immigration multicultural affair 2002 fca 1976 intennakoonandapplicant vaan federal court set correct approach taken determining application bridging e class subclass 050 visa tribunal adopts approach making determination 7 inapplicant vaanthe federal court outlined step required decision maker see expansion said intennakoon step 1 decision maker must decide condition ought imposed grant visa 2 next condition imposed decision maker must ask whether complied standing alone without security taken 3 answer yes security imposed hand answer decision maker must proceed next question 4 condition complied security taken 5 answer visa ought granted criterion set subcl 050 223 met answer yes security required decision maker must ass appropriate amount type security imposed 6 security required decision maker must see whether lodged lodged visa application rejected subcl 050 224 satisfied lodged provided relevant criterion met visa must granted 8 tribunal generally regard regulation stood time visa application however subsequent amendment may apply circumstance 9 applicant bridging e visa subclass 050 general must satisfy primary criterion set inpart 050of schedule 2 regulation date application date decision 10 summary criterion met tribunal satisfied applicant unlawful non citizen holder bridging e class visa subclause 050 211 1 applicant eligible non citizen kind set subregulation 2 20 7 8 9 10 11 subclause 050 211 2 applicant meet requirement one subclauses 2 3 3a 4 4aa 4a 5 5a 6 6a 7 8 9 clause 050 212 requirement clause 050 212 include following applicant making subject acceptable arrangement depart australia applicant made application apply within period allowed minister tribunal substantive visa kind granted applicant australia applicant outstanding application merit judicial review relation substantive visa applicant outstanding request minister one number prescribed request applicant criminal detention bridging e visa granted applicant abide condition imposed clause 050 223 condition mandatory condition found schedule 8 regulation security requested lodged clause 050 224 evidence11 tribunal tribunal case file n03 07468 department case file clf2000 47154 disclose following 12 visa applicant arrived australia 13 august 1998 holder subclass 456 visa visa valid 13 september 1998 13 11 september 1998 visa applicant lodged another business visa application granted automatic bridging visa remained valid 1 october 1998 attached visa condition 8112 holder must engage work australia might otherwise carried australian citizen australian permanent resident business visa application refused 30 june 1999 14 22 september 2000 visa applicant lodged application protection visa granted associated bridging c visa day visa subject condition 8101 29 september 2000 department refused protection visa application refugee review tribunal affirmed department decision 22 march 2001 associated bridging c visa ceased 26 april 2001 visa applicant continued remain australia 15 20 june 2001 visa applicant joined x class action granted bridging e visa 21 august 2001 basis member ongoing class action attached visa condition 8101 work 16 visa applicant class action application dismissed 20 june 2003 associated bridging e visa ceased 18 july 2003 visa applicant continued remain australia 17 27 august 2003 visa applicant located industrial unit suburb c allegation made department visa applicant operating floor sanding business unit living warrant return 28 august 2003 discloses 21 15 hr departmental officer approached building departmental officer identified signalled visa applicant come downstairs officer sought allowed premise visa applicant respond repeated request permit entry police requested give assistance entry building obtained 30 minute later meanwhile visa applicant made way onto roof building visa applicant comply repeated request made police interpreter come roof nsw fire brigade requested give assistance visa applicant located fire brigade officer located near air conditioning unit secreted roof cavity visa applicant failed respond question detained pursuant section 189 act 18 post location interview villawood immigration detention centre 29 august 2003 visa applicant recorded stated following arrived australia business visa 1998 valid 1 month genuine passport country c know valid passport agent worked australia kitchen hand 3 year aware permission work remained australia visa expired girlfriend australia cannot depart australia girlfriend australia intends purchase ticket city b friend owe total 30 000 19 visa applicant also stated sort serious matter outside detention centre willing disclose matter also stated willing depart australia 20 visa applicant lodged application bridging e visa way facsimile facsimile show transmission time date 17 06 hr 27 october 2003 document signed departmental officer sighted 28 october 2003 form stated applied refugee visa application review refusal unsuccessful requesting bridging e visa departure ground attached copy valid travel document ticket departure 19 november 2003 21 visa applicant brother mr permanent resident australia provided letter support state would visa applicant guarantor would lodge security department 22 30 october 2003 department refused grant visa applicant bridging e visa delegate found visa applicant met primary criterion given visa applicant evidenced intention depart australia however delegate satisfied basis visa applicant period unlawful stay australia breach condition past would depart australia would abide visa condition delegate remained unsatisfied likelihood compliance regardless financial security lodged accordingly visa applicant failed meet clause 050 223 050 224 23 31 october 2003 visa applicant lodged application review decision tribunal application form visa applicant stated departure arrangement satisfactory delegate decision made time 24 10 november 2003 tribunal sent visa applicant letter inviting provide comment interview hearing information tribunal considered would reason part reason affirming decision review essentially information remained australia unlawfully worked without permission uncooperative attempted abscond detained 25 hearing held 11 november 2003 hearing visa applicant gave evidence brother mr visa applicant evidence may summarised follows confirmed outline immigration history given b intends leave australia 19 november 2003 c wish marry leaf planned marry 24 august 2003 wife travel country c apply come australia spouse wish collect 30 000 owed leaf e departmental officer arrived 27 august 2003 say use interpreter ask open door f frightened officer many officer present made lot noise bright light g hear police interpreter asking come h came saw police officer worked australia without permission worked every friday 3 year 26 mr gave evidence could lodge security 20 000 would ensure visa applicant leaf australia finding reasons27 tribunal satisfied application visa first sighted departmental officer 28 october 2003 decision refuse visa made 30 october 2003 tribunal satisfied decision made within 2 day sighting visa application officer decision therefore made within time reviewable 28 time visa application lodged class contained following subclass subclass 050 bridging general subclass 051 bridging protection visa applicant subclass respect claim advanced subclass 050 evidence suggest visa applicant meet key criterion subclass tribunal find visa applicant eligible grant subclass 051 visa 29 tribunal satisfied visa applicant made valid application bridging visa meet criterion clause 050 211 visa applicant unlawful non citizen eligible non citizen kind set subregulation 2 20 7 11 30 tribunal must satisfied date primary application date decision clause 050 212 met criterion satisfied must established least one ground subclauses 050 212 2 9 met 31 time application visa applicant sought establish meet subclause 050 212 2 claim making acceptable arrangement depart australia 32 acceptable arrangement vary case tribunal regard policy guideline point set msi 369 guideline suggest number factor may taken account whether applicant possession valid travel document could obtain one within reasonable period whether applicant ticket travel acceptable destination booking reservation depart australia could obtain one within reasonable period applicant capacity travel eg health consideration officer satisfied applicant depart arranged 33 considering whether visa applicant making subject acceptable arrangement depart tribunal regard federal court decision carr j ofjiang v minister immigration multicultural affair 2001 fca 282andchen v minister immigration multicultural affair 2001 fca 285 carr j made similar determination decision inchen justice carr stated opinion deciding whether person making acceptable arrangement something case depart australia clearly error law consider person done date making arrangement seen continuing process view would make sense ass whether stage continuum person particular point time making acceptable arrangement without regard arrangement person already made arrangement remained made 34 later case ofnaerecoko v minister immigration multicultural affair 2001 fca 730 sackville j upheld tribunal application principle set chen 35 inlin v minister immigration multicultural affair 2001 fca 283 carr j considered whether proper tribunal consider visa applicant intention depart tribunal deciding whether visa applicant making subject acceptable arrangement depart australia carr j stated opinion tribunal deciding whether satisfied applicant making acceptable arrangement depart australia entitled consider whether applicant intention genuine fact case real arrangement let assumed paperwork formal arrangement made apparent applicant genuine intention carrying arrangement circumstance could clearly affect nature arrangement view extent respondent might satisfied acceptable 36 tribunal accepts visa applicant valid travel document tribunal accepts visa applicant paid ticket departure 19 november 2003 tribunal considers visa applicant evidence intends depart australia 37 visa applicant gave evidence circumstance surrounding detention 27 august 2003 evidence accord evidence warrant return dated 28 august 2003 visa applicant denies departmental officer identified visa applicant denies officer asked open door visa applicant stated hear police interpreter asking come came saw police officer tribunal accept evidence warrant return set clear detail step departmental officer took execution warrant detail return satisfies tribunal veracity tribunal accepts departmental officer identified tribunal satisfied officer repeatedly asked visa applicant allow enter premise tribunal satisfied police interpreter repeatedly asked visa applicant come roof tribunal satisfied visa applicant located fire officer cavity tribunal satisfied visa applicant failed answer question departmental officer 38 tribunal finding circumstance visa applicant detention satisfy tribunal visa applicant wished avoid detection finding together visa applicant admission knew without visa remain australia lead tribunal conclusion visa applicant wish remain australia prepared ignore immigration law order 39 given tribunal finding visa applicant wish remain australia prepared ignore immigration law order tribunal accept visa applicant evidence intends depart australia 19 november 2003 tribunal therefore find visa applicant intend depart australia tribunal accepts visa applicant good reason depart evidence wish marry seek spouse visa however evidence persuade tribunal alter determination visa applicant intend depart australia tribunal cannot give sufficient weight order 40 neither evidence mr lodge security 20 000 alter tribunal determination offer security indicates mr may believe visa applicant intends depart australia however tribunal reached different conclusion 41 tribunal satisfied time application visa applicant intends depart australia tribunal satisfied visa applicant made subject acceptable arrangement depart australia tribunal find visa applicant meet subclause 050 212 2 time application 42 evidence tribunal satisfied time application decision visa applicant made valid application apply within specified period substantive visa substantive visa kind granted australia provided subclause 050 212 3 tribunal find visa applicant meet subclause 050 212 3 time application 43 tribunal find merit review judicial review proceeding involving visa applicant underway tribunal find visa applicant meet subclauses 050 212 3a 050 212 4 050 212 4aa 050 212 4a 050 212 5 050 212 5a 050 212 9 time application 44 tribunal find visa applicant meet requirement subclauses 050 212 6 050 212 6a either time application decision requeste minister 45 tribunal find visa applicant criminal detention tribunal find visa applicant satisfy subclause 050 212 7 time application 46 tribunal find visa applicant holder bridging e class visa required subclause 050 212 8 tribunal find visa applicant satisfy subclause 050 212 8 time application 47 tribunal found visa applicant meet criterion subclauses 050 212 2 9 visa applicant meet criterion subclauses 050 212 2 9 time application meet subclause 050 212 1 clause 050 221 48 visa applicant meet criterion tribunal alternative affirm decision refusing grant bridging visa necessary tribunal determine whether visa applicant would abide condition would impose bridging visa one granted visa applicant satisfy clause 050 212 appropriate course affirm delegate request security decision49 tribunal affirms decision review finding visa applicant entitled grant bridging e class visa and50 tribunal affirms decision request security

Muench v McCue [2020] ACTCA 17 (17 April 2020).txt

muench v mccue 2020 actca 17 17 april 2020 last updated 20 april 2020supreme court australian capital territorycourt appealcase title muench v mccuecitation 2020 actca 17hearing date 6 august 2019decisiondate 17 april 2020before burn loukas karlsson wigney jjdecision see 131 132 catchword appeal accused convicted offence attempting capture visual data circumstance indecency invasion privacy conduct occurred two change room cubicle identity issue accused appealed finding magistrate primary judge offence proved beyond reasonable doubt whether miscarriage justice whether finding unreasonable supported evidence whether open whole evidence find beyond reasonable doubt accused guilty offence charged evidence considered whole capable supporting finding guilt beyond reasonable doubt evidence considered whole capable excluding alternative hypothesis open magistrate primary judge find offence proved beyond reasonable doubt miscarriage justice appeal dismissedlegislation cited crime act 1900 act 61b 1 magistrate court act 1930 act 208 1 b supreme court act 1933 act s 37o 2 37o 2 37o 2 ii 37o 2 iii 37o 3 case cited barca v queen 1975 hca 42 1975 133 clr 82edwards v queen 1993 hca 63 1993 178 clr 193m v queen 1994 hca 63 1994 181 clr 487peacock v king 1911 hca 66 1911 13 clr 619plomp v queen 1963 hca 44 1963 110 clr 234r v melrose 1989 1 qd r 572r v nguyen 2001 vsca 1 2001 118 crim r 479r v perera 1982 vicrp 91 1982 vr 901shepherd v queen 1990 hca 56 1990 170 clr 573the queen v baden clay 2016 hca 35 2016 258 clr 308parties dane christian muench appellant james christopher mccue respondent representation counselk ginges appellant jones respondent solicitorsmckenna taylor appellant act director public prosecution respondent file number actca 8 2019decision appeal court tribunal act supreme courtbefore mcwilliam asjdate decision 12 february 2019case title muench v mccuecitation 2019 actsc 20the court 1 2 november 2016 appellant mr danemuenchwas charged offence attempting capture visual data circumstance indecency invasion privacy contrary sub 61b 1 thecrimes act 1900 act alleged 26 october 2016 mr muench attempted use mobile phone film thecomplainantwhile trying clothes change room cubicle kmart store shopping centre tuggeranong australian capital territory 2 three day hearing magistrate court australian capital territory took place october 2017 february 2018 magistrate found offence proved mr muench filed notice appeal finding conviction formally entered sentence imposed appeal brought pursuant sub 208 1 b themagistrates court act 1930 act appeal appeal rehearing single judge supreme court 3 mr muench appeal unsuccessful 12 february 2019 primary judge found none eight ground appeal raised mr muench made crucially honour reviewed evidence magistrate rejected mr muench contention magistrate finding offence proved unreasonable supported evidence honour accordingly dismissed mr muench appeal 4 end matter 12 march 2019 mr muench filed notice appeal court appealing dismissal appeal primary judge 5 seen mr muench notice appeal contained number ground ultimately critical question raised appeal whether open whole evidence find beyond reasonable doubt mr muench guilty offence charged address issue ground appeal raised mr muench necessary court examine detail evidence magistrate together evidence adduced primary judge evidence hearing6 useful provide overview uncontentious fact outline critical factual issue descending detail evidence overview key factual issue

Atlas Copco Australia Pty Limited [2015] FWCA 1558 (6 March 2015).txt

atlas copco australia pty limited 2015 fwca 1558 6 march 2015 2015 fwca 1558fair work commissiondecisionfair work act 2009s 185 enterprise agreementatlas copco australia pty limited ag2015 331 atlas copco australia pty limited roy hill collective agreement 2015manufacturing associated industriescommissioner leemelbourne 6 march 2015application approval atlas copco australia pty limited roy hill collective agreement 2015 1 application made approval enterprise agreement known theatlas copco australia pty limited roy hill collective agreement 2015 agreement application made pursuant tos 185of thefair work act 2009 act made atlas copco australia pty limited agreement single enterprise agreement 2 satisfied requirement ofss 186 187and188as relevant application approval met 3 pursuant tos 205 2 act model consultation term prescribed thefair work regulation 2009is taken term agreement 4 agreement approved 6 march 2015 accordance 54 act operate 13 march 2015 nominal expiry date agreement 1 july 2018 commissionerprinted authority commonwealth government printer price code c ae412925pr561700 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

DXJ18 v Minister for Home Affairs [2019] FCA 1347 (15 August 2019).txt

dxj18 v minister home affair 2019 fca 1347 15 august 2019 last updated 21 august 2019federal court australiadxj18 v minister home affair 2019 fca 1347appeal dxj18 v minister home affair 2019 fcca 204file number nsd 350 2019judge burley jdate judgment 15 august 2019catchwords migration application extension time within appeal decision federal circuit court australia non appearance applicant hearing application dismissedlegislation federal court australia act 1976 cth 25 2b bb ii federal court rule 2011 cth r 36 03 case cited dxj18 v minister home affair 2019 fcca 204date hearing 15 august 2019registry new south walesdivision generalnational practice area administrative constitutional law human rightscategory catchwordsnumber paragraph 6counsel applicant applicant appear hearing solicitor first respondent mill oakley lawyersordersnsd 350 2019between dxj18applicantand minister home affairsrespondentjudge burley jdate order 15 august 2019the court order pursuant tos 25 2b bb ii thefederal court australia act 1976 cth application dismissed cost application made applicant set aside order 1 made absence matter placed docket justice burley note entry order dealt inrule 39 32of thefederal court rule 2011 revised transcriptburley j applicant aged 45 citizen china arrived australia 21 june 2009 student guardian subclass 580 visa subject condition 8534 31 march 2014 applicant lodged application protection visa refused delegate theministerfor home affair 22 december 2014 refusal subsequently upheld following merit review administrative appealstribunaland review jurisdictional error conducted federal circuit court australia fcca federal court australia 9 april 2018 applicant lodged request waiver condition 8534 refused delegate minister 4 june 2018 applicant applied fcca judicial review decision minister refuse waiver fcca considered dismissed application indxj18 v minister home affair 2019 fcca 204 applicant filed application extension time within appeal court extension time necessary applicant file notice appeal within 21 day required r 36 03 thefederal court rule 2011 cth present application filed 14 day later application accompanied affidavit support provides explanation lateness filing attache draft notice appeal contains following three proposed ground appeal department federal circuit court failed consider explanation supporting document support appeal believe legal error chinese citizen strong reason request waiver 8534 visa strong fear practice falun gong allowed china return home country apply subclass 602 department home affair federal court show concern waiver evidence think fairly treated day hearing applicant attempted file notice discontinuance court form submitted completed correctly asked file notice discontinuance correct form court done circumstance hearing remained matter called perhaps unsurprisingly applicant appear solicitor respondent submits circumstance application dismissed accordance 25 2b bb ii thefederal court australia act 1976 cth circumstance appropriate order make applicant entitlement apply order set aside made absence direct registrar list matter avoid another judge familiarising file accordingly order make 1 pursuant tos 25 2b bb ii thefederal court australia act 1976 cth application dismissed cost 2 application made applicant set aside order 1 made absence matter placed docket justice burley certify preceding 6 six numbered paragraph true copy reason judgment herein honourable justice burley associate dated 21 august 2019

R v Claxton [1999] NSWSC 653 (29 June 1999).txt

r v claxton 1999 nswsc 653 29 june 1999 last updated 13 july 1999new south wale supreme courtcitation r v claxton 1999 nswsc 653current jurisdiction common law divisionfile number 72314 99hearing date 29 june 1999judgment date 29 06 1999parties bruce alan claxton applicant regina respondent judgment dunford jlower court jurisdiction applicablelower court file number applicablelower court judicial officer applicablecounsel rd elli respondent crown solicitor mark rumore solicitor applicant se connor respondent crown catchword bail appeal conviction adjourned act cited bail act 1978decision application dismissed bail refused judgment supreme courtof new south walescommon law divisiondunford jtuesday 29 june 199972314 98 r v bruce alan claxtonjudgment application bail 1his honour application bail bruce alan claxton successful morning obtaining adjournment hearing appeal conviction receiving following trial jury sentenced penal servitude minimum term one year commencing 3 october 1998 additional term one year unless conviction set aside minimum term sentence expire 2 october year approximately three month time adjournment granted unlikely appeal heard also serving balance additional term pursuant order parole board expires 19 september 1999 applicant tell led believe whatever might mean granted bail matter parole board convene ass eligibility parole may successful may 2 applicant convicted presumption favour bail s 8 2 iii and9 2 b thebail act 1978 may nevertheless granted bail 13 however appellant court 30aaapplies bail granted unless established special exceptional circumstance exist justifying grant bail special exceptional circumstance held include fact bail granted whole substantial part sentence served appeal determined 3 also held special exceptional circumstance may found ground appeal certain succeed seer v wilson 1994 34 nswlr 1at 6 r v lance smith hunt cj cl 18 may 1993 4 certainly appeal prospect success regarded high true reason adjournment appeal morning way fault applicant reason counsel assigned legal aid commission ass prospect success appeal yet attended matter consideration namely informed daughter bianca raped weekend bianca seven year old life applicant wife separated commence divorce proceeding wish render support 5 even granted bail would couple week parole board could convened even minded release parole hand may entitled express view may entitled compassionate leave need visit daughter circumstance accept special exceptional circumstance exist granted bail served virtually whole sentence appeal heard necessarily entitle bail 6 becomes necessary consider criterion in 32including sub 1 c iii likelihood commit offence whilst liberty bail 7 applicant appalling record particularly offence nature extensive record offence dishonesty 1970 1984 sentenced twelve year penal servitude three count assault rob 8 since 1993 number offence involving driving unregistered uninsured motor vehicle whilst unlicensed also number dishonesty offence 9 20 january 1994 windsor local court convicted receiving 15 december 1995 redfern local court convicted good custody 5 march 1996 wollongong district court convicted larceny motor vehicle posse implement capable entering conveyance 10 15 april 1996 wollongong district court convicted two count receiving two assault one attempt steal 19 april 1996 blacktown local court convicted stealing last mentioned matter sentenced fixed term imprisonment twelve month commence 4 september 1996 released 3 september 1997 11 offence convicted subject appeal alleged committed 18 27 september 1997 three week release custody circumstance would concerned released bail would commit offence whilst bail would regard offence serious although involve physical violence sexual assault disrupt life people whose vehicle good taken removed 12 may persuaded grant bail brief assessment considered substantial ground appeal cannot find written submission filed obviously legal advice subject consideration legal representation granted ground appeal may well amended expanded relies appears three main ground firstly trial judge failed adequately explain jury onus proof element charge receiving secondly direction circumstantial evidence inadequate thirdly crown failed provide adequate proof horse float question stolen 13 see absolutely deficiency trial judge direction jury relation onus proof element charge receiving circumstantial evidence appear might called standard form adequate 14 relation proposed ground crown failed provide adequate proof article stolen considerable evidence owner horse float question distinguishing feature item stolen identified item horse float mr zaiter purchased appellant 15 regard ground appeal strong reasonably strong prospect success circumstance application dismissed bail refused 16 order hearing appeal expedited matter placed first available callover last updated 09 07 1999

Chris Kaperonis v Gio NSW [1996] NSWSC 128 (15 May 1996).txt

chris kaperonis v gio nsw 1996 nswsc 128 15 may 1996 chris kaperonis tutor leo kaperonis v government insurance office new south wales16729 87wednesday 15 may 1996in supreme court new south wale common law divisionbadgery parker j judgmenthis honour 22 february 1985 plaintiff chris kaperonis aged 11 year seven month crossing addison road marrickville near intersection shepherd street struck car insured defendant plaintiff sue damage respect injury allegedly sustained sue father tutor proceeding commenced infancy plaintiff proceeding continued father tutor plaintiff attained adulthood allegation disability made plaintiff accepted plaintiff mentally disabled person within meaning act liabilitythe defendant dispute negligence alleges contributory negligence part plaintiff evidence liability issue unfortunately sparse chiefly plaintiff inability recall much accident absence overseas insured driver defendant sought tender statement reliance upons 63of theevidence act 1995 respect application delivered separate judgment refusing plaintiff taken scene accident childrens hospital camperdown interviewed police later day police officer said tell happened plaintiff replied tried run across road parked car sudden car ran see many car sic 21 march 1985 plaintiff seen dr ann cooper whose opinion shall refer later gave history chris told coming home school friend lot car friend crossed road first get hurt got hurt never saw car light contemporary account accept reliable detail plaintiff evidence happening accident entertain similar reservation evidence father satisfied 60 yard away shepherd street time plaintiff commenced cross addison road reject particular assertion traffic travelling plaintiff right left addison road may blocked plaintiff view obscured plaintiff view insured driver travelling opposite direction satisfied vehicle travelling direction probability vehicle travelling slowly may indeed stationary time plaintiff passed satisfied plaintiff companion crossed road front plaintiff boy fact running reject evidence plaintiff father plaintiff walking preferring rely plaintiff said police find also running lagging behind school friend police investigation accident recorded exhibit seems somewhat cursory information might useful might expected found lacking particular width street appears addison road undivided carriageway providing one line parked car one line moving traffic direction far gathered police report plaintiff passed entirely across unmarked traffic lane vehicle coming right reached approximately centre lane traffic travelling opposite direction extent evidence police report coincides plaintiff oral evidence accept fact satisfied defendant driver negligent reach conclusion particularly evidence another boy ran across road plaintiff emerged defendant path evidence accept boy young school child uniform vicinity almost 3 30 pm driver city suburban road ought alert likelihood school child would road time statement taken mr peter karanikolas since deceased working nearby service station establishes screech brake tyre time impact infer driver see plaintiff virtually moment impact therefore conclude plaintiff entitled verdict however verdict must subject substantial deduction reason contributory negligence plaintiff light finding made passing line traffic path defendant vehicle plaintiff age ought reasonably aware risk behaving fashion however pointed mahoney ja innader v urban transit authority new south wale 1985 2 nswlr 501at 507 508 making assessment plaintiff conduct relevant regard inter alia two thing foresight child might expected show prudence may expected exercise fact child young relevant appreciation expected child risk inherent plaintiff le expected mature person prudence judgment expected child correspondingly le see eg mchale v watson 1966 hca 13 1966 115 clr 199at 212 think would reasonably appreciated child plaintiff age risk injury involved mahoney ja said innader child may expected appreciate quantum risk involved would expected know real danger injury distinct example mere possibility though might expected able appreciate fully consequence possible injury occurred would expected know injury could serious mahoney ja went prudence also relevant ordinary adult expected merely appreciate risk also prudence ie judgment decide undertake risk reasonable person would expose prudence also affected age experience show young child may appreciate existence danger may prudence judgment avoid think relevant deciding whether child guilty contributory negligence opinion child age plaintiff time accident might expected understand prudent hurry across road face coming traffic although may appreciated significance vehicle passed possibly obscuring driver view appreciation risk might expected exhibit measure prudence determining run risk regard age would ass contribution accident equivalent driver opinion appropriate apportion 20 fault plaintiff 80 driver reaching conclusion take account principle discussed case astalbot butt v holloway court appeal unreported 5 october 1990 cassar v government insurance office court appeal unreported 14 november 1990 gio v hare court appeal unreported 28 march 1991 case requiring consideration causative potency conduct party respectively degree departure party respectively standard care reasonable man plaintiff case reasonable child taken account also observation case extent obligation care cast upon driver driving area presence young child ought anticipated cotton v commission road transport tramway 1946 43 sr 66 68 69 mye v peter 1967 68 sr 298 mitchell v gio 1992 15 mvr 369 damages1 physical injuriesthe plaintiff father although opportunity observe respect limited effect directly behind plaintiff close enough see happened struck car accept evidence boy thrown air fell face roadway surface circumstance would surprising suffered severe injury fact find physical injury sustained time comparatively minor shall come moment detail taken ambulance royal alexandra hospital child discharged next day care parent plaintiff sustained bruise abrasion left cheek bruising left shoulder laceration right heel required four suture notwithstanding plaintiff continued complain frequent pain shoulder even present time satisfied evidence organic basis indeed 23 march 1985 plaintiff general practitioner dr aroney thought injury practically cleared find fact plaintiff made physical term complete recovery left cheek injury shoulder injury within month date accident similarly plaintiff complains continuing pain region left heel appear evidence dr guirgis saw december 1985 stage thickening retro tendinous bursa might represent sort mild post traumatic bursitis could source pain area dr guirgis gave indication likely prognosis condition medical evidence support continued existence organic source disability end 1985 certainly dr connelley november 1991 found none persuaded organic cause plaintiff continuing pain right heel find problem ceased exist organic problem within two three year accident plaintiff parent gave evidence plaintiff often complains pain back waist plaintiff said evidence chief pain main trunk body although say felt time accident injury back made complaint time seen dr guirgis first mention find back pain medical report dr donovan report 18 february 1993 presumably earlier complaint able produce x ray spine medical evidence appear x ray ordered dr donovan found continuing disability dr j connelley report 29 june 1993 plaintiff failed satisfy sustained back injury far serious plaintiff physical injury teeth upper left central incisor tooth avulsed upper right central incisor sustained minor damage upper left lateral incisor sustained significant crown fracture dr wilson report 23 december 1992 record complaint pain time two lower teeth report united dental hospital plaintiff seen 16 april 1985 provides support claim teeth also damaged accident satisfied injury dr buchanan reported state plaintiff teeth defendant dissent dr wilson view plaintiff requires future treatment preferred form treatment installation fixed four unit bridge approximate cost 4 000 find plaintiff requires treatment probability soon financial position accordingly include verdict full cost thereof without attempting discount present value bridge require replacement interval 12 15 year plaintiff life expectancy 49 year australian life table 1980 1982 reproduced luntz assessment damage 3rd edition p 556 allow cost three replacement deferred respectively 13 26 39 year using multiplier 530 281 149 respectively five percent table respective allowance 2 120 1 124 596 therefore allow future dental care total figure 7 840 accept evidence injury plaintiff teeth cause pain physical discomfort personal embarrassment affected manner speech doubt contributed considerably distress year immediately accident notwithstanding treatment carried united dental hospital mid 1985 degree discomfort associated mouth injury particularly discomfort eating continued present time taken account accordingly assessment general damage continue find short time future pending carrying dental treatment recommended dr wilson however extent pain discomfort result condition two lower central incisor teeth upon finding made matter compensation action final diagnosis recorded hospital time plaintiff discharge closed head injury plaintiff case particularised included allegation suffered organic brain damage understand plaintiff counsel trial seriously press claim although note specifically abandoned view plaintiff made good allegation organic brain damage reliable evidence loss consciousness although history given plaintiff father medical expert others occasion asserted quite lengthy variable period loss consciousness said nothing sort evidence say saw plaintiff hospital plaintiff come dizzy amount assertion father awareness boy conscious perhaps assumption part earlier unconscious police report give brief description plaintiff injury say nothing loss consciousness ambulance report record loc appears statement mr karanikolas went boy immediately accident evidently arrival ambulance boy unconscious stage responding spoken witness hospital surely would concerned ascertain whether loss consciousness given suggestion closed head injury record history hospital note also record focal neurological sign absence even fleeting loss consciousness evidence support probability brain damage occurred medical evidence evidence support opinion expressed consulting clinical psychologist mr goard regarded plaintiff performance battery psychometric test providing definite evidence plaintiff suffers significant degree brain damage view shared another consulting clinical psychologist m chadwick medical expert interpret mr goard result way mr goard unlike m chadwick seems benefit seeing plaintiff school report seems unaware plaintiff pre morbid iq test result school record show following result iq test prior accident 10 august 1981 verbal iq 54performance iq 87full scale iq 6922 february 1984 verbal iq 51performance iq 86full scale iq 67he tested education department accident mr goard testing follows 1 july 1986 verbal iq 66performance iq 88full scale iq 752 plaintiff present statein written submission plaintiff counsel summarised effect evidence plaintiff present state passage omitting argumentative assertion causation content adopt behaviour emotional reaction seriously disturbed depressed severely withdrawn friend stated want rarely go house go never alone miserable state unhappy often angry frustrated feel unable even simple task motivation try trouble sleeping mother stated often speaks laugh like idiot anti social behaviour anger frustration refusal speak except monosyllable culmination gradual emotional deterioration essentially stopped functioning eat sleep watch television emotionally unfit cope activity requires inter personal skill extremely withdrawn time unpleasant unco operative body language appearance manner speech reveal extreme limitation relating others reaction offer help appear hostile medical report reveal wish communicate want talk anyone doctor exception withdrawal inability unwillingness relate others render difficult anyone help prognosis thus extremely bleak discouraging plaintiff presentation court entirely consistent description totally apathetic totally passive almost nothing activity daily living become totally dependent parent particularly mother cross examined matter described headache dizziness cause inability look think evidence simply untrue although possible perception complaint physically disabled reason dizziness headache entirely odds concession commenced attend ashfield boy high school 1987 quite able travel school train walk necessary albeit relatively short distance end train journey capable thing required school displayed various physical skill appears plaintiff neurological state subject medical investigation several reference report seen existence report dr alastair corbett neurologist however evidence dr corbett adduced hesitation drawing inference evidence might given would assisted plaintiff case doubt insofar asserts physical disability kind evidence grossly exaggerated totally unreliable picture painted counsel submission set describes way behaves behaves thus different question plaintiff case include report psychiatrist assessment plaintiff report dr rodney milton containing comment plaintiff school report refer due course indication report dated 24 april 1993 doctor reported previously report acknowledges letter requesting additional comment however may passed doctor solicitor earlier stage particular indication dr milton ever seen plaintiff plaintiff history material available opinion may time diagnosis causation plaintiff state psychiatric material tendered behalf plaintiff limited brief note dr cassimatis saw 14 march 1985 report dr ann cooper dated 21 march 1985 9 april 1985 refer little later date psychiatric assessment presented defendant tendered series report dr j sydney smith first dated 13 march 1990 based upon consultation plaintiff 1 february 1990 subsequent report way commentary information provided time time summary view appears plaintiff aberrant behaviour attributable combination disordered personality intellectual limitation doubt read report support proposition plaintiff effectively unemployable 3 causationit plaintiff case symptom complains continued headache dizziness inability study learn personality change manifested display irritability aggression hostility even violence manifestation brain damage attributed emotional reaction accident consequent personality disorder compensable part plaintiff case additionally whatever direct effect accident may upon emotional state condition significantly aggravated reasonably foreseeable reaction parent injury consequence part case reliance placed majority decision court appeal innader v urban transit authority new south wale supra especially per samuel ja 504 mchugh ja 536 evaluate claim necessary trace detail history plaintiff since accident born australia 15 august 1973 greek parent trial parent required interpreter order give evidence seems language family home greek uncertain period 1978 1979 family sent child back greece give grounding greek language attended school academic year 1978 1979 presented ability adapt school environment perfect 10 well necessary maturity enrol primary school according certificate dated 15 june 1979 issued first pre school patras latter part 1979 first term 1980 apparently enrolled year one summer hill primary school 31 march 1990 commencement second term year one enrolled marrickville infant school school record appears dated november 1980 read non reader y1 spelling 3 25 christos developing confidence academic subject language still problem work generally untidy shown improvement dash work active watched term three happier outgoing attainment respect reading language art mathematics recorded weak average required repeat year one 1981 attainment year described average respect three criterion record read year one repeat 81 reading slow know single sound blend help double sound comprehension poor spelling poor improving language oral join activity intensive esl language weak need encouragement mathematics slowly improving presentation work much improved enjoys art craft sport december 1981 note made development well behaved quiet withdrawn open mouth speak improved lately quietly obstinate enjoys art craft general comment respect dated skill depressed greek spoken home 1982 completed year two rating average reading language art mathematics attainment summarised follows year two christos still reserved try participate hold back responds praise need lot theme repeated note progress 1983 year three july noted reserved rarely participates type discussion reading number poor november 1983 extremely slow area recommended oa placement appears pupil record card department education seems track various school recommended oa placement november 1983 year four 1984 still marrickville primary school oa class throughout included exhibit letter school plaintiff solicitor report chris kaperonis enrolled im support class formerly called oa student class placed experiencing learning difficulty teaching learning activity student planned effort develop potential every individual designed competitive fact chris kaperonis placed im support class would suggest experiencing intellectual retardation record either deterioration classroom playground co operation work habit earlier letter record term two 1984 plaintiff transferred regular class im class march 1984 recorded slight improvement confidence resource group christos try hard difficulty area throughout 1984 school report include comment still concentrating working ability rarely speaks still experiencing many difficulty grade effort almost inconsistent worker towards end 1984 record christos improved greatly year settled well oa 1985 moved year five enrolled oa class position time accident plaintiff claim good student used enjoy school medium level class asked whether fairly bright said think claimed remember repeat year remember oa class accident denied poor student slow learner may present recollection light school record find evidence quite unreliable unacceptable school report tendered originally particular order attempt made plaintiff solicitor though requested done trial place chronological order difficult task especially haste late stage report bear date necessary regard internal evidence assign date one report written front 1985 internal evidence completed november whatever year examination show however report marrickville school ashfield school must written november 1984 last report plaintiff prior accident possible written november 1983 dr milton seems understood comparison 1983 1984 comment seems indicate november 1984 probable date report contains following comment plaintiff progress particular subject area reading grade 3 indicates average progress effort c indicates usually steady worker comment christos enjoys reading writing grade 3effort b indicates always steady worker speaking grade 3effort cspelling grade 3effort indicates inconsistent worker comment christos learn word week handwriting grade 3effort dcomment care needed produce neater work social study natural science grade 2 indicates average progress effort indicates excellent effort comment christos enjoys project work mathematics grade 2effort acomment christos made great progess number work recorded borrowed book school library allowance need made fact limited knowledge english time report record satisfactory participation music art sport drama physical education last accompanied comment christos love soccer heading social personal development recorded usually produce careful work take pride book work show self control always work well independently work well group listens attentively follows instruction respect right others courteous accepts responsibility teacher comment seen great improvement christos work attitude school continues next year expect even better academic result christos usually well behaved police pupil report must course read context placed oa class plaintiff parent claim impression progressing satisfactorily school accident plaintiff father claiming plaintiff middle class denying least initially placed oa class prior accident endeavoured convey plaintiff required special enrolment oa class accident injury eventually conceded placed oa class accident however maintained poor academic performance special learning difficulty simply administrative reason make number class reject evidence may well present recollection mr kaperonis clearly odds plaintiff record pre accident year following accident plaintiff detained overnight hospital discharged following day father evidence came home day clearly inaccurate away school relatively short time evidence establish precisely long certainly back school 14 march 1985 date seen dr cassimatis plaintiff father gave evidence boy dizzy whilst hospital complaint dizziness continued first week home continued present time 23 march 1985 dr aroney reported plaintiff father saying boy dizzy day night good school take half mogadon night constant headache dr aroney pointed neurological objective evidence support thought boy would make full recovery perhaps absence neurological support plaintiff complaint perhaps instigation plaintiff father seems dr aroney referred plaintiff dr cassimatis psychiatrist saw 14 march medico legal assessment dr cassimatis recorded plaintiff saying dazed forgetful week returned school felt back functioning normal self except somatic symptom boy father insistent personality changed chris forgetful arrangement made plaintiff see dr cassimatis month later material discrepancy plaintiff account father account symptom may explained dr cassimatis seemed prepared recognising possibility plaintiff unable objectively observe ass condition difficult rely entirely plaintiff father present account evidence reveals tendency exaggerate seriousness plaintiff condition time undue willingness advocate plaintiff case however fact remains early period accident plaintiff father consistent account various doctor plaintiff complained dizziness whole persuaded case 21 march 1985 plaintiff seen referral dr aroney another psychiatrist dr ann cooper recorded complaint dizziness made plaintiff impression plaintiff somewhat anxious inhibited young boy dizziness insomnia appear related anxiety symptom recorded obtained 9 april 1985 history parent plaintiff mother long history dizziness anxiety symptom medication several year recently seen psychiatrist unreliability mr kaperonis senior evidence emphasised unwillingness concede history however clearly conveyed dr cooper also recorded mr kaperonis worse since date accident increased dizziness insomnia soreness left side head suffered substantial shock child came home immediately accident told son dead dr cooper concluded mother chronic anxiety exhibited symptom similar displayed plaintiff exacerbation anxiety result accident likely basis boy symptom accident commented prognosis poor mr mr kaperonis continue focus attention accident relieved hear mr kaperonis seeking psychiatric treatment feel chris symptom settle mr kaperonis symptom settle 9 september 1985 dr aroney made following note still effect accident dizziness take mogadon sleep learn night cry jump night also say frightened car shake eat nerve left leg left shoulder painful place mouth two teeth knocked fact plaintiff claim continuation insomnia dizziness present day medical evidence led case grossly deficient material indicate plaintiff refused since 1993 attend medical examination connection case attitude reinforced parent explain almost total lack medical evidence september 1985 seems stage care general practitioner dr kefaloukas brief handwritten report doctor dated 22 july 1991 contributes little understanding case apart dental report obtained medico legal purpose two report psychologist mr goard brief reference already made report dr milton dated 24 april 1993 already observed consists review plaintiff pre post accident school report indicate dr milton ever seen plaintiff effect plaintiff case september 1985 depends entirely evidence plaintiff parent progress dealt already evident misconception plaintiff school progress accident endeavoured convey time accident plaintiff personality behaviour changed entirely deterioration continuous time accident uninterrupted allowing may genuine recollection light fact sorry state indeed simply accord evidence available particular school record appears soon accident family moved marrickville address housing commission accommodation croydon plaintiff change school 10 april 1985 enrolled year five ashfield public school oa class record fragmented always clearly dated unable identify report relating 1985 year record certainly seem show 1986 rather improvement deterioration class work personality course necessary careful comparing opinion new set teacher ashfield plaintiff care accident marrickville appear established opinion ashfield teacher plaintiff making recognizable progress 1985 1986 end year report 1986 includes comment teacher christos worked well throughout year pleasure see much spelling language reading improved taking part class activity lot feel gained confidence term book work neat tidy something proud sure settle well high school good luck 1987 christos claim plaintiff sustained intellectual impairment personality change reason accident appears difficult sustain evidence one relevant factor plaintiff performance iq testing accident recorded mr goard m chadwick test result follows 13 august 1987 verbal iq 60performance iq 72full scale iq 64 tester doubting whether plaintiff co operating trying give best performance 6 june 1989 verbal iq 64performance iq 74full scale iq 68 subject similar reservation 27 september 1989 verbal iq 64performance iq 63full scale iq 63 indication malingering according m chadwick sufficient say accept evidence dr milton dr sydney smith school report support alteration basic intellectual ability attributable accident indeed class performance seems improved 1986 likewise accept opinion doctor supported examination school report accident plaintiff shy anxious much given initiating activity participation evidence change respect occurred sufficiently proximate time accident attributed plaintiff parent conceded course cross examination really boy commenced high school ashfield boy high school 1987 behavioural problem summarised earlier manifestation irritability hostility aggression violence also add truancy became apparent dr milton prepared say plaintiff pre accident personality would vulnerable trauma particularly view home background therefore probable accident overall detrimental emotional effect upon contributing present ongoing difficulty dr milton said current poor performance principally result low intellectual ability pre existing anxious reticent shy personality given vulnerability noted regard accident contributing one tenth one fifth present disadvantaged state absence report dr milton actual interview plaintiff description dr milton opinion present disadvantaged state find impossible place weight upon opinion dr smith hand noted absence indication dramatic change personality accident notation school record settled well new school accident absence indication behavioural problem 1986 onset behavioural aberrance 1987 accept dr smith opinion accident significant cause acted upon vulnerability effect immediate behavioural problem become immediately evident weighing whole evidence view plaintiff failed establish accident produced adverse consequence whether direct cause operation upon previously vulnerable personality term lasting emotional reaction intellectual cognitive change personality disorder extent plaintiff suffers intellectual cognitive deficit satisfied pre existed accident extent suffers personality problem behavioural problem find contributed accident last stated finding involves rejection also contention manner validated innader scase plaintiff condition may indirectly attributable accident result parent response thereto whatnader scase really establishes reasonably foreseeable response parent plaintiff accident regarded reasonably foreseeable consequence accident damage flowing parent reaction remote subject compensation child remains question fact whether accident cause fact plaintiff disability would understand anything case detract basic proposition plaintiff may recover symptom disability result fact defendant negligence mchugh ja emphasised p 530 proof causal connection plaintiff injury defendant negligence fundamental element action damage negligence liability arises however upon plaintiff simply showing defendant negligence material contributing cause causation involves two element plaintiff must prove pure question fact defendant negligent conduct caused injury damage one defendant bear legal responsibility causation fact determined according scientific philosophical theory causation common sense principle case court appeal held trial judge found evidence ganser syndrome plaintiff suffered caused fact accident albeit causative link direct passed indirectly parent reaction evidence fails satisfy plaintiff current continuing intellectual state caused accident fails satisfy personality disorder may suffer may thought suffered period since accident caused accident either directly indirectly evidence support proposition personality defect consequent aberrant behaviour manifested 1987 caused directly accident way result parent reaction accident true april 1995 dr cooper concerned attitude plaintiff parent might produce adverse consequence son evidence school report support proposition conduct attitude manifested plaintiff parent deleterious effect upon 1985 1986 possible attitude might summarise protectiveness undue willingness accede even must unreasonable request whim reinforced adverse consequence intellectual limitation deficient personality inasmuch condition shown consequence accident nothing evidence decision court appeal innaderwhich lead conclusion compensable element plaintiff ongoing intellectual personality disability appears much condition may described anxiety syndrome requires separate consideration manifestation syndrome take complaint parent description feeling anxious insomnia complaint dizziness complaint headache extent thing existed period year accident satisfied connection accident shown probably connection involves direct indirect parent element anxiety symptom identified feature condition dr milton april 1993 subject complaint dr donovan saw plaintiff behalf defendant 18 february 1993 form part complaint recorded plaintiff dr j connolly may 1993 brief report dr kefaloukos 22 july 1991 refers plaintiff silent withdrawn individual make reference anxiety symptom dr smith 13 march 1990 recorded continuing complaint dizziness headache hand response specific enquiry told anxiety feature plaintiff condition certainly anxiety distinct dizziness headache could symptom anxiety state part plaintiff complaint dr smith satisfied anxiety state may previously existed consequence accident long since resolved indeed probability resolved within year given relatively good progress school particularly 1986 satisfied plaintiff compensated upon basis accident precipitate previously vulnerable individual anxiety state persisted year accident longer manifested satisfied accident cause brain damage intellectual cognitive personality change turn therefore assessment plaintiff damage clearly consequence finding made assessment substantial particular follows claim loss earnings time plaintiff left school date future cost personal care rejected entirely claim likely cost fund management must also rejected assuming plaintiff capable administering fund best interest evidence would prepared find incapacity finding made consequence accident nominal defendant v gardikiotis high court australia unreported 24 april 1996 claim reduced one shock trauma accident pain suffering associated event experienced plaintiff next month diminishing next couple year allowance anxiety distress manifested early complaint doctor particularly pain discomfort embarrassment associated injury teeth found continue necessary treatment completed together much pain discomfort associated carrying treatment due course claim consists pocket expense allowance future cost dental treatment relatively modest award general damage pocket expense agreed 3 394 allow future dental treatment sum 7 840 allow way general damage sum 35 000 ass plaintiff damage 46 234 plaintiff claim interest entitled interest portion amount awarded general damage purpose calculating interest necessary apportion sum 35 000 past detriment future detriment apportion sum 30 000 past respect period 11 3 year date accident date allow interest thereon rate two percent per annum amount interest 6 780 respect balance award relates future interest payable total plaintiff entitlement damage interest subject contributory negligence 53 014 regard finding contributory negligence judgment plaintiff 80 figure say 42 411 20

DPP v CGM [2014] VSC 485 (30 September 2014).txt

dpp v cgm 2014 vsc 485 30 september 2014 last updated 30 september 2014in supreme court victorianot restrictedat melbournecriminal divisionno cr 2014 00059director public prosecutionsapplicantvcgmrespondentnote proceeding subject suppression order regarding identification judge rush jwhere held melbournedate hearing 28 30 july 2014 1 august 2014date judgment 30 september 2014case may cited dpp v cgmmedium neutral citation 2014 vsc 485first revision 30 september 2014 public law application detention order respondent accepts unacceptable risk committing relevant offence detention order supervision order made whether appropriate order supervision order detention order whether risk respondent committing relevant offence would unacceptable unless detention order made consideration risk presented respondent hopkins correctional centre greenhill detention precinct corella place transitional accommodation facility detention order made period two year director public prosecution v jph 2 2014 vsc 177 nigro or v secretary department justice 2013 vsca 213 serious sex offender detention supervision act 2009 vic s 9 33 35 36 37 42 65 73and115 appearance counselsolicitorsfor applicantmr p rose qc withms j davidsonoffice public prosecutionsfor respondentmr j mcloughlin withmr p smallwoodvictoria legal aidhis honour introduction1 application brought director public prosecution dpp pursuant tos 73 3 theserious sex offender detention supervision act 2009 vic act dpp seek detention order respect cgm respondent 2 respondent currently serving custodial sentence 1 due expire 16 october 2014 offence committed june 2011 offence committed respondent subject supervision order 2 made pursuant tos 9of act despite incarcerated respondent remains subject supervision order application dpp seeking replace supervision order detention order 3 3 dpp seek detention order basis respondent pose unacceptable risk committing relevant offence detention order made offender community 4 dpp submits risk respondent committing offence unable managed current supervision condition period detention sought dpp three year 4 mr j mcloughlin counsel respondent contest respondent pose unacceptable risk committing relevant offence detention order supervision order made 5 however mr mcloughlin contended appropriate order supervision order rather detention order accordingly review requires assessment effectiveness supervision order detention order managing risk respondent committing relevant offence word court must consider whether unacceptable risk respondent committing relevant offence defined act 6 unless detention order made 5 application successful respondent detained within hopkins correctional centre ararat election respondent would housed purpose built detention accommodation within gazetted prison ground greenhill detention precinct within general prison population supervision order made respondent housed corella place transitional accommodation facility adjacent outside hopkins correctional centre also open court make order

Aztech Science v Atlanta Aerospace (Woy Woy) [2005] NSWCA 319 (15 September 2005).txt

aztech science v atlanta aerospace woy woy 2005 nswca 319 15 september 2005 citation aztech science v atlanta aerospace woy woy 2005 nswca 319file number 40996 04hearing date 9 august 2005judgment date 15 09 2005parties aztech science pty ltd appellant atlanta aerospace woy woy pty ltd first respondent stuart daevys second respondent judgment handley ja bryson ja basten jalower court jurisdiction supreme court equity divisionlower court file number eq 2187 03lower court judicial officer barrett jcounsel r montgomery appellant appearance first second respondent solicitor mcclellands appellant appearance first second respondent catchword contract pre registration contract s131 corporation act 2001 cth whether contract ratified whether party agreed extend time period registration set contractevidence evidence whether evidence available trial read tendered admitted appeal unders75a 8 thesupreme court act 1970legislation cited corporation act 2001bankruptcy act 1966 cth supreme court act 1970national company codedecision grant liberty apply judgment supreme courtof new south walescourt appealca 40996 04eq 2187 03handley ja bryson jabasten ja15 september 2005aztech science pty ltd v atlanta aerospace woy woy pty ltd anormr azzi entered contract atlanta aerospace woy woy pty ltd atlanta aerospace 11 november 2002 relation development commercialisation various design device mr azzi entered contract promoter behalf aztech science pty ltd aztech company yet incorporated term contract aztech required registered within 60 day otherwise contract would come end period expired 17 february 2003 aztech registered 20 february 2003 however aztech claimed virtue certain representation made meeting representative party 14 february 2003 atlanta aerospace agreed extend period registration contract extra day primary judge rejected aztech claim held contract come end addition primary judge held statutory reference agreed ins131of thecorporations act 2001 cth meant time could extended agreement reached one party estopped denying fact absence actual agreement issue determination court appeal included whether aztech entitled benefit pre registration contract basis period extended virtue ratification unders131 addition aztech sought tender evidence unders75a 8 thesupreme court act1970

Campisi v Commonwealth of Australia (includes Corrigendum dated 29 April 2010) [2010] FCA 379 (16 April 2010).txt

campisi v commonwealth australia includes corrigendum dated 29 april 2010 2010 fca 379 16 april 2010 last updated 5 may 2010federal court australiacampisi v commonwealth australia 2010 fca 379citation campisi v commonwealth australia 2010 fca 379parties domenico campisi v commonwealth australia state victoria lower murray urban rural water corporationfile number vid 260 2009judge tracey jdate judgment 16 april 2010corrigendum 29 april 2010catchwords constitutional law 100 ofconstitutiondoes impinge validity ofwater act 1989 vic summary dismissal matter reasonable prospect success absence matter therefore jurisdictionlegislation commonwealth australiaconstitutionacts 100federal court australia act 1976 cth 31a 2 judiciary act 1903 cth 39bwater act 1989 vic 85date hearing 16 april 2010place melbournedivision general divisioncategory catchwordsnumber paragraph 12counsel applicant mr c fitzgibbonsolicitor applicant water lawyerscounsel first respondent dr donaghue scsolicitor first respondent australian government solicitorcounsel second respondent m z maudsolicitor second respondent victorian government solicitorcounsel third respondent mr f j tiernan sc mr dinellisolicitor third respondent mcmullan solicitorsin federal court australiavictoria district registrygeneral divisionvid 260 2009between domenico campisiapplicantand commonwealth australiafirst respondentstate victoriasecond respondentlower murray urban rural water corporationthird respondentjudge tracey jdate order 16 april 2010where made melbournecorrigendumon cover sheet judgment counsel first respondent read dr donaghue certify preceding one 1 numbered paragraph true copy corrigendum reason judgment herein honourable justice tracey associate dated 23 april 2010in federal court australiavictoria district registrygeneral divisionvid 260 2009between domenico campisiapplicantand commonwealth australiafirst respondentstate victoriasecond respondentlower murray urban rural water corporationthird respondentjudge tracey jdate order 16 april 2010where made melbournethe court order judgment entered respondent pursuant tos 31a 2 thefederal court australia act 1976 cth applicant pay respondent cost proceeding including cost respective strike motion name third respondent proceeding amended read lower murray urban rural water corporation note settlement entry order dealt order 36 federal court rule text entered order located using federal law search court website federal court australiavictoria district registrygeneral divisionvid 260 2009between domenico campisiapplicantand commonwealth australiafirst respondentstate victoriasecond respondentlower murray urban rural water corporationthird respondentjudge tracey jdate 16 april 2010place melbournereasons judgmentthis proceeding commenced application 21 april 2009 earliest opportunity respondent drew attention submitted significant deficiency manner applicant sought plead case adjournment month granted following amended application statement claim filed respondent continued object efficacy pleading sought order proceeding dismissed pursuant tos 31a 2 thefederal court australia act 1976 cth respondent filed served detailed written submission support motion summary dismissal applicant opportunity considering submission filed served answering submission notice motion made returnable morning respondent developed submission support motion substance applicant case commonwealth aided abetted various way state victoria third respondent statutory authority created victorian legislation contraveneds 100of theconstitution section 100provides commonwealth shall law regulation trade commerce abridge right state resident therein reasonable use water river conservation irrigation commonwealth contended application incompetent give rise matter within meaning chapter iii theconstitutionands 39bof thejudiciary act 1903 cth applicant reasonable prospect successfully prosecuting proceeding commonwealth submitted court satisfied reasonable prospect applicant succeeding absence matter therefore jurisdiction failure applicant identify law regulation trade commerce abridged applicant right reasonable use water murray river irrigation state victoria supported commonwealth application submitted restriction limitation applicant right use river murray water irrigation imposed thewater act 1989 vic section 100of theconstitutiondid impinge validity victorian act furthermore applicant statement claim identify legislative factual basis submitting state victoria relevantly acted agent commonwealth third respondent also supported summary dismissal application pointed established pursuant tos 85of thewater act 1989 vic power function duty derived act power function duty conferred upon commonwealth legislation necessary recount respondent argument greater detail heard respondent develop argument counsel applicant sought short adjournment obtained instruction client consent making order unders 31aof thefederal court australia act 1976 cth counsel acknowledged force argument raised client accepted statement claim suffered deficiency justify court concluding reasonable prospect successfully prosecuting proceeding circumstance consented order proceeding dismissed client pay cost respondent order made third respondent also sought order amending title sued properly entitled lower murray urban rural water corporation applicant oppose application order amending title third respondent made certify preceding twelve 12 numbered paragraph true copy reason judgment herein honourable justice tracey associate dated 23 april 2010

Grandview Landscapes Pty Ltd T_A Grandview Landscapes [2019] FWCA 212 (16 January 2019).txt

grandview landscape pty ltd grandview landscape 2019 fwca 212 16 january 2019 last updated 16 january 2019 2019 fwca 212fair work commissiondecisionfair work act 2009s 225 enterprise agreementgrandview landscape pty ltd grandview landscape ag2018 6865 grandview landscape pty ltd cfmeu building construction industry enterprise agreement 2011 2015building metal civil construction industriesdeputy president massonmelbourne 16 january 2019application termination grandview landscape pty ltd cfmeu building construction industry enterprise agreement 2011 2015 1 grandview landscape pty ltd grandview landscape applicant applied pursuant tos 225of thefair work act 2009 act terminate thegrandview landscape pty ltd cfmeu building construction industry enterprise agreement 2011 2015 agreement agreement expressed cover applicant construction forestry mining energy union cfmeu agreement passed nominal expiry date 2 section 225of act provides 225 application termination enterprise agreement nominal expiry dateif enterprise agreement passed nominal expiry date following may apply fwc termination agreement one employer covered agreement b employee covered agreement c employee organisation covered agreement 3 section 226of act provides 226 fwc must terminate enterprise agreementif application termination enterprise agreement made undersection 225 fwc must terminate agreement fwc satisfied contrary public interest b fwc considers appropriate terminate agreement taking account circumstance including view employee employer employee organisation covered agreement ii circumstance employee employer organisation including likely effect termination 4 cfmeu organisation covered agreement correspondence chamber 14 january 2019 cfmeu advised oppose application employee employed applicant covered agreement 5 based material contained employer declaration received 10 december 2018 additional material received 19 december 2018 satisfied termination agreement contrary public interest taking account circumstance including in 226 b ii act consider appropriate terminate agreement nothing raise public interest consideration might militate termination agreement stated email applicant dated 19 december 2018 employee covered agreement satisfied appropriate approve termination agreement terminate agreement 6 termination operate 16 january 2019 order effect issued decision deputy presidentprinted authority commonwealth government printer ae404799pr703838

0907209 [2010] MRTA 108 (19 January 2010).txt

0907209 2010 mrta 108 19 january 2010 last updated 27 january 20100907209 2010 mrta 108 19 january 2010 decision recordreview applicant mr sivatharishiny sivarubanvisa applicant mr thillainayaki veerasingammrt case number 0907209diac reference 85038tribunal member john cipolladate 19 january 2010place decision sydneydecision tribunal remit application tourist class tr visa reconsideration direction visa applicant meet following criterion subclass 676 tourist visa cl 676 211 schedule 2 regulation andcl 676 212 schedule 2 regulation andcl 676 213 schedule 2 regulation andcl 676 221 schedule 2 regulation statement decision reasonsapplication reviewthis application review decision made delegate minister immigration citizenship refuse grant visa applicant tourist class tr visa unders 65of themigration act 1958 act visa applicant applied department immigration citizenship tourist class tr visa 31 august 2009 delegate decided refuse grant visa 2 september 2009 notified visa applicant decision review right letter dated 2 september 2009 delegate refused visa application basis visa applicant satisfy cl 676 211 schedule 2 themigration regulation 1994 regulation delegate could satisfied expressed intention visit australia genuine review applicant applied tribunal 7 september 2009 review delegate decision tribunal find delegate decision mrt reviewable decision 338 7 act tribunal find review applicant made valid application review 347 act relevant lawthe tourist class tr visa contains one subclass subclass 676 tourist item 1218 schedule 1 regulation subclass 676 visa people seeking visit remain australia visitor purpose visiting australian citizen australian permanent resident parent spouse de facto partner child brother sister visa applicant alternatively may granted seeking visit remain australia purpose related business medical treatment criterion subclass 676 visa set inpart 676of schedule 2 regulation relevantly matter primary criterion satisfied time application cl 676 211 criterion requires visa applicant satisfies minister time application visa applicant expressed intention visit australia genuine time decision visa applicant must meet requirement either cl 676 221 2 3 cl 676 221 1 provision include requirement visa applicant satisfy minister expressed intention visit australia genuine 676 221 2 676 221 3 claim evidencethe tribunal department file relating visa applicant tribunal also regard material referred delegate decision material available range source applicant applied subclass 676 tourist visa australian high commission colombo sri lanka accompanying application evidence applicant made reservation flight sydney also provided evidence applicant husband cash deposit held commercial bank ceylon applicant also provided evidence ownership property sri lanka submission applicant husband wife wanting visit australia submission made reference fact applicant daughter permanent resident australia applicant daughter invited mother attend convocation ceremony admission certified practising accountant 23 september 2009 sydney also provided certified copy applicant passport invitation association certified practising accountant australia certificate presentation ceremony 23 september 2009 decision made reject visa application 2 september 2009 delegate decision noted assessing application considered document provided respect husband employment financial family commitment based evidence information provided satisfied demonstrated sufficient incentive return home country note housewife living colombo husband working trincomolee daughter residing permanently australia consider lack family commitment home country may incentive remain australia beyond proposed period stay also satisfied financial personal commitment sri lanka would encourage abide condition visa granted whilst acknowledge offer support daughter satisfied pledge support outweighs concern regard personal circumstance given evidence provided satisfied genuine visitor review application lodged tribunal 7 september 2009 annexed application review copy departmental decision document pertaining proposed visit applicant submitted time application department 7 october 2009 tribunal wrote review applicant inviting provide information tribunal tribunal letter noted evidence tribunal indicates applicant applied tourist visa visit australia purpose attending daughter admission certified practising accountant 23 september 2009 decision maker need satisfied applicant intention visit australia genuine end tribunal invite applicant provide evidence wish adduce establishes genuine intention regard visit tribunal received response via facsimile 9 november 2009 provided response copy letter provincial department education sri lanka dated 27 october 2009 show applicant husband reside permanent address also provided ownership land jointly owned applicant husband also provided letter grama servaka dated 19 october 2009 indicated review applicant mother law living applicant review applicant also stated history sponsoring anybody australia overstayed visa also made reference fact parent owned apartment significant value colombo ownership unit provided department australian high commission time application tribunal conducted hearing 6 january 2010 evidence provided applicant husband review applicant review applicant advised born sri lanka 18 january 1976 australian permanent resident tribunal asked review applicant objective visit advised time application due admitted certified practising accountant wanted mother attend award ceremony 23 september 2009 also stated settled australia skilled migrant wanted mother visit husband child see review applicant new life australia like review applicant advised returned sri lanka since migration december 2008 advised child tribunal asked review applicant describe mother circumstance advised mother housewife colombo father chief accountant government worked government excess 35 year advised father currently based contract trincomolee returned home posting weekend tribunal asked review applicant ethnicity advised family ethnic tamil tribunal noted longstanding civil war sri lanka tamil singhalese asked review applicant whether parent ethnic tamil ever experienced persecution sri lanka could ground refugee protection application review applicant responded saying parent peaceful life sri lanka basis mother could apply protection australia tribunal asked review applicant visit financed review applicant advised parent would pay mother air travel would provided money sustain three month proposed visit review applicant advised could provide supplementary support mother needed tribunal asked review applicant parent property sri lanka advised parent jointly owned valuable apartment colombo sri lanka also owned late model motor vehicle advised father worked government department 35 year family owned two additional house jaffna peninsula one name review applicant maintained parent behalf review applicant also stated parent owned agricultural land well tribunal asked review applicant parent sibling advised father three sibling mother resident sri lanka parent maintain close tie review applicant added father work commitment would travelling australia parent close mother would return sri lanka end proposed visit tribunal took evidence applicant advised born 26 october 1948 sri lanka tribunal asked applicant objective visit advised initially wanted visit australia present daughter award certified practising accountant september 2009 applicant noted daughter migrated australia 1 december 2008 seen daughter son law granddaughter since time tribunal asked applicant long proposing remain australia advised three month applicant added husband accountant sri lanka worked government position past 35 year currently contract trincomolee tribunal asked applicant whether husband ethnic tamil living sri lanka ever experienced persecution whether ground applicant would apply protection basis ethnicity travel australia applicant stated basis either husband lodge protection visa application australia advised husband problem sri lanka despite fact year conflict personally experienced problem tribunal asked applicant property interest advised colombo husband jointly owned apartment valuable stated husband also owned property jaffna peninsula husband owned late model motor vehicle tribunal asked applicant whether husband fund invested advised husband monies invested commercial bank ceylon added husband also owned agricultural land jaffna peninsula tribunal asked applicant visit australia would financed advised husband would look cost airfare husband would provide money duration visit tribunal asked applicant family composition sri lanka advised three sibling resident sri lanka husband advised sibling husband sibling interact together tribunal asked applicant whether practises hindu faith sri lanka advised committed faith tribunal asked anything applicant wished say advised nothing would definitely return home end proposed visit husband peaceful life sri lanka tribunal took evidence applicant father mr kasinathar beerasingam applicant father advised accountant currently working position chief accountant sri lankan accounting service advised currently based trincomolee recently applied reposting colombo going relocated position central education ministry colombo tribunal asked applicant husband property ownership advised wife owned apartment colombo also owned motor vehicle value 18 000 wife also owned land property jaffna peninsula tribunal asked applicant husband whether wife ever experienced persecution ethnicity sri lanka stated wife problem predominantly worked government extended period time tribunal asked applicant husband whether wife sibling sri lanka advised three sibling wife resident sri lanka maintained regular contact close applicant husband also stated involved caring two older sister colombo tribunal asked applicant husband wife wanting visit australia advised visit daughter son law grandchild sure wife would return end proposed visit finding reasonsthere number key criterion grant tourist visa include time application criterion indeed decision maker need satisfied expressed intention visit australia genuine evidence tribunal indicates applicant visa settled citizen sri lanka applicant husband long history civil service accountant sri lankan government currently working contract trincomolee evidence tribunal indicates applicant husband applicant property colombo substantial value rural property residential property jaffna peninsula tribunal satisfied purpose visit visit australian permanent resident applicant daughter purpose purpose related business medical treatment indeed evidence indicates applicant initially wanted attend daughter graduation ceremony certified practising accountant however ceremony september 2009 still wish visit see daughter son law granddaughter seen since daughter migration australia december 2008 evidence tribunal indicates applicant adequate fund support proposed visit tribunal also elicited evidence applicant husband regard personal circumstance sri lanka given ethnic tamil evidence provided tribunal indicated applicant husband peaceful life sri lanka subject persecution country indeed applicant husband advised wife experienced discrimination tamil ethnicity sri lanka may attributable fact applicant husband maintained responsible position civil servant sri lankan government evidence tribunal indicates applicant husband substantial property interest sri lanka strong social relation sibling resident sri lanka tribunal note sri lanka country human right record prevailing social economic condition place high risk category purpose respective visa application australia however tribunal review required consider one thing whether expressed intention applicant visit australia genuine regard evidence tribunal satisfied proposed visit applicant australia genuine order affect reunion daughter son law grandchild lawfully resident australia evidence tribunal indicates applicant seen daughter son law granddaughter substantial period time evidence tribunal sufficient satisfy incentive applicant return sri lanka end proposed visit tribunal satisfied basis evidence applicant intends genuine visit australia indeed noted consideration applicant personal financial social circumstance sri lanka lead tribunal find applicant strong incentive return sri lanka expiration tourist visa motivation visiting australia genuine tribunal accordingly make following finding applicant seeking visit australia purpose visiting daughter australian permanent resident applicant access adequate fund personal support proposed visit period stay application exceed three month tribunal satisfied basis evidence expressed intention applicant visit australia genuine decisionthe tribunal remit application tourist class tr visa reconsideration direction visa applicant meet following criterion subclass 676 tourist visa clause 676 211 schedule 2 themigration regulationsclause 676 212 schedule 2 themigration regulationsclause 676 213 schedule 2 themigration regulationsclause 676 221 schedule 2 themigration regulation john cipollamember

Adelaide Brighton Cement Ltd [2018] FWCA 1574 (16 March 2018).txt

adelaide brighton cement ltd 2018 fwca 1574 16 march 2018 last updated 16 march 2018 2018 fwca 1574fair work commissiondecisionfair work act 2009s 185 enterprise agreementadelaide brighton cement ltd ag2017 5210 adelaide brighton cement birkenhead work enterprise agreement ea 2017cement concrete productscommissioner leemelbourne 16 march 2018application approval adelaide brighton cement birkenhead work enterprise agreement ea 2017 1 application made approval enterprise agreement known theadelaide brighton cement birkenhead work enterprise agreement ea 2017 agreement application made pursuant tos 185of thefair work act 2009 act made adelaide brighton cement ltd agreement single enterprise agreement 2 applicant provided written undertaking copy undertaking attached annexure satisfied undertaking cause financial detriment employee covered agreement undertaking result substantial change agreement 3 subject undertaking referred satisfied requirement ofss 186 187 188and190as relevant application approval met 4 pursuant tos 205 2 act model consultation term prescribed thefair work regulation 2009is taken term agreement 5 australian worker union automotive food metal engineering printing kindred industry union known australian manufacturing worker union amwu communication electrical electronic energy information postal plumbing allied service union australia bargaining representative agreement given notice 183 act want agreement cover accordance withs 201 2 note agreement cover organisation 6 agreement approved accordance 54 act operate 23 march 2018 nominal expiry date agreement 14 october 2020 commissionerprinted authority commonwealth government printer ae427650pr601226 annexure

Editors --- "Books Received" [2003] UNSWLawJl 27; (2003) 26(1) UNSW Law Journal 342.txt

editor book received 2003 unswlawjl 27 2003 26 1 unsw law journal 342books receivedaustralian finance law mallesons stephen jaques lawbook co sydney 5th ed 2003 lxv 794 page recommended retail price 116 00 isbn 0 45521855 2 child support practitioner guide jan bowen lawbook co sydney 2nd ed 2002 xv 420 page recommended retail price 88 00 isbn 0 45521920 6 data protection law approaching rationale logic limit lee bygrave kluwer law international hague 2002 xxvii 426 page recommended retail price u 110 00 isbn 90 4119870 9 new zealand bill right paul rishworth grant huscroft scott optican richard mahoney oxford university press melbourne 2003 lii 852 page recommended retail price 150 00 isbn 0 19558361 2 principle equity patrick parkinson ed lawbook co sydney 2nd ed 2003 civ 1082 page recommended retail price 139 95 isbn 0 45521816 1 prosecution corporation jonathon clough carmel mulhern oxford university press melbourne 2002 xl 239 page recommended retail price 79 95 isbn 0 19550645 6 refugee law australia roz germov francesco motta oxford university press melbourne 2003 xliv 899 page recommended retail price 160 00 isbn 0 19550998 6 university intellectual property ership exploitation ann monotti sam ricketson oxford university press oxford 2003 lxvii 626 page recommended retail price 360 00 isbn 0 19826594 8

Chen v Secretary, Department of Social Services [2019] FCA 1155 (29 July 2019).txt

chen v secretary department social service 2019 fca 1155 29 july 2019 last updated 29 july 2019federal court australiachen v secretary department social service 2019 fca 1155file number nsd 609 2019judge abraham jdate judgment 29 july 2019catchwords practice procedure interlocutory application application stay decision administrative appeal tribunal stay order sought pursuant tos 44a 2 theadministrative appeal tribunal act 1975 cth r 33 17 thefederal court rule 2011 cth stay refusedlegislation administrative appeal tribunal act 1975 cth s 25 4144and44afederal court rule 2011 cth r 33 17social security act 1991 cth s 117 643 1061pa 1064and1068social security administration act 1999 cth s 126 179 142and235cases cited aspen pharma pty ltd v h lundbeck 2013 fca 324broadbent v civil aviation safety authority 1999 fca 1871chen secretary department social service 2018 aata 4672chen secretary department social service 2019 aata 560comcare v nicolas 2014 fca 638evans v secretary department social service 2014 fca 491haritos v commissioner taxation 2015 fcafc 92 2015 233 fcr 315hartnett v migration agent registration authority 2003 fca 998kara v comcare 2011 fca 951lim v secretary department education employment workplace relation 2008 fca 1058minister home affairsvzadeh 2018 fca 1452rana v repatriation commission 2011 fcafc 124 2011 126 ald 1secretary department family housing community service indigenous affair v mouratidis 2010 fca 880theo v secretary department family service 2004 fca 1748date hearing 16 july 2019registry new south walesdivision generalnational practice area administrative constitutional law human rightscategory catchwordsnumber paragraph 58counsel applicant applicant appeared person assistance interpretersolicitor first respondent dr thompson sparke helmore lawyerssolicitor second respondent second respondent filed submitting notice save costsordersnsd 609 2019between chia huey chenfirst applicantand secretary department social servicesfirst respondentadministrative appeal tribunalsecond respondentchris puplick amthird respondentjudge abraham jdate order 29 july 2019the court order application stay made notice motion filed 29 may 2019 refused cost court note respondent informed court policy department social service enforce debt commonwealth court proceeding foot challenging debt note entry order dealt inrule 39 32of thefederal court rule 2011 reason judgmentabraham j applicant applies order pursuant tosection 44a 2 theadministrative appeal tribunal act 1975 cth aat act andrule 33 17of thefederal court rule 2011 cth staying decision subject applicant substantive appeal court respondent opposes order applicant unrepresented proceeding description administrative appeal tribunal tribunal applicant evidence largely reflects conduct application seechen secretary department social service 2019 aata 560 chen 3 3 4 court applicant advised desirability obtaining legal assistance applicant relied upon 8 affidavit filed prior hearing support interlocutory application affidavit dated 29 may 2019 affidavit dated 19 june 2019 affidavit dated 25 june 2019 affidavit dated 26 june 2019 affidavit dated 3 july 2019 affidavit dated 4 july 2019 affidavit dated 9 july 2019 affidavit dated 12 july 2019 addition two affidavit filed one day hearing completion argument another filed 22 july 2019 several day following hearing application applicant also sent three email containing various material chamber day following hearing application 17 july 2019 unclear face affidavit material filed prior hearing whether relate stay application opposed final hearing however given time filed assumed relate application acted accordingly respondent confirmed objection additional information taken account instance written submission filed applicant take affidavit material emailed chamber applicant written submission relation matter note number affidavit filed breach order made 26 june 2019 filing material hearing application term length date due filed nonetheless take account note also one affidavit affidavit dated 12 july 2019 attache respondent submission handwritten comment presumably made applicant applicant applied stay enable disability support pension dsp reinstated continue paid pending appeal applicant seek payment dsp backdated 2 april 2019 date respondent informs court written submission department human service department reconsidered remade decision relation applicant matter accordance reasoning decision appeal reason application stay refused procedural historythese proceeding stem applicant receipt various centrelink benefit decision respondent cancel benefit subsequent order recovery certain money previously paid 11 october 1999 18 august 2006 applicant received newstart allowance nsa thesocial security act 1991 cth s act nsa payable subject mean test asset income test accordance withsections 643and1068of s act 19 august 2006 applicant granted dsp s act basis suffering mental health condition dsp also subject mean test accordance withsections 117and1064of s act m chen paid dsp 2 march 2018 17 january 2017 1 december 2017 2 december 2017 2 february 2018 applicant paid pensioner education supplement pe s act also subject mean test initial eligibility dependent upon qualification either nsa dsp first instance accordance withsection 1061paof s act litigation arose context five original decision made officer department follows 1 15 march 2018 decision cancel applicant dsp effect day 2 16 march 2018 decision made raise debt applicant overpayment pe period 17 january 2017 1 december 2017 amounting 1 421 81 3 16 march 2018 decision made raise debt applicant overpayment pe period 2 december 2017 2 february 2018 amounting 280 80 total pe debt 1 702 61 4 19 march 2018 decision made raise debt applicant overpayment nsa period 11 october 1999 18 august 2006 amounting 66 494 77 5 19 march 2018 decision made raise another debt applicant overpayment dsp period 19 august 2006 2 march 2018 amounting 259 671 67 2 july 2018 authorised review officer aro undertook internal review five original decision undersections 126and235of thesocial security administration act 1999 cth administration act aro affirmed decision 1 2 3 varied debt decision 4 66 020 98 varied debt decision 5 256 924 56 29 august 2018 tribunal undertaking first level review aat1 section 142 administration act section 25 aat act affirmed aro decision 20 december 2018 tribunal undertaking second level review aat2 stayed aat1 decision section 41 2 aat act decision aat2 relation issue stay chen secretary department social service 2018 aata 4672at 60 follows tribunal grant applicant request stay decision social service child support division tribunal 29 august 2018 respect cancellation applicant dsp ordered dsp arrears paid applicant original cancellation date 15 march 2018 ongoing payment dsp paid applicant next day social security benefit paid decision tribunal substantive application come operation result decision applicant dsp payment reinstated together back payment dsp 15 march 2018 27 march 2019 aat2 set aside aat1 decision remitted matter secretary direction matter raising debt applicant prior 18 may 2010 reconsidered line reason aat2 inchen 3 aat2 section 179 administration act section 25 aat act aat2 decision 27 march 2019 subject m chen substantive appeal court present stay application follows 139 pursuant tosection 43 1 c ii theadministrative appeal tribunal act 1975the decision review set aside remitted secretary direction matter raising debt applicant prior 18 may 2010 reconsidered line reason tribunal decision aat2 subject proceeding court appeal decision filed 24 april 2019 according respondent written submission made application 2 april 2019 departmental officer made decision cancel applicant dsp effect 15 march 2018 made following decision raise debt applicant 1 overpayment pe period 17 january 2017 1 december 2017 amounting 1 421 81 2 period 2 december 2017 2 february 2018 amounting 280 80 total pe debt 1 702 61 3 overpayment nsa period 11 october 1999 18 august 2006 amounting 66 020 98 4 overpayment dsp period 19 august 2006 2 march 2018 amounting 256 924 56 5 overpayment dsp 15 march 2018 29 march 2019 debt amounting 28 209 51 respondent written submission also indicate 3 april 2019 respondent informed applicant decision 9 july 2019 total applicant debt commonwealth 352 109 14 argumentin summary applicant argued decision aat2 incorrect error reason decision certain asset referred aat2 applicant submitted many bank account referred aat2 reason closed applicant submitted must pay bill property rent income cover applicant submitted need centrelink benefit pay bill relation property matter applicant maintained tribunal never received money various trust say property done 20 year pay debt trust personal account applicant submitted tribunal money trust family applicant also complained accuracy aspect tribunal decision included applicant complaint relation bank statement referred tribunal decision contention money much submitted applicant related matter could relevant appeal despite repeated explanation nature appeal court effect applicant submission plea tribunal decision wrong order made entitled paid benefit respondent opposes application summary respondent contended ground notice appeal filed 24 april 2019 indicate applicant poor prospect success paucity evidence support contention financial hardship rather finding aat2 applicant considerable real estate asset income derives asset bank account asset unsuccessful appeal court debt amount dsp paid accordance stay order date court decision would add current predicament would exacerbate financial difficulty aat2 stay order 20 december 2018 ultimately considerable disadvantage respondent also submitted stay refused appeal proceeding would rendered nugatory applicant ultimately successful given potential loss public purse interest party proper basis granting stay relevant legal principlesthe relevant statutory provision section 44a 2 aat act extracted 44a operation implementation decision subject appeal stay order 2 appeal instituted federal court australia decision tribunal court judge court may make order order staying otherwise affecting operation implementation either following decision tribunal part decision b decision proceeding tribunal related part decision court judge considers appropriate purpose securing effectiveness hearing determination appeal principle relevant exercise discretion section 44a 2 well settled discretion exercised special circumstance justify departure rule successful litigant entitled fruit judgment pending appeal example appeal although successful may otherwise rendered nugatory comcare v nicolas 2014 fca 638at 6 broadbent v civil aviation safety authority 1999 fca 1871at 5 6 hartnett v migration agent registration authority 2003 fca 998at 4 theo v secretary department family service 2004 fca 1748at 5 special circumstance held exist typically exclusively respondent financial state reasonable prospect recovering money paid pursuant judgment appeal secretary department family housing community service indigenous affair v mouratidis 2010 fca 880at 21 discretion conferred section broad reason graft qualification onto clear word aspen pharma pty ltd v h lundbeck 2013 fca 324at 31 32 inminister home affairsvzadeh 2018 fca 1452 thawley j 23 observed whether stay ordered depends upon whether court considers appropriate purpose securing effectiveness hearing determination appeal consideration relevant exercise court discretion confined include 1 general rule successful party entitled benefit judgment presumed correct 2 applicant bear onus demonstrate proper basis stay 3 although speculation prospect success generally unnecessary stay granted absence arguable ground appeal appeal bona fide 4 hand appears prospect success strong may circumstance particular case relevant factor consider exercise discretion may interact consideration balance convenience prospect appeal succeeding particularly strong appellant may show le term balance convenience 5 thing equal stay generally granted stay appeal would rendered nugatory appeal successful 6 consideration balance convenience competing right party effect granting granting stay non party weighed balance considerationas noted applicant seek stay decision aat2 enable continue paid benefit respondent pending hearing determination appeal court mindful applicant unrepresented proceeding tribunal tribunal observed dsp granted basis mental health issue expressed concern issue impact ability conduct proceeding appears application made least part stay granted aat2 20 december 2018 pending final consideration decision review initial decision aat2 grant stay created false expectation applicant circumstance court different faced tribunal time decision made first time aat2 granted stay applicant financial position position ass dispute applicant challenging respondent assertion financial position financial impact denial stay matter hearing review applicant unsuccessful aat2 made number adverse factual finding relation applicant claim real estate bank account held name second appeal court limited party may appeal court question law decision tribunal section 44 1 aat act merit review kara v comcare 2011 fca 951at 31 evans v secretary department social service 2014 fca 491at 21 whether notice appeal contains question law approached matter substance form haritos v commissioner taxation 2015 fcafc 92 2015 233 fcr 315 haritos 62 case doubt court consider notice appeal question alleged question question law ground raised statutory context tribunal reason decision considered matter satisfy fact question law haritosat 94 applicant unrepresented relevant matter taken account lim v secretary department education employment workplace relation 2008 fca 1058 present circumstance applicant mental health issue also relevant matter take account light affidavit relied applicant also note relation substantive appeal generally section 44 aat act vesting original jurisdiction court hear appeal tribunal question law permit evidence relied court tribunal prohibition reception evidence hearing section 44 appeal complete one limited scope evidence admitted rana v repatriation commission 2011 fcafc 124 2011 126 ald 1at 19 21 background turn relevant factor case bearing matter mind conscious overview merit substantive appeal considered stage nothing ground appeal currently drafted would weigh particularly favour stay ground follows recited error appeared original notice appeal ground relied on1 miss chen told centerlink 1999 still newstart bring family trust 6 million taiwan dollar australia purchase property family trust name 2 went back country twice cancel life insurance policy entire family using premium everyone bring family money purchase two property lose insurance cover question law 1 according social security law section 1237 aad waive debt special circumstance war threat financial hardship 2 according tosocial security actsection 1236 waive debt due administration error document centrelink provided shown 60 bank statement error 100 bank statement decision letter error like current centrelink statement still error applicant called tried tell want change annie walsh 3 5 time different respondent report different mistake almost three quarter property detail error includes photo wrong building wrong purchase date wrong purchase price purchase year applicant even entered australia yet document review office letter 4 according tosocial security act3 7 rasection 1070 waive debt due chia huey chen several injury eye become sensitive light causing tear eye get painful affect vision worse blindness swelling pain 5 according equality act 2010 justifying discrimination family trust asset like superannuation family 35 beneficiary two family trust jasmine one paid bill beneficiary still got blamed ground referred notice appeal question law mean necessarily accurate characterisation ground observe issue correctness decision cancel applicant benefit 15 march 2018 made reference applicant financial position date meanwhile issue waiver tribunal took account evidence relation applicant financial position handed decision distinction reflected ground appeal applicant submission application ground drafted appear irrelevant finding tribunal rely matter therefore relevant determination example applicant reliance eyesight issue suggestion blindness tribunal basis dsp granted similarly complaint relation superannuation exempt relevant mean test irrelevant tribunal finding correctness decision cancel benefit none property part superannuation fund time decision made cancel applicant benefit appears drafted ground go merit decision aat2 note also said applicant hearing application related merit assessment ground appeal relate tribunal finding rejected applicant submission debt waived tribunal made finding favourable applicant relation issue including administrative error respondent calculation pension entitlement 2010 persisted 2018 false statement misrepresentation result state mind attempted calculated deception chen 3at 80 92 122 however face ground drafted seem relate review factual conclusion waive debt relation ground based matter tribunal whether question law determined argument appeal however even ground waiver question law successful decision cancel benefit would affected indeed logically ground premised basis decision cancel applicant benefit correct given enforcement debt commonwealth related tochen 3will enforced applicant appeal resolved would basis grant stay result would benefit reinstated pending appeal ground alone hand respondent accepts ground 3 suggests error basis tribunal mistakenly identified asset may arguably question law whether outcome may result require resolution argument hearing note order made would permit applicant amend ground done however based current ground appeal nothing potential merit appeal would weigh favour granting stay noted applicant submits must pay bill property bill unable covered rental income property receive applicant submits need benefit pay bill relation property matter evidence applicant relation claim current financial hardship unclear respondent note finding tribunal applicant substantial asset real estate financial asset including numerous bank account according tribunal decision real estate unencumbered applicant make assertion financial hardship seems based proposition asset found tribunal attributable purpose assessment various social security benefit fact word proceeds basis tribunal incorrect applicant claim real estate control rather pay bill relation real estate personal account problem least respect appears likely challenge factual finding opposed question law tribunal found trust applicant contended pursuant provision s act applicant effective owner property effect sole controller trust chen 3at 77 involved least part factual finding role relation property included accepting evidence aat1 given person said trustee said applicant person made decision relation trust therefore property see example chen 3at 64 66 annexure decision aat2 contains valuation relation five property amounting 1 540 000 00 1 july 2017 appears valuation last property purchased late 2017 192 000 handwritten note affidavit dated 9 july 2019 suggests paid cash one property sold 14 december 2018 165 000 chen 3at 42 respect financial asset applicant affidavit application contain bank statement reflect bank account closed however document address account evidence became money held account instance account closed appears withdrawal substantial fund account shortly respondent cancelled applicant benefit became obvious applicant oral submission still six seven bank account money account although content account unknown applicant submission appears money cannot use hand stay granted benefit paid applicant unsuccessful substantive appeal money would need repaid would increase debt applicant owed respondent note notice appeal applicant complains debt gone decision aat2 increase debt generated result earlier grant stay recovery benefit paid applicant pending determination second review oral submission raised applicant complained debt risen since decision aat2 challenging tribunal note stay granted would render appeal nugatory applicant ultimately successful noted course submission applicant spoke many matter could relevant appeal court question law many matter relevant application effect submission plea tribunal wrong order entitled paid requested benefit weighing relevant matter applicant discharged onus demonstrate application stay granted stay decision aat2 necessary purpose securing effectiveness hearing determination appeal note applicant first raised issue stay first case management hearing based two concern first applicant prevented leaving australia visit family member china ill andsecond respondent would enforce judgment event neither proposition substance first respondent informed court department never issued departure prohibition order respect applicant would effect prevent applicant leaving australia department intention second respondent informed court departmental policy enforce debt commonwealth court proceeding foot challenging debt proper course case conclusionaccordingly refuse application grant stay judgment subject appeal certify preceding fifty eight 58 numbered paragraph true copy reason judgment herein honourable justice abraham associate dated 29 july 2019

Smarter Property Development Pty Ltd v QBSA [2009] QCCTB 217 (23 September 2009).txt

smarter property development pty ltd v qbsa 2009 qcctb 217 23 september 2009 last updated 22 october 2009_______________________commercial consumertribunalcitation smarter property development pty ltd v queensland building service authority 2009 cct qr210 07parties smarter property development pty ltdvqueensland building service authorityapplication number qr210 07delivered 23 september 2009delivered brisbanedecision paper mr w sheaffecatchwords cost proceeding section 70 71 4 thecommercial consumer tribunal act 2003decision category classification cnumber paragraph 36reasons decisionintroductionsmarter property development pty ltd applicant make claim cost queensland building service authority respondent backgroundin november 2006 applicant applied open builder licence mr raymond morgan evans applicant nominee licence granted february 2007 mr evans applicant nominee period 7 february 2007 6 july 2007 25 july 2007 16 january 2009 noted definition nominee schedule 2 queensland building service authority act required nominee either officer employee company came respondent attention mr evans advertised service nominee hire resulting appointed nominee total 11 company including applicant consequently respondent commenced investigation activity mr evans 8 may 2007 forwarded letter applicant seeking production document including document concerning employment relationship applicant mr evans mr vettyvelu ragunathan director applicant said knowledge mr evans advertising newspaper position nominee letter dated 25 may 2007 applicant wrote signed mr ragunthan saying since obtaining licence february year started building job far smarter property development pty ltd ray morgan evans employed casual basis act supervisory role construction building undertaken company building licence paid job accordingly attached agreement ray morgan evans smarter property development pty ltd kind perusal attached letter document styled casual employment agreement smarter property development pty ltd ray morgan evans content document included word raymond morgan evans agree accept employed casual basis smarter property development pty ltd perform supervisory role construction said company building licence number 1106737 respondent wrote letter dated 6 july 2007 received advice mr evans longer applicant nominee requested detail change nominee 6 june 2007 mr evan licence cancelled mr evans applied cancellation stayed 23 july tribunal granted interim stay pending completion two building project 31 july 2007 respondent forwarded letter giving notice intent cancel licence failure nominee letter attached nominee form completed advising change nominee detail 30 august 2007 respondent forwarded letter applicant described notice reason proposed cancellation suspension applicant licence listed particular vettyvelu ragunathan improperly used licence mr evans obtain company licence time licence application submitted mr evans officer employee company responsible supervision company building work bsa alleges mr evan licence used sole purpose getting company licence would otherwise entitled letter dated 12 october 2007 respondent notified applicant decision cancel applicant licence 24 october 2007 applicant filed review application seeking review decision respondent cancel applicant licence 8 january 2008 cancellation applicant licence stayed order member lohrisch pending finalisation proceeding cancel mr evans licence respondent made effort negotiate settlement offer rebuffed facsimile transmission 22 january 2009 marked without prejudice save cost respondent sought resolve review application basis applicant would withdraw party bear cost apart originating application affidavit mr ragunathan material filed concerning merit matter 3 february 2009 mr ragunathan telephoned respondent legal officer informed intended withdraw matter cct want incur legal expense another business 4 february 2009 respondent forwarded letter company lawyer mr wellner offered settle basis review application withdrawn party bear cost letter expressed without prejudice also said made pursuant part 7 division 7 thecommercial consumer tribunal act 2003 cct act mr wellner replied behalf client 12 february 2009 requesting direct contact made mr ragunathan saying asked mr ragunathan telephone respondent directly either offer rejected 25 february 2009 respondent wrote saying whilst respondent accepted mr wellner instruction reject offer mr ragunathan telephone conversation writer 2 february 2009 express desire negotiate settlement proceeding offer settlement similar term made way letter 25 february 2009 respondent expressed made pursuant part 7 division 7 cct act 6 march 2009 mr wellner replied via letter concluded circumstance matter proceed fax 11 march 2009 authority confirmed mr ragunathan telephoned respondent 10 march 2009 spoke senior compliance officer olivia mcmahon end negotiated resolution achieved 24 april 2009 respondent filed served application seeking leave discontinue defence nothing heard applicant lawyer 24 april 2009 date hearing 12 may 2009 leave granted respondent discontinue defence direction given issue cost submission cost subsequently filed party subsequently informed tribunal matter concluded consequently applicant persisting review application legislation17 thecommercial consumer tribunal act 2003sections 70 71 expressly provides 70 purpose div 7the main purpose division party pay cost unless interest justice require otherwise cost 1 proceeding tribunal may award cost considers appropriate application party proceeding b initiative 2 cost tribunal may award may awarded stage proceeding proceeding ended 3 tribunal award cost proceeding tribunal may order cost assessed proceeding end 4 deciding whether award cost amount cost tribunal may regard following outcome proceeding b conduct party proceeding proceeding c nature complexity proceeding relative strength claim made party proceeding e contravention act party proceeding f proceeding state agency party whether party proceeding afforded natural justice state agency g anything else tribunal considers relevant example paragraph g tribunal may consider whether party proceeding acting way unreasonably disadvantage another party proceeding tribunal may consider whether proceeding part proceeding frivolous vexatious 5 party proceeding entitled cost merely party beneficiary order tribunal b party legally represented proceeding 6 power tribunal award cost section addition tribunal power award cost another provision another act 7 tribunal may direct cost assessed way decided presiding case manager b person appointed tribunal applicant submissionsthe applicant outlined matter listed section 71 4 state respondent pay cost respondent submissions18 respondent hand argues order cost including reserved cost observation findingsthe relevant factor consider issue cost set section 71 4 cct act however primary rule party bear cost unless interest justice provides otherwise first issue outcome proceeding respondent withdrawn defence without admission concession applicant proceeding review application next issue conduct party proceeding respondent refers number relevant factor respect issue including failure company respond respondent initial correspondence submit document headed casual employment agreement recent invention treated scepticism willingness respondent compromise proceeding walk away basis resistance applicant effort respondent negotiate settlement proceeding failure applicant lawyer communicate respondent 24 april 2009 12 may 2009 leaving respondent choice seek leave withdraw defence contrary applicant critical respondent conduct soon mr evan licence cancelled respondent sought cancel applicant licence intention never cancel applicant licence put mr evans game respondent required file statement reason decided withdraw defence submission respondent deal issue raised mr ragunthan applicant submits conduct mr evans relevant alleged misconduct mr ragunthan applicant alleges motif respondent improper involved abuse process reject submission applicant conduct respondent involved abuse process improper conduct respondent nothing fulfilling legislative requirement letter dated 31 july 2007 set requirement section 48 e notice given required section 49 1 qbsa act next issue concern nature complexity proceeding respondent submits overly complex issue turning small array issue ventilated evan proceeding accept submission next issue relevant strength claim party proceeding submitted respondent case least arguable ignores fact respondent withdrew defence event applicant proceeding application therefore nothing gleaned relative strength party case respondent withdrawn defence applicant proceeding claim taking factor account especially fact respondent withdrew defence applicant proceeding review application appropriate case justice requires primary rule party bear cost overturned circumstance application cost dismissed orderthe application cost dismissed ______________________________mr w sheaffemembercommercial consumer tribunal

Veolia Water Operations Pty Ltd [2017] FWCA 6305 (29 November 2017).txt

veolia water operation pty ltd 2017 fwca 6305 29 november 2017 last updated 14 december 2017 2017 fwca 6305fair work commissiondecisionfair work act 2009s 185 enterprise agreementveolia water operation pty ltd ag2017 3719 veolia water operation pty ltd fairfield recycled water plant enterprise agreement 2016water sewerage drainage servicesdeputy president gostencnikmelbourne 29 november 2017application approval veolia water operation pty ltd fairfield recycled water plant enterprise agreement 2016 1 application made approval enterprise agreement known theveolia water operation pty ltd fairfield recycled water plant enterprise agreement 2016 agreement application made pursuant tos 185of thefair work act 2009 act made veolia water operation pty ltd agreement single enterprise agreement 2 applicant provided written undertaking copy undertaking attached annexure satisfied undertaking cause financial detriment employee covered agreement undertaking result substantial change agreement 3 subject undertaking referred basis material contained application accompanying statutory declaration satisfied requirement ofss 186 187 188and190as relevant application approval met 4 automotive food metal engineering printing kindred industry union known australian manufacturing worker union amwu bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 based statutory declaration provided organisation note agreement cover organisation 5 agreement approved 29 november 2017 accordance withs 54 operate 6 december 2017 nominal expiry date agreement is31 december 2019 deputy presidentprinted authority commonwealth government printer price code g ae426269pr598167 annexure

Vonk, Gijsbert --- "Social security protection of migrants from outside Europe" [2015] ELECD 1180; in Pennings, Frans; Vonk, Gijsbert (eds), "Research Handbook on European Social Security Law" (Edward Elgar Publishing, 2015) 446.txt

vonk gijsbert social security protection migrant outside europe 2015 elecd 1180 penning frans vonk gijsbert ed research handbook european social security law edward elgar publishing 2015 446book title research handbook european social security laweditor penning frans vonk gijsbertpublisher edward elgar publishingisbn hard cover 9781782547327section chapter 17section title social security protection migrant outside europeauthor vonk gijsbertnumber page 22abstract description purpose chapter discus eu law help bridge gap migrant worker social security protection facilitating protection right person moving eu eu social security law impact upon legal position person strategic option realising improvement number option discussed varying adopting unilateral protective standard signing major global instrument protection migrant worker option attention paid possibility linking regional co ordination standard establishing eu ibero american pact

0807540 [2009] MRTA 1709 (1 September 2009).txt

0807540 2009 mrta 1709 1 september 2009 last updated 8 september 20090807540 2009 mrta 1709 1 september 2009 decision recordapplicant m wei wan wangmrt case number 0807540diac reference clf2008 95184tribunal member james silvadate 1 september 2009place decision sydneydecision tribunal remit application skilled independent overseas student residence class dd visa reconsideration direction applicant meet following criterion subclass 880 skilled independent overseas student visa cl 880 230 schedule 2 regulation statement decision reasonsapplication reviewthis application review decision made delegate minister immigration citizenship refuse grant applicant skilled independent overseas student residence class dd visa unders 65of themigration act 1958 act applicant applied department immigration citizenship skilled independent overseas student residence class dd visa 30 august 2007 delegate decided refuse grant visa 28 october 2008 notified applicant decision review right letter dated 28 october 2008 delegate refused visa application basis applicant satisfy cl 880 230 schedule 2 themigration regulation 1994 regulation delegate found applicant satisfy cl 880 230 provided skill assessment relation nominated occupation pastry cook asco code 4512 13 applicant applied tribunal 7 november 2008 review delegate decision tribunal find delegate decision mrt reviewable decision 338 2 act tribunal find applicant made valid application review 347 act relevant lawthe skilled independent overseas student residence class dd visa onshore permanent visa eligible overseas student studying australia recently completed australian degree diploma trade qualification class visa contains one subclass subclass 880 skilled independent overseas student item 1128ca 4 schedule 1 regulation visa allows tertiary qualified overseas student apply visa granted australia criterion subclass 880 visa set part 880 schedule 2 regulation primary criterion must satisfied least one member family unit applicant visa member family unit applicant visa need satisfy secondary criterion primary criterion relevant review clause 880 230 must satisfied time decision read 1 arelevant assessing authorityhas assessed skill applicant suitable nominatedskilled occupation evidence become available information given used part assessment applicant skill false misleading material particular 2 assessment mentioned subclause 1 made basis qualification obtained australia applicant holder student visa qualification obtained result full time study aregistered courseclaims evidencethe tribunal department case file clf2008 95184 tribunal file 0807540 summary evidence file including department movement record integrated client service environment icse database follows applicant represented registered migration agent applicant first entered australia 17 january 2002 holder student visa held various student bridging visa time 30 august 2007 applicant lodged application subclass 880 visa subject review applicant identified nominated occupation baker pastrycooks pastrycook occupation asco code 4512 13 time application gazette notice instrument specifying skilled occupation immi 06 090 force 12 june 2007 31 august 2007 according instrument asco code 4512 13 pastry cook skilled occupation 60 point available relevant assessing authority occupation trade recognition authority tra applicant provided various personal educational document include academic record certification tafe queensland achievement aqf certificate iv hospitality patisserie metropolitan south institute tafe includes certificate iii course period september 2005 15 august 2007 applicant indicated applied tra skill assessment 24 august 2007 reference receipt number department wrote applicant 7 june 2008 30 july 2008 requesting provide skill assessment 28 october 2008 delegate refused applicant applicant provided skill assessment therefore satisfy cl 880 230 review application lodged 7 november 2008 includes letter department education employment workplace relation deewr dated 24 october 2008 stating tra assessed applicant skill suitable occupation pastry cook asco code 4512 13 1 september 2009 deewr verified writing tra skill assessment dated 24 october 2008 finding reasonsthe tribunal considers decide review applicant favour basis material pursuant 360 2 act therefore unnecessary invite applicant appear tribunal give evidence tribunal find evidence applicant nominated skilled occupation pastrycook 4512 13 applicant provided evidence tra assessed skill suitable nominated skilled occupation pastrycook 4512 13 tra verified assessment evidence information given used part assessment applicant skill false misleading material particular applicant therefore satisfies cl 880 230 1 tra assessment made basis aqf certificate iii according tra letter dated 24 october 2008 metropolitan south institute tafe letter dated 22 august 2007 department file folio 19 indicates applicant started 22 august 2005 tafe queensland academic history show applicant undertook certificate ii hospitality kitchen operation certificate iii hospitality operation concluded 15 may 2006 folio 18 19 tafe queensland academic history show applicant went complete certificate iv patisserie 15 august 2007 tra assessment based study period 22 august 2005 15 may 2006 applicant holder student visa metropolitan south institute letter dated 22 august 2007 department file folio 21 indicates qualification achieved full time study commonwealth register institution course overseas student cricos website list registered course http cricos deewr gov au course coursedetails aspx courseid 51811 tribunal find assessment made basis qualification obtained australia applicant holder student visa qualification obtained result full time study registered course follows applicant satisfies cl 880 230 2 applicant therefore meet clause 880 230 conclusionsfor reason given tribunal find applicant satisfies requirement cl 880 230 decisionthe tribunal remit application skilled independent overseas student residence class dd visa reconsideration direction applicant meet following criterion subclass 880 skilled independent overseas student visa cl 880 230 schedule 2 regulation james silvamember

Epworth Foundation [2014] FWCA 2846 (1 May 2014).txt

epworth foundation 2014 fwca 2846 1 may 2014 2014 fwca 2846fair work commissiondecisionfair work act 2009s 185 enterprise agreementepworth foundation epworth healthcare ag2014 696 epworth healthcare health professional enterprise agreement 2014health welfare servicescommissioner johnsmelbourne 1 may 2014application approval epworth healthcare health professional enterprise agreement 2014 1 application made approval theepworth healthcare health professional enterprise agreement 2014 agreement application made pursuant tos 185of thefair work act 2009 cth act made epworth foundation epworth healthcare applicant agreement single enterprise agreement 2 agreement lodged within 14 day made 3 commission satisfied requirement ofss 186 187and188of act relevant application approval met 4 health service union victoria 3 branch bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 commission note agreement cover organisation 5 agreement approved accordance withs 54of act agreement operate 8 may 2014 nominal expiry date agreement 1 may 2018 commissionerprinted authority commonwealth government printer price code j ae407922pr550134

El Tahche, Lelian [2002] MRTA 6694 (18 November 2002).txt

el tahche lelian 2002 mrta 6694 18 november 2002 last updated 3 april 2003 2002 mrta 6694catchwords review visa refusal subclass 300 prospective marriagereview applicant lelian el tahchevisa applicant camille badawi el tahechtribunal migration review tribunalpresiding member julie bailmrt file number n01 01662dept file number osf 2000 020096date decision 18 november 2002at sydneydecision tribunal affirms decision review finding visa applicant entitled grant prospective marriage temporary class visa statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural affair delegate refuse grant prospective marriage temporary class subclass 300 visa mr camille badawi el tahech visa applicant national lebanon born 20 april 1973 applied subclass 300 prospective marriage visa 18 july 2000 delegate decision refuse grant visa made 21 december 2000 jurisdiction standing2 m lelian el tahche review applicant sponsor visa applicant lodged valid application review tribunal 27 march 2001 decision reviewable tribunal application review properly made person standing apply review legislation policy3 themigration act 1958 act various regulation made act principally themigration regulation 1994 regulation provide different class visa criterion grant visa reaching decision tribunal bound act various regulation written direction issued minister section 499 act matter may subject policy found publication theprocedures advice manual 3 pam3 themigration series instruction msis produced department immigration multicultural indigenous affair department tribunal required regard policy apply unless cogent reason departing policy 4 tribunal power affirm vary set aside decision refuse grant visa also power remit application visa department reconsideration remittal may accompanied direction visa applicant meet one criterion visa matter minister delegate consider remaining criterion review tribunal generally limited consideration whether visa applicant meet one essential criterion application remitted decision affirmed basis 5 criterion policy immediately relevant review legislation regulation 1 15aof regulationsregulation 1 20jof regulationsitem 1215 schedule 1 regulationspart 300of schedule 2 regulationspolicy procedure advice manual 3 regulation 1 15a interpretation spouseprocedures advice manual 3 division 1 4b sponsorship nomination spouse prospective spouse interdependency visa procedure advice manual 3 schedule 2 prospective marriage visa 3006 tribunal generally regard regulation stood time visa application however subsequent amendment may apply circumstance evidence7 tribunal following document mrt case file n01 01662 departmental case file osf 2000 020096 8 department file discloses following background application 9 visa applicant sponsored connection visa application m lelian el tahche review applicant australian citizen born australia 20 april 1973 10 visa applicant claim met sponsor lebanon october 1996 relationship commenced november 1996 evidence provided support visa application included certified copy review applicant birth certificate certified copy visa applicant passport document including translation relating visa applicant release lebanese army police certificate translation provided visa applicant visa applicant family birth register translation visa applicant lebanese identity card translation 11 21 september 2000 visa applicant interviewed australian embassy beirut interview note department file record visa applicant stated among thing review applicant verbally engaged stated review applicant travelled lebanon first time 1996 mother review applicant 15 year age stated review applicant stayed lebanon two month uncle house second floor visa applicant lived first floor visa applicant stated relationship subsequently developed period stated went together visit tourist site visa applicant stated review applicant agreed would lodge application marry australia could leave army eligible age visa applicant stated took photograph people review applicant family photograph visa applicant stated review applicant send letter photo left lebanon 1996 communicated mainly telephone visa applicant stated english good arabic weak visa applicant stated used call week since 1996 however evidence substantiate claim stated review applicant call special occasion visa applicant stated couple intends use first month arrives australia get know visa allows nine month marriage take place visa applicant stated plan everything decided get australia 12 delegate stated visa granted basis satisfied visa applicant meet criterion clause 300 215 300 216 delegate found visa applicant review applicant genuine intention marry live together spouse reaching primary decision delegate regard following consideration evidence contact substantiate claim relationship visa applicant review applicant existed since 1996 photograph provided substantiate visa applicant review applicant actually met ring exchanged party celebrate engagement custom arab tradition plan place wedding take place australia review applicant travelled lebanon since 1996 history relationship provided visa applicant includes claim relationship existed since 1996 inconsistent evidence provided support application visa applicant knew little review applicant life australia inconsistent genuine intention marry 13 27 march 2001 review applicant lodged application review tribunal review applicant stated lodging application review impression whole case misunderstood stated detail interview visa applicant contradict fact would like opportunity explain detail provide supporting document 14 review applicant sent letter 8 august 2002 inviting review applicant provide information relevant review included evidence contact review applicant visa applicant evidence arrangement made marriage ceremony take place australia 11 september 2002 review applicant provided notice intended marriage form visa applicant signed marriage celebrant stating marriage arranged 25 january 2003 evidence quotation receipt tony family restaurant dated 2 september 2002 wedding 25 january 2003 also provided total cost 9800 11700 deposit 2000 stated paid letterhead document provide telephone number address restaurant 15 23 september 2002 tribunal wrote review applicant inviting attend hearing 9 30am 28 october 2002 letter also advised failed attend tribunal scheduled time s362b act allows tribunal make decision review without taking evidence allow appear could attend hearing requested advise tribunal soon possible reason tribunal would consider whether hearing rescheduled given telephone contact number question 16 9 october 2002 review applicant telephoned tribunal stating wished withdraw application advised consequence requested writing wished proceed withdrawal 17 review applicant attend scheduled hearing 28 october 2002 written withdraw application contacted tribunal seek different hearing time 18 visa applicant represented findings19 visa applicant attend hearing tribunal proceed finalise matter basis material ie department tribunal file 20 time visa application lodged class contained one subclass subclass 300 prospective marriage tribunal proceed consider whether visa applicant meet criterion visa 21 time application m lelian el tahche australian citizen validly sponsored visa applicant discussed withdrawing application tribunal accepts visa applicant continues sponsored review applicant time decision 22 based information tribunal neither visa applicant review applicant previously involved sponsorship nomination partner visa indication application affected limitation sponsorship underregulation 1 20j 23 clause 300 221 requires impediment proposed marriage party evidence tribunal would suggest proposed marriage visa applicant review applicant would invalid australian law 24 visa application made basis visa applicant prospective spouse review applicant clause 300 214 criterion time application party met known personally visa applicant claim met review applicant travelled lebanon holiday 1996 visa applicant claim review applicant became verbally engaged 1996 decided would lodge application marry australia able leave army review applicant becomes appropriate age 25 visa applicant provided documentary evidence photograph support claim 26 subclausecriterion 300 215 requires party genuine intention marry pam3 provides following requisite evidence must provided proof genuine intention behalf visa applicant sponsor marry 3 6 4 applicant provide evidence arrangement made marriage ceremony take place australia 3 6 5 case form evidence required signed dated letter letterhead authorised marriage celebrant conduct ceremony 3 6 6 letter must include case date venue marriage ceremony case see paragraph 3 6 7 3 6 8 confirmation notice intended marriage noim respect party lodged celebrant 27 tribunal accepts visa applicant review applicant provided letter authorised marriage celebrant confirming arrangement marriage ceremony noim lodged celebrant tribunal accepts party genuinely intend marry 28 clause 300 216 requires time application party genuinely intended live together spouse clause 300 216 requires continue case time decision 29 term spouse defined inregulation 1 15aas requiring genuine continuing relationship party mutual commitment shared life husband wife exclusion others 30 validly married sufficient enable couple meet definition spouse inregulation 1 15ain application migration spouse ground engaged intending get married sufficient found genuine intention live together spouse purpose prospective spouse visa 31 test set clause 300 216 prospective spouse minister must satisfied visa applicant sponsorgenuinely intend tolive together spouse defined byregulation 1 15a differs criterion spouse visa require effect minister satisfied party areactually living ina spousal relationship meet requirement ofregulation 1 15a 32 policy advises decision maker ass party intention live together spouse regard far practicable definition spouse inregulation 1 15aand pam3 div1 2 reg1 15a making assessment tribunal regard fact visa applicant sponsor living different country would reasonable expect common feature spouse application party australia present e g joint rental arrangement joint bank account 33 subregulation 1 15a 3 requires tribunal regard circumstance relationship forming opinion whether two person married relationship particular include financial aspect relationship 1 15a 3 nature household 1 15a 3 b social aspect relationship 1 15a 3 c nature person commitment 1 15a 3 34 time application decision however following reason tribunal satisfied visa applicant sponsor genuinely intend live together spouse 35 party claimed spent time october 1996 review applicant 15 year age adult time application see three year time decision seen six year 36 given separation age review applicant claim last spent time visa applicant degree contact becomes particularly important evidence strength relationship commitment 37 case although party claimed engaged six year documentary photographic evidence contact visa applicant review applicant provided evidence support claim engagement party lebanon party claimed interview telephone contact evidence form telephone bill telephone card provided supporting statement provided relative friend evidence exchange present card future plan provided 38 tribunal gave review applicant opportunity provide supporting evidence contact indeed contacted tribunal stating wished withdraw application review 39 tribunal find lack supporting evidence inconsistent claimed existence engagement married party since 1996 regard indicia spousal relationship subregulation 1 15a 3 evidence tribunal satisfied party genuine intention live together spouse 40 reason tribunal find visa applicant satisfy clause 300 216 time application 300 221 time decision 41 view finding relation clause 300 216 300 221 purpose would served tribunal proceeding consider visa criterion conclusion42 given finding tribunal alternative affirm decision review visa applicant meet essential criterion grant subclass 300 prospective marriage temporary class visa decision43 tribunal affirms decision review finding visa applicant entitled grant prospective marriage temporary class visa

V04_16634 [2004] RRTA 306 (23 April 2004).txt

v04 16634 2004 rrta 306 23 april 2004 refugee review tribunaldecision reason decisionrrt reference v04 16634country reference afghanistantribunal member m karen synondate decision made 23 april 2004place melbournedecision tribunal remit matter reconsideration direction applicant person australia protection obligation refugee convention backgroundthe applicant claim citizen afghanistan arrived australia applicant lodged application protection class xa visa department immigration multicultural indigenous affair themigration act 1958 act applicant protection class xa visa entitled considered criterion subclass 785 temporary protection provides 3 year temporary residence australia 866 protection allows holder settle australia applicant initially granted subclass 785 temporary protection visa basis person australia protection obligation refugee convention subsequently applicant applied protection class xa visa delegate minister immigration multicultural indigenous affair refused grant protection visa applicant applied review decision legislationunders 65 1 act visa may granted decision maker satisfied prescribed criterion visa satisfied subsection 36 2 act relevantly provides criterion protection visa applicant visa non citizen australia minister satisfied australia protection obligation refugee convention amended refugee protocol refugee convention refugee protocol defined in 5 1 act mean 1951 convention relating status refugee 1967 protocol relating status refugee respectively criterion grant protection class xa visa subclass 785 866 set inparts 785and866of schedule 2 themigration regulation 1994respectively protection obligationsaustralia party refugee convention protocol generally speaking protection obligation people refugee defined however subsection 36 2 qualified 36 3 5 act convention definition refugee article 1aarticle 1a 2 convention relevantly defines refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return high court considered definition number case notably chan yee kin v minister immigration ethnic affair 1989 hca 62 1989 169 clr 379 applicant anor v minister immigration ethnic affair anor 1997 190 clr 225 minister immigration ethnic affair v guo anor 1997 191 clr 559 chen shi hai v minister immigration multicultural affair 2000 hca 19 2000 201 clr 293 minister immigration multicultural affair v haji ibrahim 2000 hca 55 2000 204 clr 1 minister immigration multicultural affair v khawar 2002 210 clr 1 section 91r 91s act qualify aspect article 1a 2 purpose application act regulation particular person four key element article 1a 2 first applicant must outside country second applicant must fear persecution 91r 1 act persecution must involve serious harm applicant 91r 1 b systematic discriminatory conduct 91r 1 c expression serious harm includes example threat life liberty significant physical harassment ill treatment significant economic hardship denial access basic service denial capacity earn livelihood hardship denial threatens applicant capacity subsist 91r 2 act high court explained persecution may directed person individual member group persecution must official quality sense official officially tolerated uncontrollable authority country nationality however threat harm need product government policy may enough government failed unable protect applicant persecution persecution implies element motivation part persecute infliction harm people persecuted something perceived attributed persecutor however motivation need one enmity malignity antipathy towards victim part persecutor third persecution applicant fear must one reason enumerated convention definition race religion nationality membership particular social group political opinion phrase reason serf identify motivation infliction persecution persecution feared need solely attributable convention reason however persecution multiple motivation satisfy relevant test unless convention reason reason constitute least essential significant motivation persecution feared 91r 1 act fourth applicant fear persecution convention reason must well founded fear add objective requirement requirement applicant must fact hold fear person well founded fear persecution convention genuine fear founded upon real chance persecution convention stipulated reason fear well founded real substantial basis merely assumed based mere speculation real chance one remote insubstantial far fetched possibility person well founded fear persecution even though possibility persecution occurring well 50 per cent addition applicant must unable unwilling fear avail protection country country nationality stateless unable unwilling fear return country former habitual residence whether applicant person australia protection obligation assessed upon fact exist decision made requires consideration matter relation reasonably foreseeable future convention cessation article 1cin case person recognised australia refugee article 1a 2 article 1c convention set circumstance convention cease apply respect person paragraph 5 6 article 1c provide cessation refugee status due changed circumstance refugee country relevantly present matter article 1c 5 provides convention shall cease apply person falling term article 1a 5 longer circumstance connexion recognized refugee ceased exist continue refuse avail protection country nationality article 1c 5 contains exception cessation compelling reason arising previous persecution exception applies refugee recognised previous refugee instrument refugee recognised article 1a 2 central issue presented article 1c 5 whether individual longer refuse avail protection country circumstance connection recognised refugee ceased exist commentator expressed view purpose cessation clause change refugee country must substantial effective durable profound durable see example unhcr guideline international protection cessation refugee status article 1c 5 6 1951 convention relating status refugee ceased circumstance clause 10 february 2003 jc hathaway law refugee status 1991 200 203 g goodwin gill refugee international law 1996 84 however expression constitute legal test high court cautioned important return language convention see eg guo per brennan cj dawson toohey gaudron mchugh gummow jj 572 3 haji ibrahim per gleeson cj 5 gummow j gleeson cj hayne j agreed 147 hayne j 204 207 applicant make claim refugee reason unrelated circumstance connection recognised refugee claim fall assessed article 1a 2 convention subsection 36 3 actas noted subsection 36 2 act qualified subsection 3 5 therefore even non citizen satisfies article 1a 2 fall within one cessation clause person australia protection obligation purpose 36 2 act fall within 36 3 subsection 36 3 4 act provide australia taken protection obligation non citizen taken possible step avail right enter reside country apart australia including country non citizen national unless non citizen well founded fear persecuted relevant country one five convention reason thus example previously recognised refugee longer well founded fear persecuted country nationality one convention reason taken possible step avail right enter reside country 36 3 apply irrespective operation cessation clause claim evidencethe tribunal department file includes initial protection visa application record delegate decision grant visa present protection visa application record delegate decision refusing visa tribunal also regard material available range source applicant found person australia protection obligation convention reason found satisfy article 1a 2 convention definition refugee department decision found applicant faced real chance convention based persecution returned afghanistan would differentially vulnerable serious harm reason race religion applicant afghan citizen hazara ethnicity shia religion married man number child born lived kabul moved town early 1990s applicant several year schooling describes occupation pakistan multi skilled worker speaks read writes dari speaks read writes little pashtu english marital status single person travelled australia original claim made applicant statutory declaration detail applicant history deleted amended accordance withs 431as may identify applicant walking outside house returning home told taliban attacking part town house arrest would killed went home 1 wanted taliban shi hazara also financially well established looted shop taken belonging occurred number month year afghani calendar time person b wahdat party controlled town could continue life reasonably well year afghani calendar kabul house looted along shop mujahadeen house attacked rocket fire living underground time move town meant could start life relative peace taliban took started car spare part business business anymore able contact family number month district c area lived close fiend provided food shelter escaping taliban 1 terrified number month hiding sure sooner later would caught executed taliban decided leave one relative close fiend found hiding district c area found told wanted escape country could help find smuggler organized route afghanistan came protect 1 cannot return country whilst taliban control number month hiding unable lead sort normal life shia big problem persecuted country hazara allowed carry business life destroyed completely disrupted risk killed ethnicity religious sect subsequent applicant applying protection visa current application 18 february 2000 submitted additional claim statutory declaration dated 13 october 2002 follows born kabul afghanistan hazara ethnic shi muslim number year old married number child contact wife child rest family since left afghanistan date still afraid returning afghanistan heard hazaras shi muslim still attacked arrested tortured killed heard news radio internet still happening even though taliban longer power taliban came power hazara shi suffered many year hand group group still exist power afghanistan control area came group headed warlord include sayaf group hekmatayr group fahim group group regaining power afghanistan new alliance drawn known persecuted hazara shi people past good reason presume stop persecuting hazara shi one important reason afraid return afghanistan first statement support application permanent protection visa said relative arrested communist regime happened year around time number shi muslim people area arrested people never seen believe people killed included relative family house also confiscated time afraid arrested killed warlord sayaf atehad islami party warlord hakmatayr islamic party returned afghanistan afraid sayaf arrested year arrested sayaf wanted kill put gaol number day sayaf demanded money paid release able contact someone eventually released sayaf part coalition government kabul went back afghanistan certain sayaf would learn return arrested mention first statement asked fear afraid taliban power time sayaf returned prominence main fear related also afraid killed sayaf another pashtun warlord think member wahdat party think come area west kabul sayaf based sayaf think hazara region member wahdat party aware wahdat representative current government afghanistan think wahdat representative protect member party let alone hazaras confident interim government protect supporter moment even leader interim government karazi need foreign protection afraid going back town moved family number year ago hear situation bad heard one trust anyone person b cannot control commander anyone else listen news radio every week hear hazara shi killed time also hear uzbek tajik attacking shi including hazaras town 1 cannot go back kabul house shop destroyed nowhere else afghanistan could go back family living town also still afraid taliban former member al qaeda remain afghanistan heard still one million taliban member afghanistan fear still persecute hazara shi done past confidence future whatsoever return afghanistan still heard happened family afraid safety return afghanistan application reviewno new claim made application review submission prior hearingthe tribunal received 16 page submission applicant adviser submission contended relevant applicable test whether cessation clause applied applicant submitted multiple recent decision rrt determined change circumstance afghanistan would premature asset change sufficient enliven article 1c 5 submission also claim applicant continues well founded fear persecution agent past persecution including taliban al qaeda pashtun fundamentalist sunni group itehad islami associated mujahadeen political group also submitted given current political human right situation afghanistan would neither reasonable expect possible applicant safely relocate another area sustain livelihood submission also highlighted number security concern town hearingthe applicant gave oral evidence tribunal hearing conducted via video link assistance interpreter dari language applicant adviser present throughout two observer present law student working applicant adviser interpreter organised applicant adviser case need arose adviser applicant confer privately tribunal commenced hearing seeking satisfy applicant continues hold genuine subjective fear returning afghanistan tribunal asked applicant explain still afraid return afghanistan taliban effective authoritative government afghanistan applicant responded afraid sayaf fahim detained group led men early 1990s applicant said kill return tribunal asked detained arrested applicant said took front house kabul said know house close base lot fighting time tribunal asked knew family whether contact responded know tried time contact sending letter man returning afghanistan heard said telephone tribunal asked applicant many sibling responded one large family know sibling left town moved together left kabul applicant said eldest family tribunal asked applicant mention original claim fear sayaf fahim detained early 1990s applicant responded time taliban power fear related taliban thing changed people back afghanistan tribunal asked applicant continuing fear taliban said yes sayaf fahim pashtun back power kill said afghanistan period taliban tribunal asked fled town felt safe person b control said time town safe taliban came flee tribunal asked applicant whether return afghanistan would go back kabul town responded would safe either place people present town present kabul tribunal asked applicant think would interest men politically active responded sayaf fahim base area kabul people would recognise say person fought tribunal asked fight said tribunal said noted file made enquires returning afghanistan asked explain applicant said missed family badly wanted see thought thought probably could find anyway would safe tribunal asked applicant would like say anything else responded mentioned detained returned would detained killed life would danger said nowhere safe many people killed around kabul lived would think involved would killed applicant said request australian government accept help australian government one respect human right tribunal told applicant accepted continued hold subjective fear returning afghanistan based country information available regarding deteriorating security situation many part afghanistan uncertainty surrounding authority karzai government mandated election occur september evidence unchecked warlord activity many part country combined evidence resurgence militant activity taliban force recent month view cessation clause article 1c occurred country informationbackground overviewthe recent history afghanistan included twenty year civil political inter ethnic violence repressive rule communist government regional warlord islamic fundamentalist group taliban period virtual lawlessness mujahedin widespread population displacement severe drought factor undermined destroyed many civil legal administrative institution country leaving little capacity effective central government october 2001 usa ally attacked taliban force afghanistan harbouring osama bin laden member terrorist group al qaeda said responsible 11 september attack new york washington december main taliban force substantially defeated november december 2001 support united nation interested government ngo conference representative key afghan group held near bonn germany resulting agreement established interim administration govern holding emergency loya jirga grand council mid 2002 agreement also stated 1964 constitution would serve interim constitution constitutional loya jirga could held establish constitutional commission objective included judicial commission rebuild domestic justice system central bank afghanistan independent civil service commission provide list candidate administrative department human right commission institution yet fully established assistance requested international community help establish train new afghan security armed force december 2001 un security council established international security assistance force isaf secure kabul assist process developing unified national army loya jirga held june 2002 elected moderate pashtun hamed karzai president transitional authority would lead afghanistan fully representative government could elected national election due held june 2004 accordance bonn timetable karzai formed cabinet appointed governor 32 province following chronology found afghanistan report united kingdom home office dated october 2003 1964 constitutional monarchy introduced lead political polarisation power struggle 1973 mohammed daud seizes power coup declares republic try play ussr western power style alienates left wing faction join force 1978 general daud overthrown killed coup leftist people democratic party party khalq parcham faction fall leading purging exile parcham leader time conservative islamic ethnic leader objected social change begin armed revolt countryside 1979 power struggle leftist leader hafizullah amin nur mohammed taraki kabul amin revolt countryside continue afghan army face collapse soviet union finally sends troop help remove amin executed 1980 babrak karmal leader people democratic party parcham faction installed ruler backed soviet troop anti regime resistance nonetheless intensifies various mujahedin group fighting soviet force u pakistan china iran saudi arabia supply money arm 1985 mujahedin come together pakistan form alliance soviet force half afghan population estimated displaced war many fleeing neighbouring iran pakistan soviet leader mikhail gorbachev say withdraw troop afghanistan 1986 u begin supplying mujahedin stinger missile enabling shoot soviet helicopter gunships babrak karmal replaced najibullah head soviet backed regime 1988 afghanistan ussr u pakistan sign peace accord soviet union begin pulling troop 1989 last soviet troop leave civil war continues mujahedin push overthrow najibullah 1991 u ussr agree end military aid side 1992 resistance close kabul najibullah fall power rival militia vie influence 1993 mujahedin faction agree formation government ethnic tajik burhanuddin rabbani proclaimed president 1994 factional contest continue pashtun dominated taliban emerge major challenge rabbani government 1996 taliban seize control kabul introduce hard line version islam banning woman work introducing islamic punishment include stoning death amputation rabbani flees join anti taliban northern alliance 1997 taliban recognised legitimate ruler pakistan saudi arabia country continue regard rabbani head state taliban control two third country 1998 earthquake kill thousand people u launch missile strike suspected base militant usama bin laden accused bombing u embassy africa 1999 un imposes air embargo financial sanction force taliban hand usama bin laden trial 2001 january un imposes sanction taliban force hand usama bin laden 2001 march taliban blow giant buddha statue defiance international effort save 2001 may taliban order religious minority wear tag identifying non muslim hindu woman veil like afghan woman 2001 september eight foreign aid worker trial supreme court promoting christianity follows tension taliban aid agency ahmad shah masood guerrilla leader main opposition taliban killed apparently assassin posing journalist 2001 october usa britain launch air strike afghanistan taliban refuse hand usama bin laden held responsible 11 september attack america 2001 november opposition force seize mazar sharif within day march kabul city 2001 5 december afghan group agree deal bonn interim government2001 7 december taliban finally give last stronghold kandahar mullah omar remains large 2001 22 december pashtun royalist hamid karzai sworn head 30 member interim power sharing government 2002 january first contingent international security assistance force place2002 april former king zahir shah return say make claim throne 2002 may un security council extends mandate international security assistance force afghanistan december 2002 allied force continue military campaign find remnant al qa ida taliban force south east 2002 june loya jirga elect hamid karzai interim head state karzai pick member administration serve 2004 turkey take lead nation isaf 2002 july vice president haji abdul qadir assassinated 2002 september karzai narrowly escape assassination attempt kandahar home town 2003 february germany netherlands take lead nation isaf 2003 august nato take control security kabul organisation first operational commitment outside europe history u state department state report human right practice afghanistan 2002 released march 2003 provides background regarding recent development afghanistan afghanistan experienced civil war political instability 23 year arrival operation enduring freedom oef force collapse taliban 2001 helped begin bring end decade long pattern serious human right abuse functioning central government 1996 december 22 2001 afghan interim administration aia took office december 5 2001 u n sponsored afghan peace conference bonn germany approved broad agreement establishment transitional mechanism including 6 month aia govern country peaceful transfer power aia transitional islamic state afghanistan tisa mandated bonn agreement aia tisa formed judicial commission human right commission drafting committee constitutional commission begin process reform area civil service commission yet named june emergency loya jirga gathering afghan representative throughout country elected hamid karzai president transitional islamic state afghanistan karzai subsequently formed cabinet including two female member broad ethnic representation loya jirga unable reach decision formation legislative body deferred creation election scheduled june 2004 major provincial center control regional commander one significant exception southeast commander acknowledged karzai administration legitimate central authority karzai appointed governor 32 province 1964 constitution served interim constitution legal framework country judicial system country also set forth bonn agreement existing law inconsistent bonn agreement country international obligation applicable provision constitution remained effect judicial power rested supreme court karzai government rule law applied throughout country however practice recognition rule law particularly outside kabul limited year soviet occupation civil war resulted country law becoming mix code year much formal judicial structure deteriorated judiciary continued operate ad hoc basis 2001 taliban ultra conservative islamic movement controlled approximately 90 percent country october 7 2001 oef u led coalition began military action aimed toppling taliban regime eliminating al qa ida network country u force worked concert anti taliban force northern alliance well others southern part country mid november 2001 taliban removed power u military operation continued year especially southern eastern region capture detain remaining taliban al qa ida fighter international security assistance force isaf established december 20 2001 responsible security kabul command united kingdom later turkey outside capital regional commander warlord maintained local militia sporadic fighting continued across north among rival commander loyal jumbesh leader general abdul rashid dostum jamiat islami commander mohammad atta also skirmishing west near shindand herat leader ismail khan pashtun commander amanullah khan october pacha khan zadran warlord khost paktia fled khost month instigating attack force loyal karzai government refusing yield governor residence karzai appointee dislocation associated 20 year fighting together year severe drought reduced country economy subsistence level majority population u n sponsored health survey north january 2001 found alarming level malnutrition especially among woman child population approximately 25 8 million remained engaged agriculture animal husbandry previous year opium poppy mainstay economy largely financed military operation various provincial authority production dropped dramatically 2001 taliban ban poppy growth cultivation resumed produced one world largest poppy harvest year government made significant progress establishing democracy good governance first full year democratic government prolonged civil war political instability however reconstruction recovery central focus activity numerous problem remained government allowed citizen right change government loya jirga election deemed free fair however report intimidation interference loya jirga process member security force committed arbitrary unlawful extrajudicial killing official used torture jail prison prison condition remained poor overcrowding limited food medical supply contributed deteriorating health even death among prisoner approximately 500 000 displaced person sporadic fighting related security concern well drought discouraged refugee returning country karzai government generally provided freedom speech press assembly association religion movement however serious problem remained violence societal discrimination woman minority problem woman girl subjected rape kidnaping particularly area outside kabul security problem persisted local commander northern province targeted pashtun murder looting rape destruction property approximately 60 000 pashtun became displaced violence worker right defined although 1964 constitution generally prohibited forced labor local report indicated widespread disregard abuse internationally recognized worker right child labor persisted af ghanistan invited community democracy cd convening group attend november 2002 second cd ministerial meeting seoul republic korea observer remnant taliban rogue warlord sometimes threatened robbed attacked occasionally killed local villager political opponent prisoner year effort made bring justice person responsible serious abuse october 9 abdul shah taliban commander convicted mass murder sentenced 20 year prison similarly united kingdom home office report october 2003 document security situation afghanistan 5 54 bonn agreement raised possibility international security force afghanistan called upon international community assist formation national army police force 2b military technical agreement signed interim administration 4 january 2002 deployment international security assistance force isaf afghanistan work alongside afghan police maintain security around kabul britain agreed lead nation isaf initial three month mandate 25ac 39c isaf reached full operating capacity 4 500 troop 18 february 2002 39e 5 55 unhcr report dated 13 february 2002 indicated security situation whilst improved urban centre improved part country province pocket instability remained emerged often result unsettled power sharing agreement 11e unhcr update situation afghanistan dated july 2002 also reported insecurity remained major concern certain region 11m 5 56 isaf reported late april 2002 security situation kabul improved significantly since arrival according isaf ongoing statistical analysis crime rate decreased across city much 70 isaf reported general population kabul welcome security confidence isaf brings 89 respondent saying happy presence force low level incident involving isaf patrol isaf associated increased patrolling activity especially hour darkness lawless area city isaf continue work improve security situation area 40d late may 2002 evidence improvement security situation kabul provided night time curfew hour reduced curfew ran 2300 hour 0400 morning 40ac 5 57 danish fact finding mission kabul may 2002 reported security situation kabul generally good although certain area particularly district 5 6 7 civilian safety poor crime area mainly directed wealthy politically motivated crime also reported thought connection selection process loya jirga still underway time visit director danish committee aid refugee dacaar believe ethnically motivated violence kabul deputy chief police kabul stated security problem kabul attributed crime rate economic problem 8b september 2002 danish fact finding mission afghanistan source stated presence international peace keeping troop isaf kabul effect ensuring good security capital unama also advised presence isaf kabul improved security limited intimidation according co operation centre afghanistan situation kabul generally good harassment political arrest 8c 5 58 transitional administration limited reach outside kabul various warlord force continue control province 50 continued report tension fighting rival warlord particular north afghanistan mazar sharif city sholgarah district sari pul late april early may 2002 security commission set deal issue 19c 17h briefing paper issued hrw june 2002 highlighted factional rivalry open hostility affecting security situation northern afghanistan competing ambition two ethnically based armed party mainly uzbek junbish e milli led general abdul rashid dostum mainly tajik jamiat e islami led general atta mohammad reported led increase crime robbery rape violent crime apparently committed impunity line two party run southern part balkh province neighbouring sari pul province 17f fighting erupted late june 2002 40o 1 july 2002 president karzai sent four man team headed personal advisor ministry religious tribal affair north launch investigation factional fighting rival warlord 40q fighting also reported around gardez wardak province late april 2002 17h around kunduz late may 2002 20e 5 59 security situation also covered secretary general un security council report dated 11 july 2002 covering period 18 march 2002 reported kabul isaf continued positive impact security conjunction afghan police domestic security force however security afghanistan remains cause concern addition action ex taliban al qa ida armed faction nominally support bonn process continue pose threat consolidation peace civil government country particularly north rivalry jumbesh jamiat faction prevented establishment effective security mazar city secretary general also reported week prior report number armed attack robbery took place international aid agency time report credible measure taken address security problem 40 5 60 23 may 2002 un security council voted extend mandate international security assistance force period six month beyond 20 june 2002 commenting security situation kieran prendergast secretary general political affair said creation new afghan security institution would take time also said current security situation particular outside kabul remained major concern representative afghanistan attended meeting thanked international community assistance citing particular general establishment peace security country 39e 20 june 2002 uk handed leadership isaf turkey major general john mccoll commander uk force handed command turkey major general akin zorlu commenting achievement isaf general mccoll said dramatic change nature kabul achieved arrived great deal lawlessness situation city come life 25ay leadership isaf passed germany netherlands 10 february 2003 39h 5 61 secretary general also reported july 2002 sporadic fighting skirmish uruzgan laghman kunar wardak paktia khost nimruz province disputed governorship destabilized several province central government frequently unable quell military opposition governor legitimately named 40 5 62 isaf monthly report covering period 20 june 2002 31 july 2002 reported security situation kabul surrounding area generally calm said security circumstance remained potentially vulnerable demonstrated assassination vice president haji abdul qadir 6 july 2002 40y 5 63 quarterly report isaf operation covering period 1 november 2002 10 february 2003 turkish commander general zorlu reported kabul continued enjoy vastly improved security reporting period crime rate remain low full sense normality returned described atmosphere calm peaceful thriving commercial social life night curfew lifted 3 november 2002 first time since 1979 number rocket attack city hill beyond isaf area however due ageing rocket crude firing mechanism caused casualty damage property 40z 5 64 umama situation report 22 28 september 2002 reported stable calm security situation area afghanistan however situation north continued volatile despite recent spate recent fighting ceasing result intervention security commission 40ab 5 65 report secretary general united nation security council march 2003 said security remains serious challenge facing peace process afghanistan report stated since october 2002 rivalry factional leader worsened west force herat governor ismail khan local leader amanullah khan clashing late 2002 january 2003 fighting broke province baghdis force loyal ismail khan local governor gul mohammed kandahar dispute responsibility law order city resolved intervention tribal leader report also stated sporadic act terror continue occur several source early 2003 reported increased activity element hostile government international community afghanistan sign remnant taliban group faction loyal gulbuddin hekmatyar trying organise south eastern eastern border area 39h 5 66 unhcr returnee monitoring report issued spring 2003 stated situation kandahar province generally unstable due reported presence suspected taliban al qa ida element clash fighter group afghan military force occurred periodically since fall taliban 11o example june 2003 40 fighter believed allied taliban 9 afghan pro government militiaman killed major clash two group south east border region loikarez kandahar province 20g 5 67 swedish fact finding report published april 2003 stated security afghanistan improved region worsened others due factional clash repeatedly erupting rival political military figure attempting gain regional influence 61 july 2003 unhcr reported absence disarmament lack law enforcement consequence war economy given rise banditry criminality road travel become dangerous certain area including main road link money demanded bandit individual commander ambush checkpoint 11p beginning july 2003 least 11 people killed north country fighting two rival militia 25bt report published july 2003 amnesty international expressed serious concern ongoing security situation afghanistan stating situation country fundamentally changed 2003 anything deteriorated 7o 5 68 report un security council dated 23 july 2003 secretary general stated presence isaf kabul greatly contributed security city reducing crime instilling measure confidence citizen however remained pressing need international security assistance beyond kabul secretary general stated overall situation throughout afghanistan remained fragile many area show sign deterioration clash northern province balkh samangan sari pul occurred repeatedly jonbesh force general abdul rashid dostum jamiat force ustad atta mohammed resulting personal intervention two factional leader 39i 5 69 report also observed member group thought aligned taliban al qa ida hekmatyar leader hizb islami stepped activity along southern eastern border afghanistan resulting repeated clash coalition afghan national army force operating region u afghan military force khost paktia province come rocket attack several occasion 7 june 2003 suicide car bomber drove german isaf bus killing four soldier one bystander injuring 29 others 39i 5 70 spate attack took place august 2003 mainly south south east country involving suspected taliban al qa ida element 25bx response coalition force launched operation mountain viper mountainous territory southern afghanistan resulting death around 124 enemy fighter five government soldier 25bz 5 71 august 2003 president karzai replaced governor kandahar zabul province anti government insurgent active recent month 25by time governor herat ismail khan stripped additional post military commander western afghanistan president karzai said official cannot hold military civil post 25bw 5 72 august 2003 unama spokesman announced establishment faryab peace commission maymana faryab province formed representative governor office major faction jamiat jonbesh faryab police commission facilitated unama support mazar based provincial reconstruction team prt spokesman said commission would meet regularly address mediate resolve issue potential degenerate fighting example tension cause local commander vying power dispute ranging disagreement livestock annexation land extortion illegal taxation 40bb 5 73 september 2003 following call un president karzai isaf expanded help restore stability afghanistan province nato took leadership isaf previous month asked military expert begin studying feasibility extending force beyond kabul 40bc reference square bracket refer paragraph report amnesty international report entitled afghanistan establishing rule law ai index asa 11 021 2003 http web amnesty org library index engasa110212003 open eng afg published 14 august 2003 provided following background november 2001 u led military intervention afghanistan led fall taleban government 5 december 2001 talk brokered united nation un resulted agreement provisional arrangement afghanistan pending establishment permanent government institution bonn agreement bonn agreement provided six month interim administration interim administration intended first step toward establishment broad based gender sensitive multi ethnic fully representative government required respect international human right law interim administration entrusted task preparing emergency loya jirga followed constitutional loya jirga within 18 month 1 term bonn agreement emergency loya jirga convened elect head state transitional administration approve proposal structure key personnel transitional administration emergency loya jirga met june 2002 established afghan transitional administration ata headed president karzai december 2001 un security council authorised deployment international security assistance force isaf kabul surrounding area 2 isaf currently led nato credited increasing security kabul however rest afghanistan factional fighting continues rival armed group ata unable establish control outside kabul powerful regional commander wield power control private army commander incorporated ata placed supporter key position within police local government commander act high degree autonomy display little loyalty president karzai government lack security control ata outside kabul widely seen major factor hindering afghanistan transitional process system based upon rule law ata un secretary general international national non governmental organisation repeatedly called expansion isaf mandate however thus far security council isaf contributing country remain unwilling deploy troop outside kabul 3 march 2002 security council established united nation assistance mission afghanistan unama 4 unama mandated assist ata implementation bonn agreement unama headed secretary general special representative srsg lakhdar brahimi oversees work two pillar pillar one responsible political affair pillar two tasked co ordination humanitarian relief recovery reconstruction report security council setting mandate structure mission secretary general stated right based gender sensitive approach would integrated fully united nation activity afghanistan 5 number political affair officer placed pillar one structure term reference included promotion human right addition post senior advisor human right senior advisor rule law included office srsg however due staffing problem position currently vacant unama criticised failure fully integrate human right activity 6 particular mission unsupportive afghan call end impunity past human right violation addition human right component unama fragmented lack strategic direction ensured human right integrated unama activity moreover rule law activity perceived sole responsibility senior advisor rule law input rule law issue human right component unama result artificial fragmentation human right rule law unama failed engage activity support protection human right within criminal justice system furthermore unama mixed success effort support implementation bonn agreement particular support judicial reform process bonn agreement provided establishment three commission judicial reform commission constitutional commission human right commission mandated oversee implementation different part bonn agreement constitutional commission established april 2003 mandate draft new afghan constitution preparation constitutional loya jirga commission believed completed preliminary draft constitution commenced public consultation stated aim gathering view broad section afghan people without sharing draft text final draft constitution expected completed presentation constitutional loya jirga october 2003 constitutional commission widely criticised failing carry mandate transparent inclusive manner accommodating hard line factional leader 7 commission thus far disseminated preliminary draft constitution failed conduct meaningful public consultation broad cross section population including member civil society human right advocate afghan independent human right commission aihrc set june 2002 aihrc mandate investigate monitor human right violation establish programme human right education aihrc established regional office receiving actively investigating allegation human right abuse aihrc department concerned woman right right child transitional justice aihrc investigation unit started monitor prison system international human right law perspective however aihrc currently lack capacity engage encompassing judicial monitoring program including court observation aihrc competent staff already carried significant amount work progress made despite long delay part office high commissioner human right ohchr delivering promised program technical assistance aihrc judicial reform commission jrc established november 2002 composed 12 prominent afghan legal expert jrc mandated rebuild domestic justice system accordance islamic principle international standard rule law afghan legal tradition however creation bonn agreement jrc formal role administration justice jrc role limited proposing reform strategy seeking international donor assistance thus success jrc depends willingness formal judicial institution supreme court ministry justice attorney general office implement suggested reform thus far jrc struggled devise facilitate implementation coherent judicial reform strategy however jrc facilitated compilation applicable law convened working group currently redrafting legislation including criminal law presentation ata jrc also successfully initiated establishment legal education centre member jrc recently carried survey judicial system applicable law set bonn agreement constitution 1964 existing law regulation extent inconsistent agreement international legal obligation afghanistan party applicable provision constitution 1964 provided interim authority shall power repeal amend regulation currently however confusion regarding applicable law among legal professional result part recent history non reliance written law delay compilation dissemination applicable statutory law moreover currently lack clarity among many legal professional regarding nature interpretation interplay various source applicable afghan law reported relation justice system judiciary received support necessary ensure able resist pressure upon failure international community provide effective security bring end influence armed group left judiciary extremely vulnerable furthermore current lack arrangement protection court judicial officer witness victim undermines capacity judiciary assert independence result certain individual remain law place community able use threat intimidation form pressure influence judicial proceeding addition economic influence led widespread problem corruption security situation afghanistan including threat taliban remnant significantly since report un general assembly 2003 entitled situation afghanistan implication international peace security fifty eighth session 58 616 http www reliefweb int w rwb nsf vid 29920e0d696679b685256df6006a1935 opendocument 3 december 2003 refers deteriorating security situation major concern throughout country unchecked criminality outbreak factional fighting activity surrounding illegal narcotic trade negative impact bonn process reporting period attack international national staff assistance community intensified main security threat continue terrorist attack suspected al qaida taliban supporter hekmatyar government force united nation humanitarian community report concludes international community must decide whether increase level involvement afghanistan risk failure stated mandate set bonn accomplished present deterioration security halted reversed programme staff united nation non governmental organization others assisting afghan provided adequate protection relation overall security situation report note 15 security remains major concern throughout much country unchecked criminality outbreak factional fighting activity surrounding illegal narcotic trade negative impact security primary source instability remains terrorist activity suspected taliban al qaida supporter gulbuddin hekmatyar group targeted member transitional administration international community past year attack international national staff assistance community intensified march 2003 international staff member international committee red cross murdered uruzgan province month italian visitor killed zabul province united nation non governmental organization vehicle office also targeted sniper fire attack explosive resulting case loss life earlier year demining activity halted following deadly series ambush national deminers 7 june 2003 suicide car bomber detonated vehicle alongside international security assistance force bus kabul killing four soldier injuring 29 others deadliest attack force since deployment tragically month november 2003 witnessed series attack united nation staff facility culminating murder international staff member office united nation high commissioner refugee unhcr ghazni 16 november 16 throughout south south east particularly border area terrorist attack government force non governmental organization afghan perceived work support government increased coalition force afghan national army force conducted operation seek armed group prevent cross border infiltration nonetheless order guarantee safety staff united nation imposed severe travel restriction southern region see 57 850 2003 754 para 24 following event mid november 2003 united nation suspended road mission staff movement affected region reduced international staff level precaution necessary clearly hinder united nation ability deliver programme support peace process 17 another source insecurity continues rivalry armed faction skirmish rival faction north led establishment early 2003 joint security commission unama participates among success commission able broker ceasefires following outbreak fighting maymana faryab province april 2003 mazar sharif balkh province may october 2003 nonetheless tension remain high durable solution yet apparent regarding human right situation39 absence rule law afghanistan violation human right unfortunately routine reporting period unama received followed numerous complaint political intimidation many include claim medium civil society political party freedom expression curtailed violation observed mainly kabul herat lesser extent mazar sharif apparent increase abuse recent month constitutional reform process preparation national election get way particularly worrisome legitimacy process depends unhindered participation afghan report concludes following observation 77 12 month since establishment transitional administration time initial euphoria peace replaced complex legacy two half decade armed conflict result critical political process risk delayed strong political part government afghanistan member state required particular redress insecurity promote reform key government institution 78 transitional administration struggle consolidate authority extend mantle security province factional politics destabilize much country undermine effectiveness national government increasing sense among key constituency certain institution government neither accountable action reflective national aspiration climate ensuring secure environment constitutional loya jirga 2004 national election envisioned bonn agreement take greater importance outcome process lay foundation reconciliation stability process must perceived legitimate public participation must free intimidation political violence 79 success upcoming political undertaking therefore depends first foremost commitment major faction established military presence extending various part country every day key government ministry remain dominated factional interest another day afghan confidence central government eroded first among ministry must reformed responsible security nation defence interior intelligence continued reform send important signal country government commitment creation truly national security force build trust necessary successful disarmament demobilization reintegration programme additional time specific benchmark help ensure government international community able conduct credible election must identified met 80 security needed create environment political activity reconstruction well restriction development activity unstable part country without consequence denial security basic social service population area serf undermine public confidence peace process providing social sector reconstruction term school clinic road economic opportunity attributable central government build political support also loyalty national institution development opportunity also likely minimize entry illegal drug economy unchecked potential undermine much institution building effort rule law afghanistan context recently proposed injection 1 5 billion aid united state america would likely major impact rebuilding afghanistan particularly portion money would finance project could completed within year thereby maximum effect election 2004 81 disarmament demobilization reintegration armed group replacement national army training new professional police force rehabilitation justice system stemming threat posed illicit drug essential security prosperity restoration rule law afghanistan international community demonstrated commitment help establishment new security legal institution yet progress one area step towards peace afghanistan full benefit combined project felt year come 82 clearly grave challenge bonn process commitment international community afghan government must waver ensure bonn process succeeds consolidating peace stability indispensable international support significantly increased sustained international community need strengthen commitment provide security best way fill security gap member state give meaning resolution 1510 2003 contribute necessary resource enable isaf expand area needed 83 united nation remains committed fulfilling mandate set bonn present deterioration security halted reversed programme staff national international united nation non governmental organization others assisting afghan provided adequate protection increase attack united nation staff international afghan civilian engaged providing assistance furthering peace process matter utmost concern work aimed improving life afghan already suffered far much whoever perpetrator act may enemy people afghanistan enemy peace afghanistan whole region despicable act must condemned strongest possible term everyone criminal element behind must made understand resolutely opposed afghan authority well regional international actor whose interest duty protect promote peace process afghanistan similarly report united nation security council 2003 situation afghanistan implication international peace security dated 30 december 2003 1212 http www ecoi net pub ds584_02801afgh pdf reported overall security situation 5 afghanistan experienced deterioration security precisely point peace process demand opposite reporting period saw increase terrorist activity factional fighting activity associated illegal narcotic trade unchecked criminality last 90 day number reported incident targeting civilian exceeded total occurred first 20 month following signing bonn agreement height reporting period attack humanitarian community escalated rate one per month one almost every two day rate subsided past several week though threat international community remain number step taken minimize exposure 9 arbitrary rule local commander presence factional force significant portion country continued another source insecurity allegation continued community control often deprived basic right victim serious human right abuse north particular suffered effect factional fighting october week planned start pilot phase disarmament demobilization reintegration programme population mazar sharif balkh province subjected intense interfactional fighting 6 people reportedly killed 30 injured minister interior negotiated ceasefire heavy weapon disarmament agreement general atta mohammed general dostum implementation supervised joint security commission participation mazar sharif provincial reconstruction team unama 31 reporting period central government continued take step towards expanding effective control across country earlier reform measure see 57 850 2003 754 para 2 10 gradually yielded result increased revenue collection province assistance international community reporting period communication link established provincial centre kabul well provincial police station ministry interior provides direct line local administration tie region capital communication equipment donated ministry interior japan mid december 2003 32 nevertheless insecurity continued significant constraint beyond kabul factional leader continued resist government effort install national appointee province district appointment implemented lack institutional support particularly police seriously curtailed implementation government programme province kandahar currently one volatile area country capable governor recently installed lack necessary material logistical support number trained police insufficient funding salary basic equipment requirement notable exception gardez mentioned paragraph 30 presence international afghan national army force area deterred active resistance appointment senior official official supported credible sustained police presence within month marked increase stability 33 lesson mind central government working closely unama coalition force isaf donor government formulate nationwide stabilization plan aimed bringing together security improvement better local governance reconstruction activity pilot programme kandahar series step taken including regionally based police training begin around 20 december deployment 300 national police kabul disarmament demobilization reintegration project scheduled commence early 2004 newly established provincial reconstruction team provide security assistance effort supervising local police training supporting deployment afghan national army undertaking reconstruction critical government infrastructure specific regard human right report stated 45 issue noted previous report continue subject concern including intimidation independent medium political group human right violation committed local government official particularly police including arbitrary arrest intimidation torture extrajudicial killing abuse committed local commander armed group extortion intimidation rape murder illegal detention forced displacement abuse woman child including trafficking sexual violence forced marriage property seizure forced displacement particularly government official using cover law personal gain abuse committed local commander armed group remain serious concern notwithstanding mentioned effort expand authority government remains many case unable address arbitrary rule many agent unhcr report entitled compilation answer coi request afghanistan 2002 2003 17 december 2003 say security situation kabul kabul city divided 16 district district ministry interior police department police department police station different main area district addition city district kabul province also number rural district police department functioning well time isaf patrolling city rural district kabul day night besides structure national security department intelligence service staff also looking security population also presence mentioned administratively divided area authority tasked look security people patrol area responsible establish check post ministry defence also military presence kabul rural district made primarily member mujahideen various faction northern alliance jamiat sura nezar wahdat jumbesh itehadi islami harakat also member hezb islami official involved afghan non afghan afghan former mujahideen former najuibullah regime newly recruited person person using position within security system also ministry defense order settle personal political score reported many private jail broadly supporting view recent report amnesty international entitled afghanistan internal briefing ai concern cx 88504 dated 12 january 2004 state amnesty international reiterates position one forcibly returned afghanistan current time security situation several part country worsened considerably recent month large swathe afghanistan considered go area humanitarian development organization following targeted killing 11 afghan aid worker 2 international aid personnel 2003 resurgence taliban force believed behind attack well series deadly bomb blast recently kandahar explosion 6 january 2004 killed least 12 people many child tension within various ethnic political grouping appear heightened recent loya jirga met kabul recently decide new constitution process marred intimidation threat vote buying little national reconciliation reach central government continues extremely limited lack progress disarmament demobilization reintegration known ddr enables powerful regional commander retain control much country amnesty international view impossible describe afghanistan 2004 country post conflict situation 1 since november 2003 worsening security situation throughout afghanistan particularly south afghanistan seen almost complete withdrawal un agency southern part country killing eleven afghan aid worker two international personnel ongoing persecution civilian recent targeted killing particular minority group well death score innocent civilian addition insufficient aid reconstruction assistance international community coupled recent suspension un activity southern afghanistan continued hamper progress towards effective reconstruction afghanistan also deleterious effect security organisation view situation human right country deteriorating amnesty international belief present condition unlikely majority return afghanistan able effected condition safety dignity full respect human right including economic social cultural right returnee relation security commented security deteriorated throughout much country 2003 factional fighting worsening criminality thriving drug trade resurgence taliban al qaida contributing steadily deteriorating afghanistan attack targeted foreigner murder international committee red cross icrc staff member uruzgan province march 2003 killing un staff member bettina goislard unhcr november 2003 led withdrawal ngo un staff particular international staff aid project throughout south country eleven afghan aid worker also killed 2003 united nation non governmental organization vehicle office also targeted resulting case loss life humanitarian aid worker also target attack part country growing insecurity last month meant two third country readily accessible international aid agency conduct relief monitoring exercise since mid november 2003 united nation suspended road mission staff movement affected region reduced international staff level clearly obstructed ability united nation deliver aid program support peace building reconstruction activity factional fighting continues generate insecurity north afghanistan following skirmish force general dostum ustad mohammed atta maymana faryab province april 2003 mazar sharif balkh province may october 2003 ceasefire brokered however possibility violence remains highly probable insecurity prevalent urban center afghanistan countryside pace reconstruction afghanistan slows living condition ordinary afghan fails improve many turning extremist force revitalized taliban active south east east express disappointment present administration foreign backer u led military action along afghanistan border pakistan cause death consequent resentment presence foreigner space one week december 2003 total fifteen child killed two separate bombing u coalition force early january 2004 twelve member hazara minority killed targeted attack southern afghanistan kabul sharp decrease level security experienced afghan member international community example suicide attack late december 2003 killed five afghan security official near kabul airport police afghanistan capacity protect human right effective deployment policing service manner respect human right one key mean state fulfil obligation towards citizen international obligation amnesty international recognises task rebuilding police force afghanistan extremely difficult date enough support police leaving responsible vital job without qualification basic resource carry duty effectively rather protecting people afghanistan officer actually committing human right violation trust confidence police officer non existent many instance province police chief appointed armed leader thereby releasing criminal associated particular faction accepting bribe affiliated local militia wealthy enough affect release result ordinary afghan without monetary mean unable seek protection police commenting present environment said agreement final text afghanistan new constitution january 2004 hailed step forward afghanistan road stability however many afghanistan observer feel constitutional drafting approval process fact served deepen ethnic division highlighted fractured nature afghan society despite final agreement text polarization delegate along ethnic line extremely worrying future stability country much text passed little discussion issue national language subject heated debate final text constitution improvement way original draft hard see point implemented weak government country rule law almost entirely absent text extremely vague many crucial area therefore potentially open extreme interpretation looking increasingly likely election scheduled summer postponed 8 january 2004 unama spokesman quoted saying close impossible meet june date current security condition permit registration team go throughout country 300 000 voter registered date concludes amnesty international seriously concerned deteriorating human right situation afghanistan coupled high level generalised violence would appear number particular minority group also suffering specific targeted human right violation important note also sharp decrease level security experienced afghan kabul important disturbing report sam zia zarifi human right watch entitled losing peace afghanistan human right watch world report january 2004 document growing security threat resurgent taliban traditional warlord afghan right worry sign troubling despite initial enthusiasm rebuilding country world seems forgotten international support scarce comparison recent peacekeeping nation building exercise troubling inattention tremendously negative impact taliban force resurgent emboldened attack u troop well government president hamid karzai foreign community supporting warlord militia brigand dominate entire country including city kabul many woman girl freed taliban rule forced school job due insecurity poppy cultivation soared new high providing billion dollar taliban warlord petty criminal resist central government foreign state long mostly destructive history interference afghanistan affair pakistan iran saudi arabia india uzbekistan russia picking local proxy push agenda goal creating stable civilian government afghanistan face four different interlinked challenge increasingly powerful regional warlord resurgent taliban force growth poppy trade criminal activity continuing threat meddling regional power particular pakistan iran saudi arabia russia challenge grown pressing due international inattention likely become even threatening afghanistan enters politically charged election year constitutional process recently completed presidential election set june 2004 failure meet challenge greatly increase chance failure afghanistan return conflict savage afghan destabilizes central asia middle east south asia providing criminal terrorist world question isaf modestly successful increasing security kabul hence helping support remarkable economic development city witnessed last two year demonstrating quickly afghan work toward creating civil society given space even kabul immediate environs isaf could carry one central mission rid kabul factional militia armed men particularly associated force defense minister marshall fahim fundamentalist warlord abdul rasul sayyaf still roam street day engage robbery banditry night state affair lasted mid 2003 become apparent security situation afghanistan seriously deteriorating taliban resurfaced military threat south southeast serious clash taking place different factional force regular basis northwest west given reality european ally united state refused cooperate attack iraq felt compelled contribute operation afghanistan rule warlordswho warlord warlord technical word afghanistan literal translation local phrase jang salar simply come refer leader men arm country thousand men deriving power single roadblock others controlling town small area still others reigning large district apex chaotic system six seven major warlord significant geographic ethnic political base support last two year human right watch documented criminality abuse commander small large nearly major warlord general atta general dostum north ismail khan west gul agha shirzai south abdul rasul sayyaf center powerful marshall fahim senior vice president minister defense fahim background current behavior illustrates men inspire fear among afghan fahim one mujahideen fought soviet year predominantly tajik northern alliance group fabled leader ahmad shah massoud mujahideen forced soviet became chief security government burhanuddin rabbani inherited command northern alliance september 9 2001 suicide bomber assassinated massoud fortuitous leader last remaining credible force fighting taliban fahim found strong position negotiate grateful american military force gain important position transitional afghan authority thus innovative approach post minister defense brought army northern alliance force estimated include 70 000 troop posse heavy artillery land air transport vehicle armored vehicle loyalty president karzai civilian government afghanistan force behind fahim bullied karzai united nation united state giving vice presidency furthermore warlord u official neglect mention october 6 2001 united state began attacking taliban almost warlord left afghanistan time taliban either co opted major warlord destroyed arbitrary criminal rule local warlord part replaced brutal authoritarian rule taliban september 11 attack united state drew attention united state afghanistan return talibanthe warlord reemergence blatant misrule international community seeming acquiescence created fear despair around afghanistan nowhere among rural pashtun south pashtun afghanistan largest ethnic group comprising 40 percent population formed backbone taliban movement part reflecting greater prevalence conservative religious belief among pashtun part reflecting fear non pashtun group northern alliance gaining control afghanistan dominance tajik force kabul personified marshall fahim stoked pashtun sense marginalization political development afghanistan thus pashtun area southern southeastern afghanistan witnessed upsurge activity taliban force command gulbuddin hekmatyar long active extremist warlord link pakistani security force saudi arabian wahhabist group result upsurge absolute breakdown security pashtun area increasing human right violation united nation international nongovernmental organization consider nearly two third pashtun belt go area assassination november 16 2003 bettina goislard young french staffer u n high commissioner refugee underscored terrible threat goislard first u n worker killed afghanistan september 2003 average three dozen afghan international staff member various aid agency reconstruction team coming armed attack targeting foreign local humanitarian group suggests troubling change tactic taliban group opposed central government afghanistan resurgent taliban exhibited even violence le tolerance previous incarnation attack aid group period may august 2003 occurred nearly three time often period previous year flush income drug trade previously taliban seems avoided actively combated taliban outspend outman weak central government kabul even u force area around southern city kandahar taliban reportedly paying fighter much 70 week going 120 week fighter attack american force united state reportedly paying local warlord ally 60 week surprisingly taliban claim hold large portion several southern southeastern province one thing unites taliban local warlord ostensibly allied karzai government u force opposition legitimate political process afghanistan could return peace civility country human right watch documented numerous instance warlord intimidating local representative constitutional drafting process ended december warlord intent imposing representative upcoming afghan government thus completing entrenchment source power process began emergency loya jirga grand council june 2002 presidential election slated june 2004 approach likely warlord also step effort grab power taliban exhibited le interest influencing electoral process simply stopping declared constitutional process invalid instead offering limited version religious law night letter surreptitiously distributed pamphlet increasingly public pronouncement taliban threatened harm candidate well vote election taliban reserved special venom afghan woman daring enough stand candidate threatening also family impact taliban intimidation dramatic compared election preceding emergency loya jirga faced serious intimidation intrusion warlord participation election dropped across afghanistan lowest level seen south united nation reported popular participation election pick representative constitutional process low precinct challenge legitimacy election supporting view taliban resurgence report u agency international development usaid 2003 afghanistan complex emergency situation report 05 fy 2003 3 october note security situation recently deteriorated many part country due factional fighting intensified campaign attack al qaeda taliban fighter coalition troop afghan force international local relief agency sporadic attack civilian local official staff relief agency increased reflecting pattern shifting attack away coalition base toward vulnerable population spate attack mid august 2003 killed 90 people mainly civilian ten day period throughout country august 5 ten afghan worker local non governmental organization ngo coordination humanitarian assistance severely beaten gunman raided compound maiwand district kandahar province august 7 suspected fighter former taliban regime killed six afghan soldier driver ngo mercy corp helmand province august 13 factional fighting armed attack killed 60 people including two red crescent worker 15 afghan civilian six tisa soldier day involving death year score afghan civilian fighter reportedly killed separate incident elsewhere country throughout month violence august prompted u n suspend travel road across much southern afghanistan u n high commissioner refugee unhcr suspended work eastern province kunar following rocket attack close asadabad office august 10 mid september 2003 humanitarian organization warned worsening security would hinder reconstruction work attack relief worker occurring every two day compared rate one attack per month 2002 september 8 unidentified gunman killed four afghan working ngo danish committee aid afghan refugee dacaar province ghazni september 26 suspected taliban fighter attacked staff member voluntary association rehabilitation afghanistan vara unhcr partner agency resulting death one staff member attack afghanistan ngo security office anso advised 11 international humanitarian operation still underway afghanistan southern region suspend work indefinitely approximately 300 death august september marking violent period since taliban fell december 2001 http wwww reliefweb int w rwb nsf 480fa8736b88bbc3c12564f6004c8ad5 6a7c986e0a3741db49256db700146882 opendocument report titled responsible resurgence taliban dated 30 november 2003 gulf news united arab emirate draw parallel present situation 1995 saw taleban ultimately come power today two year forcing taliban kabul successful american northern alliance led military operation taliban force making determined comeback increasing attack foreign local troop since early october daily threat important city south southeastern afghanistan indicate risen ash like legendary phoenix determined regain power kabul current scene reminds one situation afghanistan mid 1990s 1995 taliban suddenly emerged afghan scene new force seeking rescue country continuous struggle among mujahideen faction provide stability safe heaven pakistan latter support able control afghanistan southern region make way towards kabul within year succeeded controlling major province establish medieval regime using islam justify barbaric rule security situation deteriorated point un pulled aid worker certain part afghanistan report un put afghan operation hold bbc news 18 november 2003 00 50 gmt state united nation suspended work southern eastern afghanistan following killing aid worker french un worker bettina goislard shot dead sunday unidentified gunman eastern town ghazni un official say seems strategy militant including remnant former taleban regime target aid worker country report titled stronger deadly terror taliban back observer uk 16 november 2003 state hi tech onslaught followed 11 september attack america appeared consigned taliban overfull dustbin afghan history recent month crawled taliban back moment confined isolated inaccessible lawless mountain valley power military political growing last week resurgent taliban began striking city heavily armed coalition troop effort limited hit run attack far flung government outpost aid project assassination moderate cleric past eight day attacked column armoured vehicle near pakistani border killing romanian soldier detonated series bomb kandahar city qalat capital zabul province taliban leader also refusing surrender turkish engineer kidnapped two week ago working key road kabul kandahar instead issued threat kidnap western journalist taliban expanding fast deputy governor zabul admits province controlled militia oruzgan province around half kandahar province beyond government authority even supposedly loyal area many loyal mullah omar maiwand district kandahar province sher ahmed hakiya local chief said many taliban given written pledge allegiance confident problem optimistic number new taliban unclear u led operation september claimed 300 kill seems little impact estimate several thousand fighter mobilised taliban controlled area mean taliban safe steady flow fund two prerequisite successful guerrilla movement third requirement local support taliban opponent aware june mullah omar set 10 man leadership council co ordinate new strategy aimed cutting south eastern afghanistan rest country aim according western diplomat kabul make region insecure development work taliban prevent benefit postwar reconstruction reaching local people disillusionment alienation created boost support one said far strategy working international aid organisation restricting operation south east damned dangerous day said one ngo security officer since council set taliban jihad much improved mullah abdul rauf taliban official said telephone interview result increasingly divided afghanistan tackling resurgent taliban problem compounded ethnic complexity afghanistan taliban almost exclusively drawn country majority pashtun tribe whose heartland south east karzai president pashtun government dominated tajik minority largely centred kabul north east increasing alienation felt pashtun make receptive taliban chauvinistic message taliban also able draw general anger many muslim course war terror taliban used wary osama bin laden brand hardline internationalised militancy project limited afghanistan bore ill feeling america west see key element supposed struggle muslim aggressive zionist crusader alliance bin laden greatest mujahid holy warrior muslim think ideal said rauf taliban official fighting jihad anywhere world cruel infidel brother ally sentiment yet reach sangesar though time running mullah akhtar said bin laden good muslim according islam expressed fervent wish saudi born militant launched war west somewhere afghanistan asked wanted congregation discussed question time responding road clinic school 9 february 2004 newspaper report entitled kabul security fragile suicide blast nato john chalmers reported reuters http www aopnews com emergence suicide bomb attack peacekeeper kabul show even afghan capital nato force concentrated far secure nato secretary general said monday calling international community lose focus nation still racked violence poverty booming drug trade jaap de hoop scheffer warned letting afghanistan slip status second theater situation fragile told reporter u military plane kabul due attend change command ceremony 6 420 strong international security assistance force isaf extremely difficult 100 percent defense horrible suicide attack member ousted taliban militia announced shift focus jihad holy war foreign troop target soldier main city say dozen would suicide bomber away remote rural area south east canadian soldier killed kabul last month suicide bomber day later british peacekeeper died suicide car bomb attack taliban claimed responsibility attack also said behind december suicide bombing five afghan security official killed capital recent article entitled taliban step guerilla attack afghanistan dated 2 may 2004 rahimullah yusufzai new jang pakistan wrote stepping guerilla attack taliban claiming inflicted significant loss u afghan national army number recent operation kandahar urozgan paktia province move seen sign growing taliban confidence top military commander mulla dadullah first time appeared qatar based al jazeera television channel wednesday provided detail taliban led anti u resistance dadullah given radio interview past first time fall taliban regime one leading guerilla commander agreed interviewed camera dearth volunteer wanting join resistance u led occupation force afghanistan fact lot hunter seldom prey u soldier rarely come fortified position said taliban fighter khost talking recent taliban attack spokesman abdul latif hakeemi claimed u afghan national army soldier suffered loss ambush wednesday near gardez paktia said 60 taliban fighter attacked convoy reached gunbat way gardez zurmat area quoting taliban source paktia hakeemi said least 18 u afghan soldier killed two half hour fighting u afghan national army yet confirm abovementioned attack hakeemi said nine afghan national army soldier killed two separate taliban guerilla attack wednesday night kandahar panjwai district one attack said five soldier killed taloqan village taliban attack charshaka village killed four afghan soldier afghan government admitted five soldier killed taliban attack taloqan village said nothing yet attack charshaka village according hakeemi four afghan soldier killed five made prisoner taliban attack government post near urozgan provincial capital tarinkot said taliban also seized military vehicle battle taliban came foot launch attack escaped vehicle seized remarked hakeemi taliban spokesman recalled fighter last week also stormed district headquarters panjwai kandahar burn building killed several soldier destroy many 28 military vehicle said 40 soldier militiaman district headquarters panjwai killed three taliban fighter sustained injury fighting maintained afghan government conceded attack panjwai district office last week gave far fewer number government casualty attack claimed taliban ntssyd refer research internet sou asia newsfromafghanistan afghanistannewsheadlines2004 htmunderscoring concern deteriorating security situation afghanistan department refugee humanitarian international division issued paper entitled country information legal issue relevance current refugee assessment relation afghanistan 6 february 2004 cx 89044 relation security protection stated 31 security environment afghanistan shifted since unhcr stated may 2002 seventy eighty per cent afghanistan safe return 28 march 2003 unhcr identified entire zabul province well ghazni province high risk area humanitarian staff result presence taliban supporter 2932 according report humanitarian staff purposely targeted extremist increase attempt intimidate local staff international agency trend seems indicate calculated use threat actual violence instil fear person local ngo staff community leader view influencing political social development 30 example two foreign aid worker italian tourist 13 afghan aid worker killed taliban orchestrated attack least 100 afghan policeman 8 american troop also died 3133 july 2003 unhcr reported main security concern 32 going military activity involving taliban al qaeda anti western mujahideen extremist group military faction commander presence resulting factional fighting north main rival party include hezb wahdat jamiat e islami junbesh e milli islami mainly divided along ethnic line hazara tajik uzbek respectively ongoing clash rival commander affiliated major party case severe consequence civilian population 35 report late 2003 indicate despite process put place build national army police strengthen legal system response government security force security concern yet fully effective sense abuse occur largely unchecked 38 south south east east province insecurity greatly exacerbated terrorist attack suspected taliban al qaeda supporter gubudeen hekmatyar element pose threat afghan national army significantly slowed reconstruction turn increase risk predominantly pashtun population become increasingly marginalised 378 july 2003 unhcr reported absence mechanism protecting citizen arbitrary act committed state quasi state organ civilian possible persecution non state agent also requires consideration unhcr identified following group particular risk violence harassment discrimination 45persons associated perceived associated communist regime others campaigned secular state transitional authority dominated former mujahadeen faction contains former member people democratic party afghanistan pdpa associated communist regime degree risk person group depends extent identification communist regime rank held family link level protection offered factional link 2004 electionsan associated press article titled afghan warns security election 18 february 2004 http www aopnews com reported top afghan official warned tuesday security must improve lawless region south east country election proceed june planned comment foreign minister abdullah came visiting pentagon budget chief dov zakheim conceded 1 500 soldier left afghan army zakheim said desertion _ apparently pay condition _ exaggerated recruit capacity train violence rage largely unabated region country two year ouster hard line taliban regime u led force tuesday fighter loyal two senior afghan government official exchanged gunfire bazaar southern kandahar province wounding four people police saidwith security needed lawless area worry slow progress official making establishing new national afghan army government u backed president hamid karzai still little control beyond capital powerful warlord private militia hold key position administration taliban led insurgent abdullah like many afghan us one name conceded keeping june schedule election mandated country first post taliban constitution adopted last month required better security area insurgent active course need focus improving security area southern afghanistan done far help international community said effort needed make sure election time united nation supporting election warned june poll unrealistic without vastly improved security schedule election originates peace process hammered conference bonn germany taliban ouster yet key element process including disarmament warlord recruiting national army give central government power yet happen associated press reported article entitled u n official see afghan election threat 7 april 2004 afghanistan election already postponed september still jeopardized unless security improves military force disarmed senior u n official warned tuesday undersecretary general peacekeeping jean marie guehenno said vital afghan government meet commitment speed disarmament effort demobilize 40 percent current militia lock heavy weapon june also stressed increased international security assistance essential protect electoral process factional threat radical attempt oppose process election originally set june president hamid karzai delayed late last month september heeding u n warning neither security logistics place quicker vote afghan international security force currently available limited overstretched face task holding meaningful credible election across country guehenno warned without improvement security situation election threatened guehenno expressed hope new afghan army able deter factional violence newly trained interior ministry unit might deployed larger number create freer environment election role warlord former mujahadeen afghanistansome relevant extract human right watch report entitled killing easy thing u human right abuse southeast afghanistan released july 2003 vo1 15 05 c follow enough done national international level address cause afghanistan ongoing human right security problem president hamid karzai taken positive step case part weak politically implement change might limit end day day abuse karzai recent effort sideline regional commander particularly effective partially lack u support afghanistan independent human right commission significantly increased activity first half 2003 little power affect situation beyond cautiously monitoring abuse calling change commission little protection commission member understandably fearful challenging warlord united state international community major power broker afghanistan put little pressure military leader outside kabul obey president karzai authority uphold human right standard relinquish power continued funding joint operation fraternizing warlord sent best mixed message goal intention many u u n afghan official asserted solution afghanistan security problem lie creation new afghan army claim sidestep fact plan fruition lie year away one military faction shura e nazar dominates ministry defense therefore effort rebuild army former fighter commander channeled new army disarmed demobilized civilian life defense ministry must reformed made politically ethnically representative afghan society plan disarmament demobilization reintegration ddr former fighter commander drafted afghanistan new beginning program anbp however currently designed ddr plan lack adequate enforcement monitoring mechanism offer sufficient incentive adverse consequence sideline entrenched commander plan oriented predominately toward providing incentive low level troop contain provision deal powerful warlord indeed plan directly address major commander herat governor ismail khan kandahar governor gul agha sherzai defense minister fahim give private army issue vital success ddr program considered political issue distinct supposedly technical issue ddr karzai government u military u n struggled devise plan enforcing disarmament plan dealing spoiler might seek comply example united state put pressure defense minister fahim loosen grip power overly cautious approach afghanistan warlord many leader fight taliban soviet union step aside allow civilian governance message clear kabul world capital future afghanistan lie militarization rule gun demilitarization rule law ten thousand former fighter commander demobilized disarmed integrated back society afghanistan put firmly civilian rule troop commander past made civilian endemic fighting endemic human right abuse security force put end followed another human right watch report similar vein entitled afghanistan warlord still call shot john sifton published asian wall street journal 24 december 2003 past week delegate afghanistan constitutional loya jirga grand council meeting approve new constitution country still wracked violence disunity two year fall taliban international community hopeful new charter country pave way democratization stability yet pessimism may still order election delegate meeting earlier fall marred vote buying death threat general intimidation many candidate told early december environment fear kept even standing election warlord proxy ran large number province local warlord elected despite rule preventing running independent minded people elected part process dominated warlord ally even kabul problem despite presence international peacekeeper united nation official hundred journalist help protect monitor election kabul regional election resulted election feared mujahidin leader abdul rabb al rasul sayyaf whose ittihad e islami faction involved worst fighting kabul 10 year ago much city destroyed municipal election held tent gazi soccer stadium taliban used execute people also flawed though election site guarded canadian british peacekeeping troop monitored u n many candidate complained voter intimidation right site massive campaign buy vote 200 500 per person u n official even witnessed two worker kabul dominant military political faction shura e nazar sitting table near ballot box checking vote voter approached ballot box opened voting card show two men checked voter name list u n confiscated list banished two men vote counted also scary collection tufangdaran gunman dari walking kabul election site saw arif noori head fear inspiring afghan intelligence agency amniat e melli kabul city intelligence deputy chief deputy minister defense zalmay tofan senior commander sayyaf implicated war crime committed early 1990s mere presence men like creates atmosphere fear since many afghan know men involved abuse past although courageous people stood gunman block vote delegate loya jirga went regional kingpin like sayyaf western stongman ismail khan northern warlord general rashid dostum former president afghanistan factional leader burhanuddin rabbani also elected northeast following race one opponent received death threat faction picked dozen seat nationally men control block vote loya jirga using advance private agenda increase political power worse still meeting underway dominated warlord gut stand gunman faced severe pressure one woman delegate malalai joya stood complained warlord dominance last week almost thrown convention requires full time security guard needle add woman right issue robustly debated meeting yet probably matter much meeting going better sad truth entire process already scripted end president hamid karzai meeting warlord trying get support draft constitution contains strong presidential power human right protection probably succeed constitution may create strong presidency paper contain tepid human right protection seems likely sayyaf warlord ultimately emerge stronger end convention continue stranglehold afghan politics ultimately real problem entire loya jirga process oriented toward status quo nothing draft constitution address afghanistan warlord dominated power dynamic real decision still made behind closed door men gun united state supplied weapon cash many warlord since 2001 seem get along mr karzai u official still emphasizing constitution coherent strategy marginalizes warlord power brokering repressive political kingpin way forward instead time address afghanistan protection vacuum allowed local warlord dominate process sunday announcement united state deploy small security unit countryside welcome step additional expansion needed troop country many u n human right monitor deployed across country afghan trouble someone turn local gunman alternative allow warlordism factionalism run rampant 25 year war afghan deserve better similarly report international crisis group icg entitled disarmament reintegration afghanistan 30 september 2002 stated domination afghanistan political landscape armed party individual commander still principal obstacle implementation political process agreed bonn conference late 2001 without credible process disarmament demobilisation reintegration former commander fighter society inconceivable key element political process including adoption new constitution judicial reform election meaningful implemented http icg beta web easynet home getfile cfm id 968 similar view expressed report care centre international cooperation afghanistan policy brief 15 september 2003 titled good intention pave road peace many area country limit aid community half afghanistan 32 province area deemed high risk aid work september 2003 three province medium risk area five others saw factional fighting tension august 2003 number attack un ngo increased last year afghanistan hope reconstruction grew increasingly fragile afghanistan security threatened 1 militant dedicated regime overthrow 2 afghan warlord 3 narco criminality individually serious threat together danger compounded warlord continue control army dwarf afghanistan national security force size since 2001 u funded rearmed garner support operation enduring freedom grown militarily stronger richer coalition payment illegal taxes10 growing opium revenue warlord want regime overthrow everything gain weak national security structure government straightjacketed lack funding capacity force absorbed demobilized threaten afghanistan security warlord power endure long two key objective u foreign policy war terror establishment strong central government work cross purpose supporting warlord achieve former objective u may undermining latter objective critical u find way defeat extremism afghanistan also limit power afghanistan private militia leader http www reliefweb int library document 2003 care afg 15sep pdf hazarasthe hazaras one largest fifty different ethnic group afghanistan according various figure comprise 10 20 afghan population twenty million distinguished central asian mongol appearance bulk afghan population fact follow shia branch islam majority afghan sunni muslim historically hazara population concentrated area known hazarajat cover central province bamiyan well part neighbouring province ghor orozgan ghazni wardak parwan baghlan samangan sare pol last 130 year various military incursion territory dispersed hazaras area hazara minority scattered throughout much country including kabul hazaras widely regarded second class citizen afghanistan time conflict particularly vulnerable extremist movement sunni islam taliban regarded hazaras heretical shia belief physical distinctiveness made easy target group since fall taliban group overtly targeted remain marginalised vulnerable particularly area form minority although kabul hazaras employed administration overall group still suffers discrimination education employment absence effective national security force little protection available stronger group hazarajat hazaras majority population politically disorganised power lie hand local commander militia operate impunity perceived rival june 2003 tribunal commissioned expert opinion dr sayed askar mousavi middle east centre st anthony college oxford situation facing hazaras afghanistan entitled hazaras jaghori kabul 2003 paper stated position hazaras kabul le reverted 30 year ago although handful hazara shi leader present hamed karzai government hazaras marginalised politically economically socially culturally total 27 cabinet minister 13 pashtun 7 tajik 2 uzbak hazara shi group 1 turkmen word pashtun hold 50 seat rest group together hold remaining half real power lie hand pashtun tajik ethnic group including hazaras token presence cabinet hazaras small presence workforce kabul probably smallest among main ethnic group hazaras rarely seen either government position staff international organisation currently amongst top employer kabul visit office bbc undp unama internews saw one hazara employee bbc far majority employee section pashtun tajik hazaras often employed organisation hazarajat place observed real presence hazaras independent aid cultural organisation set hazaras cca cooperation centre afghanistan handful publication even amongst small enjoy much power presence sustained primarily fact simply filling gap workforce hazara society one else even pay attention hazaras kabul live almost parallel existence without real integration development taking place city evidently seen total lack attention paid mostly shi hazara inhabited area west kabul new government west kabul saw deepest destruction mujahideen war early 1990s home left standing throughout large part kabul nowhere else thoroughly systematically bombed ruin city many much le destroyed area kabul seen total repair past 18 month west kabul still one vast ruin reminiscent dresden coventry end wwii electricity drinking water alternate day school repaired local economy still dead unemployment rampant leading growth drug scene addict accompanied rising crime particular theft burglary inevitably led increasing insecurity point international organisation even venture area even visited seen situation firsthand also little sign isaf force responsible policing security kabul security area provided united front northern alliance force belonging jam iyat e islami fought hazaras area 1992 95 part responsible destruction mousavi 1998 196 200 consequently west kabul continued witness social disturbance past 18 month tension remains high hazaras constitute sixth finger afghani society observation current situation afghanistan confirmed regression worsening situation virtually every aspect presence afghanistan thirty year ago outbreak various civil war ethnic conflict plagued afghanistan certain section hazara society managed achieve level economic success hazara student seen university first time hazara intellectual making inroad political life country 2003 hazaras lost advantage aftermath defeat west kabul 1995 currently grip defeat humiliation eye others afghanistan hazaras often portrayed spoken denigrating term television example often face similar attitude government office treated criminal police security force far reconstruction development agenda concerned hazaras hazarajat far subject major plan project government attitude current problem hazara community throughout afghanistan leave device result poverty unemployment discrimination remain lot hazaras 2003 bahar weekly 2003 3 two main source threat hazaras afghanistan war hungry local commander historic victimisation hazaras time general insecurity unrest city kabul main source insecurity hazaras historic tendency police security force pick hazaras lack kind real power political economic social hazaras considered soft target currently exacerbated fact yet national police force operation policing done remnant united front place source insecurity hazaras part west kabul absence law order regular assault made pashtun inhabitant paghman height directly overlook part capital told stay kabul hazaras suffered theft harassment first hand also told largest number complaint submitted hamed karzai office concern lack security west kabul march 2003 direct clash took place area police local people asked involved reason clash told group hazaras dasht e barchi district west kabul fed victim crime wherever lived nowhere else kabul like safe anywhere hazarajat kabul long queue forming outside iranian pakistani embassy day day saw many hazaras returned afghanistan voluntarily wanted leave met many hazaras come back find land home repossessed inhabited new owner long absence original owner taking refuge abroad led many case illegal ownership shrewd opportunist squatting need either case returning original owner always able reclaim property left resourceless absence official assistance area karte sakhi west kabul traditionally almost exclusive inhabited shi hazaras systematically resettled pashtun taliban leaf fate many property original owner area unclear latter owner left area since fall taliban original owner remain homeless 90 hazara returnees kabul unemployed including good educational qualification gained abroad despite clear shortage manpower example met many hazaras postgraduate degree obtained iran failed employed kabul university even though last ten year fighting left university current academic staff often first degree obtained already academically impoverished previous decade ironically kabul university located mainly hazara inhabited area west kabul however stopped marginalisation alienation hazaras mainstream society kabul mentioned earlier hazaras also small diminished presence amongst university student body would say token presence relocation hazaras neither practicable acceptable current social condition practicable lack required legal economic security framework support fact hazaras deprived overlooked aspect life afghanistan hazaras along uzbak subject repeated campaign land home appropriation pashtun past century domination pashtun much still existence socially psychologically hazaras since 1891 suffered periodic genocide resettlement making protective property also identity position ethnic entity afghanistan furthermore since failed enjoy feel security homeland would unlikely accept resettlement alien territory 2003 hazaras remain politically underrepresented economically socially excluded lack basic security wherever choose live afghanistan swiss refugee aid organisation report 18 november 2003 entitled afghanistan safety return hazara kabul published german translated english behalf tribunal regard return hazara kabul refer report amnesty international june 2003 report emphasis urban area including kabul considered sufficiently safe stable order satisfy requirement return safety dignity past month kabul achieved certain degree safety compared rest country safety area kabul western kabul continues volatile safety kabul largely attributed isaf effect3 however effective influence state security force isaf peace keeping army mandate intervene violation human right without ordered government consequently harassment widespread use violence police towards civilian violence unaccompanied destitute woman well petty crime form part isaf mandate september 2003 unhcr confirmed report kabul abuse power member group occupying land house increasing urbanisation place strain water electricity supply kabul many returnees domestic refugee live tent semi destroyed public building others share flat unhcr emphasis regardless improved safety situation kabul due isaf presence compared rest country certain person even risk kabul prosecutor specifically search likelihood recognised kabul depends important factor principle possibility going hiding exist economic opportunity safety afghanistan always predominantly arise recognised people encounter old acquaintance elementary prerequisite integration new place estimated level influence reach certain group commander varies considerably according advice local expert swiss refugee aid organisation made enquiry looking somebody specific location example street day labourer awaiting work due fact kabul populated according geographic region mean one two block correspond village region people observe go mosque place somebody show compared large city europe life kabul nearly anonymous could assumed information neighbour neighbourhood extremely important individual safety person refusing give information quickly raise suspicion people http www fluechtlingshilfe ch imgupload gutachten_laenderberichte 031118_afg_hazara_muhajir pdf finding reasonsthe tribunal gave decision review conclusion hearing held following reason applicant initially recognised australia refugee basis circumstance prevailing afghanistan therefore purpose convention remains refugee relation circumstance unless one cessation clause article 1c applies provision relevant fact case article 1c 5 longer circumstance connexion recognized refugee ceased exist continue refuse avail protection country nationality emphasis added tribunal therefore considered whether accordance article 1c 5 convention applicant longer continue refuse avail protection country nationality circumstance connexion recognised refugee ceased exist tribunal carefully considered whether case circumstance connection applicant recognised refugee fact ceased exist applicant recognised refugee hazara ethnicity shi religion threat persecution ruling taliban people taliban ruling authority defeated tribunal turned mind circumstance led widespread persecution hazara shi people rule whether circumstance taliban able rapidly rise take control county might still exist taliban ultra conservative pashtun based sunni islamic movement rose national power base south east country took advantage power vacuum created intense factional rivalry fighting former member mujahadeen northern alliance able assume dominance backdrop decade instability fighting intense inter ethnic killing time provided stability return law order tribunal based upon reading view taliban would able take control country entrenched rivalry hatred within various ethnic group led prolonged period lawlessness within afghanistan turning mind circumstance relation applicant recognised refugee tribunal view critical position taliban ability oppress persecute historical prevailing activity warlord tribunal view situation changed within present afghanistan tribunal accepts authoritative report cited fragile precarious nature karzai interim government reliance former mujahadeen member warlord authority support tribunal accept government afghanistan effectively rule county rather relies upon alliance warlord private militia even within kabul many source agree government authority reliant private army police force former war lord commander continued ethnic rivalry dominance karzai government particularly important light well documented growing threat taliban remnant former taliban member active different auspex including al qaeda un general assembly report 3 december 2003 cited stated main security threat continue terrorist attack suspected al qaeda taliban supporter hekmatyar government force un humanitarian community emphasis added un security council report 30 december 2003 cited stated afghanistan experienced deterioration security precisely point peace process demand opposite reporting period saw increase terrorist activity factional fighting amnesty international report 12 january 2004 cited said amnesty international reiterates position one forcibly returned afghanistan current time security situation several part country worsened considerably recent month large swathe afghanistan considered go area humanitarian development organization following targeted killing 11 afghan aid worker 2 international aid personnel 2003 resurgence taliban force believed behind attack well series deadly bomb blast recently kandahar explosion 6 january 2004 killed least 12 people many child tension within various ethnic political grouping appear heightened recent loya jirga met kabul recently decide new constitutionand human right watch report january 2004 cited stated afghan right worry sign troubling taliban force resurgent emboldened attack u troop well government president hamid karzai foreign community supporting warlord militia brigand dominate entire country including city kabul warlord reemergence blatant misrule international community seeming acquiescence created fear despair around afghanistan nowhere among rural pashtun south pashtun afghanistan largest ethnic group comprising 40 percent population formed backbone taliban movement part reflecting greater prevalence conservative religious belief among pashtun part reflecting fear non pashtun group northern alliance gaining control afghanistan dominance tajik force kabul personified marshall fahim stoked pashtun sense marginalization political development afghanistan thus pashtun area southern southeastern afghanistan witnessed upsurge activity taliban force command gulbuddin hekmatyar long active extremist warlord link pakistani security force saudi arabian wahhabist group resurgent taliban exhibited even violence le tolerance previous incarnation taliban outspend outman weak central government kabul even u force area around southern city kandahar taliban reportedly paying fighter much 70 week going 120 week fighter attack american force united state reportedly paying local warlord ally 60 week surprisingly taliban claim hold large portion several southern southeastern province report organisation many others cited clearly unequivocally point resurgent taliban heightened activity group south east county case applicant could return either home city kabul town lived number year going hiding tribunal remains concerned warlord activity rivalry within karzai government far predictable result election including composition resultant fallout may traditional ethnic religious rival therefore ethnic religious minority may well provide circumstance taliban force different name ethnic religious political basis could emerge threat hazaras afghanistan tribunal note taliban dominance country grew home base south east country previously karzai government authority yet either vindicated democratic vote tested extended beyond narrow confines kabul tribunal accept fragile untested government said constitute material durable stable change within afghanistan tribunal accept given continued existence authority war lord military commander within new government many different time alliance taliban control part afghanistan protection country nationality namely afghanistan would available tribunal accept security justice mechanism place could afford adequate protection applicant require tribunal therefore find circumstance connection applicant recognised refugee namely real chance persecution taliban able assume control afghanistan due entrenched ethnic religious rivalry division kabul country fiefdom warlord fact ceased exist hazara shi people present time article 1c 5 therefore enlivened reason tribunal satisfied applicant continues well founded fear persecuted afghanistan reason ethnicity religion purpose 36 4 act therefore 36 3 apply relation country therefore unnecessary consider additional reason applicant claim fear persecution afghanistan conclusionthe tribunal satisfied applicant person australia protection obligation refugee convention amended refugee protocol therefore applicant satisfies criterion set 36 2 act protection visa decisionthe tribunal remit matter reconsideration direction applicant person australia protection obligation refugee convention m karen synonmember23 april 2004

Life Insurance Regulations (Amendment) 1996 No. 305.txt

life insurance regulation amendment 1996 305life insurance regulation amendment 1996 305explanatory statementstatutory rule 1996 305issued authority assistant treasurerlife insurance act 1995life insurance regulation amendment section 253 thelife insurance act 1995 act provides governor general may make regulation purpose act act provides prudent management life company supervision insurance superannuation commissioner four round regulation released since commencement act 1 july 1995 amendment comprise fifth round regulation purpose regulation twofold one establish manner income outgoings statutory fund determined second provide publication unclaimed money information section 47 act provides regulation may declare constitutes income statutory fund constitutes outgoings statutory fund income outgoings critical determination operating profit statutory fund section 58 act establishes operating profit category business income le outgoings category sub categorisation business statutory fund participating business non participating business amount negative category operating loss period operating profit determined category business period allocated potential owner profit policy owner statutory fund shareholder operating profit allocated number account identified follows australian policy owner retained profit overseas policy owner retained profit shareholder retained pro fit australian participating shareholder retained pro fit overseas non participating operating profit must allocated various rule relationship control process allocation operating profit allocated retained profit account available distribution potential owner accordance rule relationship controlling distribution process summary determination income outgoings defined proposed regulation first critical step determination operating profit resulting distribution profit policy owner shareholder provision vital effective protection interest policy owner regulation provides income outgoings determined manner consistent commissioner rule 21 made pursuant subsection 82 5 act rule provide financial reporting requirement life company rely part methodology detailed corporation law actuarial standard statement accounting standard regulation 4 01b developed consultation representative life insurance industry section 106 thelifeinsurance act1945 1945 act established scheme refund unclaimed money specifically required authorised treasurer publish particular sum certain amount gazette section 216 act establishes similar scheme refund unclaimed money act substantially reflecting requirement 1945 act however decided remove act mandatory requirement publication gazette intention providing detail irregular basis form booklet future internet act include gazetting requirement appears legislative basis publishing disclosing information disclosure personal information response request may breach information privacy principle 11 contained section 14 theprivacy act 1988 establishes limit disclosure personal information general regulation making power section 253 permit prescription matter publication relation unclaimed money basis prescription necessary convenient carrying giving effect scheme refund unclaimed money act regulation 10 05b provide commissioner discretion publish particular specified statement given commissioner purpose subsection 216 1 commencement date proposed regulation date gazettal

Glover & Ors v Pilor Pty Ltd [2004] FMCA 448 (16 March 2004).txt

glover or v pilor pty ltd 2004 fmca 448 16 march 2004 last updated 3 august 2004federal magistrate court australiaglover or v pilor pty ltd 2004 fmca 448bankruptcy motion trustee bankruptcy judgment creditor seeking enforce right creditor subsequent making sequestration order whether right open pursued following sequestration order considered consideration appropriate relief trustee pending possible institution future proceeding thebankruptcy act 1966 cth 13 elizabeth ic5bankruptcy act 1966 cth s 77a 120 121 122jurisdiction court cross vesting act 1993 cth 5chapman anor v morton 1843 engr 634 1843 152 er 917williams v lloyd 1934 hca 1 1934 50 clr 341first applicant second applicant third applicant peter richard gloverpeter lennox shielswilliam balfour rangottrespondent pilor pty ltdacn 084 983 139file cz31 2003delivered 16 march 2004delivered sydney via videolink canberrahearing date 16 march 2004judgment driver fmrepresentationthe second applicant appeared personcounsel thirdapplicant dr hairsolicitors third applicant gillespie jones cosolicitors respondent mr cowentucker cowen solicitorsorders 1 proceeding transferred act supreme court federal court order crispin j 11 september 2003 transferred federal court court order stone j 21 november 2003 stood generally liberty party apply 2 pilor pty ltd give le 21 day notice writing third applicant trustee intended disposal encumbrance lot 10 registered plan 91358 county stanley parish redland lot 53 survey plan 101748 county stanley parish redland state queensland springwood property intended disposal encumbrance share held pilor pty ltd mayhem game centre pty ltd acn 088 113 928 3 order 1 made stone j 21 november 2003 amended court discharged 4 pilor pty limited grant access springwood property third applicant servant agent springwood property valued access granted time date third applicant respondent agree default agreement court may direct 5 notice motion filed 9 march 2004 otherwise dismissed 6 order cost federal magistratescourt australia atcanberracz31 2003peter richard gloverfirst applicantpeter lennox sheilssecond applicantwilliam balfour rangottthird applicantandpilor pty ltdacn 084 983 139respondentreasons judgment revised transcript 1 notice motion william balfour rangott trustee bankruptcy two bankrupt estate notice motion filed 9 march 2004 seek order certain property known springwood property transferred trustee respondent pilor pty ltd restrained transferring property anyone else pilor restrained encumbering encumbering property pilor grant trustee access property give discovery document whole asset law firm watling roche transferred applicant trustee another company mayhem game centre pty ltd give discovery document notice motion heard application notice motion originally taken peter richard glover peter lennox shiels petitioning creditor bankruptcy proceeding dealt earlier court proceeding court order court may think proper 2 initial issue party today proceeding party present party peter richard glover peter lennox shiels former petitioning creditor william balfour rangott trustee bankruptcy applicant pilor pty ltd acn 084983139 sole respondent notice motion omits name first second applicant name two additional respondent crdt pty ltd acn 080526478 mayhem game centre pty ltd acn 088113928 first third respondent respectively 3 consider crdt mayhem game necessary party neither represented hearing today neither interest essential deal purpose disposing motion obvious reason joinder mayhem game discovery order sought reason follow making order control crdt disputed petitioning creditor another director necessary appropriate seek resolve dispute proceeding 4 order bring matter clearer focus desirable recount briefly history 11 september 2003 crispin j act supreme court made certain order application messrs glover shiels judgment creditor seeking enforce judgment christopher roche barry joseph roche bankrupt order included order proceeding far relate christopher roche transferred entirety federal court australia pursuant 5 2 thejurisdiction court cross vesting act 1993 cth 5 apparent document available reason part proceeding transferred act supreme court federal court stage mr christopher roche made bankrupt petition bankruptcy subsequently annulled mr roches subsequently bankrupted petition messrs shiels glover sequestration order made court brisbane time crispin j made order doubt appeared appropriate following apparent bankruptcy christopher roche time step proceeding taken federal court bankruptcy 6 subsequently 20 november 2003 notice motion filed federal court judgment creditor seeking relief including injunctive relief christopher roche 21 november 2003 stone j ordered 1 proceeds disposition whether sale otherwise property subject cr investment trust dated 26 july 2000 michael james patrick hart crdt pty ltd whether real estate share property whatsoever remitted public trustee australian capital territory invested interest disposal aforesaid property restrained save disposal excess full market value order federal court federal magistrate court 2 cost cause discretion federal magistrate court 3 matter transferred federal magistrate court 7 apparent therefore proceeding instituted petitioning creditor seeking enforce judgment act supreme court christopher roche ended transferred court subject injunction order made stone j note also undertaking damage given 24 november 2003 applicant 8 made order 2 december 2003 order clarify certain matter relation bankruptcy christopher roche barry joseph roche order made proceeding number cz17 2003 heard canberra day proceeding properly proceeding filed court notice motion behalf bankrupt seeking set aside order made stone j proceeding 2 december 2003 granted procedural order sought bankrupt joined trustee proceeding amended injunction order made stone j adding word except le seven day notice given bankrupt disposition mr rangott trustee bankrupt estate 9 intention modify order turn effect order requiring notice disposition rather order restraining disposition property also ordered trustee liberty take step considered appropriate pursuance proceeding instituted messrs glover shiels default step taken within 14 day order made stone j would discharged force order transpired sufficient done trustee forestall self executing order notice motion filed 16 december 2003 petitioning creditor trustee seeking extend order made stone j seeking ancillary relief 10 matter considered 2 march 2004 time adjourned issue continuation discharge injunction granted stone j today deleted bankrupt respondent substituted pilor pty ltd invited application trustee relation injunction filed served 9 march 2004 brought u notice motion filed court date notice motion supported two affidavit one made 9 march 2004 timothy robert gumbleton made peter lennox shiels also 9 march 2004 filed day 11 motion opposed respondent pilor relies upon three affidavit first marion beckman made 12 march 2004 second christopher roche made 12 march 2004 third made janelle roche also 12 march 2004 three filed court today also benefit document previously filed read proceeding exhibit a1 a2 presented today statement affair christopher roche letter solicitor christopher roche respect notice issued trustee pursuant tos 77aof thebankruptcy act 1966 cth thebankruptcy act 12 also benefit written submission prepared filed court today mr cowen pilor chronology presented dr hair today evidence truth matter contained used general aide memoire order made three court involved matter made generally aid actual potential bankruptcy proceeding apparent material trustee concerned disposal certain property particular real estate described springwood property prior sequestration order ultimately made court also action taken change trustee cr trust mid june 2003 13 also appears shareholding mayhem game centre pty ltd bearing upon property legal practice formerly conducted bankrupt may transferred mid june 2003 pilor make factual finding issue material sufficient give concern trustee presently sufficient cause trustee institute proceeding thebankruptcy act example underss 120 121or122 told proceeding contemplation administration yet advanced point trustee willing able commence proceeding 14 reference made notice issued unders 77a certainly mr christopher roche possibly also mr barry roche sure trustee dissatisfied response made behalf christopher roche allegation made bar table relation response notice make factual finding relation allegation however note trustee currently dissatisfied response given notice 15 trustee effect seeking notice motion gain advantage proceeding instituted bankrupt prior bankruptcy enforce judgment debt dr hair expended effort seeking persuade open trustee pursue course action facilitate eloquently ultimately unsuccessfully dr hair referred old authority includingchapman anor v morton 1843 engr 634 1843 152 er 917andwilliams v lloyd 1934 hca 1 1934 50 clr 341 particular page 362 one wary old authority particularly authority significantly pre date thebankruptcy act 16 contention advanced dr hair depended part mean wholly proposition state equivalent statute fraud queen elizabeth utility could taken advantage trustee pursuing right formerly exercised petitioning creditor support proposition inwilliams v lloyd however noted pre date several decade thebankruptcy act also pertinent bear mind case decided thebankruptcy actas applied dealt settlement opposed transfer property different legal consideration may well applied 17 learned editor mcdonald henry meek page 4604 state state statute fraud deriving statute 13 elizabeth chapter 5 superseded bys 121of thebankruptcy act apparent state statute add anything remedy available trustee thebankruptcy act obstacle confronting trustee hypothetically could avail remedy formerly exercised creditor bankrupt enforcement judgment debt following sequestration order made court leave court required continuation proceeding ofs 58 3 thebankruptcy actwhich provides except provided act debtor become bankrupt competent creditor enforce remedy person property bankrupt respect provable debt b except leave court term court think fit commence legal proceeding respect provable debt take fresh step proceeding 18 minded grant leave even otherwise thought open trustee pursue proceeding commenced act supreme court absence present willingness part trustee institute proceeding thebankruptcy actseeking set aside impugned transaction time wish put impediment way trustee instituting action thebankruptcy actin future wish 19 extent notice motion seek injunctive relief seek continue order made stone j issue principle well set written submission prepared mr cowen issue whether serious question exists tried balance convenience lie alternatively interest justice require certainly potential action taken unders 121of thebankruptcy actby trustee pilor pty ltd available material indicates transaction taken place prior bankruptcy reasonably cause concern trustee however potential action thebankruptcy acthas yet commenced relief granted point relief aid actual anticipated proceeding thebankruptcy act relief serve purpose go interest justice reasonably require 20 seems mischief may occur relief continued additional relief granted could disposition property seeking put greater distance property creditor clear evidence disposition threatened possibility exists fear disposition brought trustee court today regard history transaction date view limited relief granted trustee order ensure trustee real opportunity institute proceeding future necessary fairly short notice order protect interest creditor 21 regard foregoing consideration decided make order appear beginning judgment 22 considered whether circumstance order cost outcome applicant trustee small measure success small measure respondent company pilor also partially successful finally disposing order made stone j reflected matter come view order making today probably could made three month ago think party currently bear greater blame happened past three month therefore decided order order cost certify preceding twenty two 22 paragraph true copy reason judgment driver fmassociate date 27 july 2004

ST JOHN OF GOD HEALTH CARE INC -v- KEZIC [2017] WASC 64 (7 March 2017).txt

st john god health care inc v kezic 2017 wasc 64 7 march 2017 last updated 15 march 2017jurisdiction supreme court western australiain civilcitation st john god health care inc v kezic 2017 wasc 64coram pritchard jheard 7 march 2017delivered 7 march 2017file civ 2303 2016between st john god health care incapplicantandrosaria kezicrespondentcatchwords practice procedure service substituted servicelegislation vexatious proceeding restriction act 2002 wa rule supreme court 1971 wa 72 r 4result application substituted service grantedcategory brepresentation counsel applicant mr j williamsrespondent appearancesolicitors applicant kott gunningrespondent appearancecases referred judgment pritchard j judgment delivered extemporaneously 7 march 2017 edited transcript 1this application applicant substituted service originating summons proceeding proceeding brought pursuant thevexatious proceeding restriction act 2002 wa act applicant seek order respondent restricted pursuing litigation pursuant term act 2the applicant difficulty serving respondent originating summons difficulty outlined number affidavit upon applicant relies affidavit affidavit arabella grania rose phillips sworn 30 january 2017 27 february 2017 1 march 2017 3in short affidavit indicate four attempt process server serve respondent last address applicant premise balcatta balcatta premise attempt unsuccessful balcatta premise recorded respondent address electoral roll address recorded telephone book confirmed recently address also address respondent registered proprietor 4on couple occasion process server attended balcatta premise person one occasion person identified daughter respondent indicated respondent overseas recent occasion male occupant premise told process server respondent overseas came back briefly apparently christmas went overseas two three month give precise indication expected respondent would return 5in addition attempt applicant serve respondent email email address used course litigation applicant also attempted phone call phone number applicant respondent 6the present application said application substituted service application made pursuant 72 r 4 therules supreme court 1971 wa rsc provides 1 rule personal service document required appears court personal service document person required served impracticable court may order document served person substituted service 2 application order substituted service shall supported affidavit stating fact application founded 3 substituted service pursuant order rule effected taking step court directs bring document notice person served operation personal service 7the inquiry required 72 r 4 rsc twofold first court required consider whether personal service impracticable personal service impracticable second inquiry form substituted service bring document notice person served 8for reason already given satisfied attempt applicant effect personal service respondent attempt unsuccessful personal service therefore impracticable regard circumstance 9i turn second inquiry form substituted service take order proposed applicant seek several form alternative service personal service first applicant seek order service registered post balcatta premise secondly applicant seek serve occupant balcatta premise process server spoken couple occasion person indicated happy accept service appeared idea general term respondent would back overseas appears person also aware least general term respondent movement finally counsel applicant also accepts would sensible effect service email email address respondent used course litigation applicant 10given balcatta premise property respondent registered proprietor also address electoral roll appears continuing place residence travelling overseas fact occupant premise appears knowledge respondent whereabouts appears mean contact alternatively expressed willingness ensure receives document served balcatta premise finally fact email address applicant proposes use email address respondent used litigation satisfied three mean service due course bring originating summons respondent attention 11having reached conclusion necessary deal question degree likelihood confidence document come respondent attention 1 matter referred edelman j inattorney general wa v lashansky simply suffices say satisfied service originating summons three mean proposed due course bring application respondent attention circumstance make order substituted service three mean set herein 1 cfattorney general wa v lashansky 2014 wasc 42 13 edelman j

C’Wealth Service Delivery Agency v Van Den Berg [2006] NTMC 55 (15 June 2006).txt

c wealth service delivery agency v van den berg 2006 ntmc 55 15 june 2006 citation c wealth service delivery agency v van den berg 2006 ntmc 055parties commonwealth service delivery agencyvcresencia van den bergtitle court court summary jurisdictionjurisdiction darwinfile 20429584delivered 15 june 2006delivered darwinhearing date 22 november 2005 24 march 2006 5 may 2006judgment m jenny blokland smcatchwords criminal law knowledge circumstantial evidence conduct occasionsharriman v queen 1989 hca 50 1989 167 clr 590shepherd v queen 1990 hca 56 1990 170 clr 573chamberlain v queen 1984 hca 7 1984 153 clr 521representation counsel prosecution m bligh mr forddefendant self m scattinisolicitors prosecution commonwealth director public prosecutionsdefendant ntlacjudgment category classification cjudgment id number 2006 ntmc 055number paragraph 25in court summary jurisdictionat darwin northernterritory australiano 20429584between commonwealth service delivery agencyprosecutionand cresencia van den bergdefendantreasons decision delivered 15th june 2006 jenny blokland sm introduction1 22 november 2005 m cresencia van den berg defendant pleaded guilty twelve count concerning breach social security act count 1 6 commonwealth criminal code count 9 12 first day hearing m van den berg unrepresented assistance interpreter m ventic short time friend m nicholls told m nicholls may potential witness required leave courtroom early proceeding hearing 22 november 2005 prosecution called witness give evidence viva voce mr shane ponter investigator centrelink tendered number document comprised bulk prosecution case refer due course end proceeding 22 november 2005 urged m van den berg speak legal aid commission whether could representation duration hearing told court received advice legal aid commission represented resumption hearing 24 march 2006 m scattini appeared m van den berg 2 hearing resumed 24 march 2006 m van den berg received advice m scattini northern territory legal aid commission pleaded guilty count 9 12 inclusive continued contest count 1 8 count 1 8 summary follows count 1 alleges 17 august 1999 22 december 1999 defendant breached section 1347 1350 thesocial security act 1991in knowingly obtained wife pension aged payable part employed receipt income northern territory news count 2 contains similar allegation january 2000 20 march 2000 count 3 contains similar allegation save charged undersections 215and217of thesocial security administration act 1999for period 19 march 2000 20 december 2000 note substance charge thesocial security administration act 1999is alleged previous social security act 1991 count 4 alleges similar conduct breach thesocial security administration act 1999between 27 february 2001 11 april 2001 count 5 alleges similar conduct 8 may 2001 6 june 2001 count 6 make similar allegation save time period 3 july 2001 2 october 2001 count 7 make similar allegation save charged pursuant section 135 2 1 criminal code cth knowingly obtain financial advantage count 8 concern similar allegation contrary section 135 2 1 criminal code cth 7 may 2002 14 august 2002 count defendant entered plea guilty count 9 12 involve allegation concerning obtaining financial advantage contrary section 135 2 1 criminal code relation parenting payment single period 13 august 2002 25 september 2002 8 october 2002 12 march 2002 25 march 2003 22 october 2003 21 october 2003 21 december 2003 3 successful relation count 1 6 prosecution must prove beyond reasonable doubt defendant obtained wife pension payable part payable defendant knew obtaining benefit knew entitled benefit obtained payment relation count 7 8 obtain financial advantage contrary section 135 2 1 criminal code must proven knowingly obtained financial advantage commonwealth entity knew eligible receive financial advantage prosecution case4 essential allegation defendant receipt wife pension 17 august 1999 14 august 2002 period employed northern territory news p chan pty ltd air raid arcade received throughout period wife pension age entitled full pension albeit time entitled part pension due income employment alleged defendant failed notify centrelink change financial circumstance required various time notify centrelink change income employer must remembered charged particular offence concerning failure notify however accept relevant factor assessed assessing defendant knowledge income benefit knowledge impact income benefit little dispute concerning benefit actually described entitlement benefit income received issue whether requisite element concerning knowledge entitlement benefit proven beyond reasonable doubt often way concerning mental element prosecution sought prove matter reference circumstance case case circumstantial case concerning knowledge defendant remind defendant must acquitted reasonable hypothesis raised consistent innocence negatived beyond reasonable doubt prosecution agreed facts5 certain fact agreed outset see exhibit p1 defendant received payment wife pension 1 september 1998 13 august 2002 defendant received payment parenting payment single 14 august 2002 21 october 2003 defendant worked nationwide news pty ltd northern territory news 4 june 1999 30 june 2003 beyond defendant received wage northern territory news specified pay record court see exhibit p2 wage paid weekly national australia bank account see exhibit p4 defendant issued payslip time paid defendant worked p chan pty ltd air raid city lodge 20 march 2001 8 april 2001 defendant received wage air raid city lodge specified pay record provided employer exhibit p3 defendant paid wage air raid city lodge weekly basis cash 6 benefit received readily proven set table comprised exhibit p15 defendant particular entitlement payment calculate whether payment set exhibit p18 p12 detailed record little contradiction concerning find fact contained concerning level overpayment readily proven beyond reasonable doubt issue commonwealth service delivery agency commonwealth entity find element relevant count 7 8 proven evidence relevant defendant state mind7 evidence relevant knowledge mentioned nature circumstantial relies document tendered court historical matter around document degree interpretation mr ponter primarily gave evidence introducing document cross examined relevant issue concerning interpretation raised defendant mr ponter explained dispute eligibility wife pension required female australian resident partner person receipt pension centrelink said reporting obligation minimal said maybe every two year would income asset test said case m van den berg concerned aged pension would minimal form mr ponter said defendant obligation advise centrelink within 14 day change said relevant change could anything changing address changing marital status child left care matter concerning income commencing work rent going overseas said circumstance contemplated could vast centrelink notified within 14 day also detailed obligation concerning parenting payment single related charge later date defendant pleaded guilty drew court attention form comprised regular review form benefit mr ponter explained content exhibit p12 debt schedule first fortnightly period commences 18 august 1999 end 31 august 1999 column headed amount paid relates amount centrelink actually paid defendant column headed amount entitled refers amount defendant actually entitled particular entry overpayment 24 90 also indicated form supplied indicates declaration 96 income declared income significant period beyond fortnight also indicates defendant paid 163 net northern territory news none stage air raid city lodge clear essentially period 18 august 1999 period ending 24 october 2000 defendant declared 96 declared income much period 96 varied actual gross income earned northern territory news period commencing 25 october 2000 declared income increased 113 75 much relevant period represent true figure gross amount received overpayment per fortnight relevant count 1 8 vary little 2 87 per fortnight 120 per fortnight period also least fortnightly period defendant underpaid benefit marginal amount period defendant pleaded guilty fortnightly payment time insignificant sum consistent significant overpayment order 200 280 8 much mr ponter evidence chief related later charge defendant pleaded guilty part way proceeding note gave evidence see transcript p 50 concerning need submit 12 weekly form payment parenting payment single note stated 12 week period relevant averaging people fluctuating income benefit said claimant provides form every 12 week still obligation notify change income within 14 day said fluctuating income averaged 12 week make adjustment 9 various business record relating charge admitted exhibit p13 pursuant section 69 155 182 commonwealthevidence act various centrelink computer entry referred mr ponter referred court screen entry page 23 exhibit p13 dated july 1999 said refers date document created casuarina office caa said reference clt mean client entry read advised reception commenced work nt news 04 06 99 said screen summary happened centrelink customer advised reception commenced work nt news 4 june 1999 explained cross referenced exhibit p14 seen group certificate provided income updated centrelink system customer advised bring payslip week transcript p 62 also referred document dated 10 july 2001 said abbreviation kdo referred knuckey street office darwin summary indicated update earnings northern territory news approximately 70 fortnight sometimes le said screen show entry archived said relates wife pension age source listed co customer statement receipt date 10 july 2001 said text indicates income updated according information also referred court entry page 20 screen summary comprising exhibit p 13 indicating entry 8 august 2001 kdo entry customer advised weekly earnings 198 per week reference made entry advised change income 18 april 2002 25 april 2002 advice period total earnings 105 reference also made advice given concerning earnings 14 august 2002 advice period 126 88 screen entry dated 3 december 2002 also referred mr ponter evidence noting verification employment q146 sent 9 1 2003 reply due 30 1 2003 also note text customer requested provide 2001 2002 group certificate noting 14 day warning document forthcoming also referred entry 20 december 2002 indicating debt raised concerning parenting payment single number entry relevant charge defendant since pleaded guilty explained 10 mr ponter gave evidence number time client centrelink maybe told several occasion obligation advise centrelink within 14 day change said letter generated centrelink automatically well manually explained obligation advise centrelink change letter corresponding record tendered exhibit p18 exhibit p19 exhibit 18 multi cal record page 1 multi cal record exhibit p18 entry 18 august 1999 indicates sum 301 60 maximum rate wife pension paid customer adding pharmaceutical allowance total benefit came 304 30 indicates direct debit entry also indicates stage could earn 102 income threshold income cut 710 said pension cancelled time rate 50 cent dollar 102 2001 changed 40 cent dollar figure 97 82 indicated earnings employer income case 176 19 indicates income source eg bank interest dividend said total income 274 01 includes income earnings bank dividend forth indicates personal effecting income 86 zero excess income partner giving total 86 within exhibit summary change figure explained coming customer provides gathered investigation centrelink show throughout table two source income source relate per annum basis said entitlement wife pension annualised divide reported income 52 work entitlement reference made recording income various source exhibit p20 earnings history chart mr ponter said obligation defendant advise centrelink within 14 day change circumstance commenced receiving wife pension 1999 period parenting payment later new start allowance 2003 entry 28 january 2003 exhibit p13 referred noting clt provided payslip 2 1 9 1 23 1 payslip 16 1 gross income worked 16 1 using ytd figure see earnings doc detail entry page 13 reference 20 december 2002 customer requested q0002 provide certain document mr ponter said q0002 refers letter said entry referred payslip last 12 week nt news warning payment stopped payslip provided relation entry 8 august 2001 page 20 exhibit p13 explained abbreviation si meant customer statement mr ponter said could tell entry whether verbal written statement corresponds earnings history 11 cross examination mr ponter agreed m van den berg actually wife pension since 1998 reporting concerning type pension would minimal transcript 24 3 2006 25 agreed counsel nothing record suggest defendant given income asset test agreed m van den berg wife pension claim unable located mr ponter could say meant never computer record made agreed nothing exhibit p13 indicate claim fact made agreed nothing record indicate centrelink officer explained recipient obligation relation wife pension m van den berg agreed letter 21 june 2004 exhibit p19 exact copy formatted differently original agreed record sent added process automatic mr ponter said letter changed format since 1999 said heading bigger print said believed obligation reverse side letter mr ponter agreed m van den berg receipt wife pension gained entitlement partner person aged pension agreed aged pension also income tested would include income partner said party would obligation report income said record would linked computer system said normally document created centrelink system person advised income said notation concerning income would recorded differently reported partner mr ponter said could say whether m van den berg husband authority deal centrelink wife behalf said depended whether authority given transcript p 29 said tell current record m van den berg husband deceased said could tell record whether husband permission enquire payment mr ponter said someone m van den berg husband attended provide wife wage record centrelink information would taken centrelink would set verify information phone call letter mr ponter agreed may declaration employer directly could recorded centrelink system 12 relation exhibit p14 archived display 2 july 1999 mr ponter said clt meant client disagreed would refer client partner stating normally entry would say document brought client partner agreed possible casuarina office centrelink person made document could busy entered clt relation partner asked likely person counter would use interpreter answered required staff member would make appointment later said would difficult ass good peron english dropping payslip asking question agreed record indicating advised reason needed bring payslip 13 mr ponter agreed relation entry 2 november 2000 exhibit p20 corresponding doc entry agreed indicated centrelink officer followed proper procedure mr ponter agreed centrelink officer written activity declaration income mr ponter said could tell occurrence event date concerning entry 2 november 2000 document court mr ponter said could say 3 may entry made mr ponter agreed could say payslip 2 november provided brought able say payslip concerning 3 may 2001 entry received said record document system said document front nothing say provided mr ponter agreed record 3 may 2001 indicate updated earnings relation entry dated 8 august 2001 exhibit p13 agreed person providing payslip situation provide identification agreed occasion employer recorded mr ponter said assumed person would asked current employer said say actually happened procedure would centrelink officer would say nt news continuing income agreed busy counter procedure always followed transcript p 36 said however still income test whether apportioned nt news another employer agreed somebody providing information would show id agreed declaring income would relevant m van den berg husband well obligation declare income agreed m van den berg husband record linked m van den berg relation entry 1 march 2002 exhibit p13 concerning 1 4 8 march 2002 mr ponter agreed looked like m van den berg application carer allowance carer payment caring husband stamped 8 march 2002 mr ponter agreed answer question 10 application whether working voluntary work study training marked yes mr ponter agreed least said assumed filing application m van den berg would asked income mr ponter attention drawn record 8 march 2002 exhibit p13 indicating carer claim lodged m van den berg already receipt wife pension agreed series entry indicates need proof identity agrees entry 29 april 2002 customer advised centrelink earnings page 18 26 exhibit p13 mr ponter said given entry indicates co customer would come agreed would happened shortly made application carers payment would asked income mr ponter agreed entry 24 may 2002 indicates carers allowance seemed air cancelled granted mr ponter agreed material concerning advice m van den berg husband hospital terminal condition mr ponter agreed way telling customer advised centrelink information mr ponter asked explain expression document asked get letter husband doctor could treat illness separated said circumstance people may given benefit single rate agreed appropriate benefit could parenting payment single agreed fact evidence mr van den berg died 30 may 2002 mr ponter agreed 3 june 2002 entry discussion relation death effect may entitlement com super 14 concerning debt schedule exhibit p12 mr ponter agreed declaration 2 july 1999 first declaration income accurate first three entry involved accurate declaration income nevertheless overpayment mr ponter agreed fortnight ending 10 june 1999 overpayment 6 10 11 june 1999 overpayment 34 50 agreed next entry meant underpayment centrelink mr ponter agreed record 2 july 1999 correct cross referenced northern territory newsas employer mr ponter agreed overpayment occur regardless someone complying best ability centrelink obligation report 15 relation multical document exhibit 18 column headed 18 august 1999 mr ponter agreed income threshold 102 agreed earnings 97 82 agreed amount 176 19 pension would affected said earnings sole income pension paid would affected said believed income bank interest said could also m van den berg husband receipt pension centrelink possibly comsuper said thought income system know whether m van den berg advised record conversation16 consent transcript record conversation dated 24 june 2004 tendered exhibit p16 note page 6 7 defendant speaks death husband speaks wife pension carried husband talk change different benefit page 13 asked q 119 told centrelink working northern territory news wife pension said get letter know besides earn 35 depends many hour work call get 35 asked whether told centrelink started work said 121 know time giving letter husband car stay home know 122 okay friend ah give lift go work q 123 okay saying husband notified u working northern territory news saying know also call need need calling q124 question let centrelink know working receiving payment u advise centrelink bring payslip show know yet get letter know also go report husband also tell report also know get letter start reporting time know anything q125 okay record well received notification june 1999 started work northern territory news earning 96 fortnight notified centrelink working know know know q126 would husband notified centrelink working maybe telling husband q127 okay know working seen payslip q128 yeah one getting letter organising getting letter time q129 okay move parenting payment single okay let centre providing detail centrelink earnings northern territory news start sending letter start also giving payslip ask also counter much earn week pension touch ruling evidence concerning count 9 1217 defendant pleaded guilty last four count second day hearing m scattini asked exclude evidence relevant proving guilt matter argued longer relevant basis argument admitted proof first 8 count would breaching rule concerning propensity character evidence answer argument took view evidence later count could evidence probative course conduct way breach rule receiving evidence character occasion given defendant part relying lack knowledge awareness concerning obligation lack knowledge awareness concerning payment money entitled seemed evidence later count may circumstantial evidence proof knowledge contested matter short high level relevance evidence issue outweighed prejudice although accept type evidence presumptively excluded situation confronting court case concern underlying issue manifest course conduct analogous principle applied harriman v r 1989 167 clr 590 fact plea guilty later charge rather count contested view alter evaluation evidence circumstantial evidence18 accept approach circumstantial case ass probative force accumulation evidence criminal law setting involves assessment whether proven fact cumulatively capable leading inference beyond reasonable doubt guilt combination number fact inference even inference doubtful legitimate process proof circumstantial case agree prosecution submission usually proper approach ass item separately shephard v r 1990 hca 56 1990 170 clr 573 although would add exception course intermediate fact conclusion need proven beyond reasonable doubt ultimate inference drawn chamberlain v r 2 1984 1984 hca 7 153 clr 521 link chain opposed strand rope case primarily one strand rope use often recalled analogy also important direct find charge proven reasonable hypothesis consistent innocence negatived beyond reasonable doubt 19 seen summary evidence thus far reason number fact tend support inference defendant knew required comply certain obligation leading receiving monies entitled every inference clear seen answer given particular cross examination mr ponter 20 prosecution point contact defendant centrelink 4 june 1992 information concerning income notified reference evidence supportive attendance noted record defendant person abbreviation clt evidence concerning updating earnings information 10 july 2001 however evidence also indicates earning reported prior date aspect reporting tendered support inference defendant aware obligation chose ignore obligation report correctly report 8 august 2001 concerning reported change weekly earnings indicating increase 198 previously combined earnings previous fortnight 828 court asked find defendant chose update earnings knowledge hoping centrelink would enquire closely open court intended mislead centrelink submitted prosecution inference drawn advice change circumstance 29 april 2002 finished working pd chan submitted show defendant knew responsibility inform centrelink change income submitted also continued declare income correct week ending 29 april 2002 submitted declaring income occasion correctly 21 also submitted behalf prosecution defendant sent numerous letter period offending concerning proof earnings noted responded 6 january 2003 period defendant receiving parenting payment single prosecution say relevant admissible term course conduct indicating intent mislead centrelink submitted payslip concerning income submitted 28 january 2003 showing income nt news pd chan also submitted declared earnings period 27 january 2003 20 april 2003 aside 50 cent accurate figure pointed however failed period advise working pd chan submitted record conversation defendant participated lacked credibility 22 behalf defendant reminded count 1 8 overpayment alleged 2480 29 average 30 per fortnight submitted tends throw doubt issue whether defendant knew entitled receive amount reminded amount small year also submitted first two payment debt schedule exhibit p13 honestly stated still represented small overpayment submitted informant case unable say submitted information relation actual earnings asked take account letter concerning obligation part defendant inadequate given obligation flip side letter also submitted record posted received letter ought disregarded also reminded record m van den berg late husband obviously linked although declaration income noted record system also linked reminded record conversation m van den berg spoken fact husband may one gave information speaks car relying husband submitted husband death m van den berg contact centrelink increased obvious record different personality dealt relation record 2 july 1999 submitted notation clt could also husband also client centrelink submitted evidence record may completely accurate given entry 2 november 2000 exhibit p20 concerning payslip corresponding computer entry similarly relation 3 may evidence income declared similarly submitted update earnings exhibit p13 relating 10 july 2001 show indication defendant submitted information given behalf defendant obviously accurate period submitted behalf defendant obvious contact increased death mr van den berg 23 submitted behalf defendant give great deal weight defendant conduct death husband obvious world turned upside confused change financial circumstance difficult time word submitted use course conduct evidence significantly probative manner 24 although instance clear defence weakened interpretation centrelink record view whole circumstance point person avoiding frank centrelink true suggestion raised cross examination possibility late husband defendant transaction centrelink basis act possibility mind suggestion raise doubt issue involvement defendant husband little suggestion even late husband involved early period still inference combined point defendant requisite knowledge appreciate charge pleaded guilty husband death involved different benefit greater emphasis regular 12 weekly reporting extent discount weight give evidence mind conduct still degree confirms intention deceive centrelink regard defendant reporting income incomplete reporting income time course conduct deceive centrelink show requisite knowledge disentitlement number statement record conversation obviously wrong difficult give answer might assist excusing weight example recorded indicates earns 35 outset clearly wrong although prosecution course bear onus negativing reasonable hypothesis consistent innocence little evidence support defendant hypothesis chosen give evidence course use draw inference however matter knowledge intention within knowledge without evidence contrary reasonable basis doubt fact put forward prosecution inference ultimately drawn find count proven beyond reasonable doubt sentence m van den berg 15 june 2006 25 wish record indebted m scattini legal aid commission representing defendant professionally evident outset would difficult ensure case fairly put dated day 2006 _________________________jenny bloklandstipendiary magistrate

0903070 [2010] MRTA 785 (27 January 2010).txt

0903070 2010 mrta 785 27 january 2010 last updated 13 april 20100903070 2010 mrta 785 27 january 2010 decision recordreview applicant mr trieu minh doanvisa applicant m thu van nguyenmrt case number 0903070diac reference osf2008 055548tribunal member tony caravelladate 27 january 2010place decision perthdecision tribunal remit application prospective marriage temporary class visa reconsideration direction visa applicant meet following criterion subclass 300 prospective marriage visa cl 300 216 schedule 2 regulation cl 300 221 schedule 2 regulation cl 300 221a schedule 2 regulation statement decision reasonsapplication reviewthis application review decision made delegate minister immigration citizenship refuse grant visa applicant prospective marriage temporary class visa unders 65of themigration act 1958 act visa applicant applied department immigration citizenship department prospective marriage temporary class visa 17 november 2008 delegate decided refuse grant visa 31 march 2009 notified visa applicant decision review right letter dated 1 april 2009 delegate refused visa application basis visa applicant satisfy cl 300 216 cl 300 221 schedule 2 themigration regulation 1994 regulation delegate found time making application time delegate decision party failed establish satisfaction delegate genuinely intend live together spouse review applicant applied tribunal 23 april 2009 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 prospective marriage temporary class visa visa person seeking enter australia marry first entry australia australian citizen australian permanent resident eligible new zealand citizen prospective spouse view remaining permanently time visa application lodged class contained one subclass subclass 300 prospective marriage item 1215 4 schedule 1 regulation criterion subclass 300 visa set inpart 300of schedule 2 regulation primary criterion satisfied time application visa applicant intends marry person prospective spouse australian citizen australian permanent resident eligible new zealand citizen cl 300 211the prospective spouse prohibited specified reason sponsor cl 300 212the visa applicant sponsored prospective spouse spouse intended spouse 18 parent guardian prospective spouse cl 300 213the party met known personally cl 300 214the visa applicant establishes party genuinely intend marry intend marriage take place within visa period cl 300 215 andthe decision maker satisfied party genuinely intend live together spouse cl 300 216 spouse defined r 1 15a regulation specifies spouse may either married de facto relationship either case decision maker must satisfied mutual commitment shared life husband wife exclusion others relationship genuine continuing couple live together live separately apart permanent basis r 1 15 1a b 1 15a 2 c primary criterion satisfied time decision applicant continues meet cl 300 211 300 214 300 215 300 216 cl 300 221there impediment marriage australian law 300 221a applicant prospective spouse 18 minister must satisfied turn 18 end period within intended marriage take place australian court order issued unders 12of themarriage act 1961 themarriage act authorising party marry latter case minister must satisfied marriage take place 300 221bthe sponsorship approved minister still force cl 300 222the visa applicant family member satisfy certain public interest criterion special return criterion cl 300 223 300 224 300 226 300 227any requested assurance support given accepted cl 300 225 andin case visa application made 1 july 2005 visa applicant meet certain passport requirement cl 300 228 section 23bof themarriage act 1961deals ground marriage void subsection 23b 2 provides marriage party within prohibited relationship marriage person ancestor descendant person b brother sister whether whole blood half blood issue present case whether party genuine intention live together spouse delegate also considered found review applicant visa applicant related blood tribunal therefore decided consider make finding question party familial relationship whether relationship prohibited relationship purpose themarriage act 1961 claim evidencethe tribunal department file relating visa applicant tribunal also regard material referred delegate decision material available range source hearing review applicant representative provided tribunal copy letter dated 2 december 2009 western australian registry birth death marriage state amongst thing notice intended marriage lodged registrar notice expires 14 february 2010 also provided copy vodaphone call history review applicant mobile telephone period 30 november 2009 21 december 2009 receipt tan hiep hung video transfer 200 16 december 2009 review applicant visa applicant backgroundthe review applicant born 10 december 1985 kien giang vietnam declares amongst thing arrived australia 16 september 1988 granted australian citizenship holder australian passport also declares previously sponsored nominated spouse including defacto prospective spouse interdependent partner declares full time student previously married visa applicant born 22 august 1987 giang vietnam declares citizen resident vietnam holder passport issued government vietnam declares amongst thing mother father sibling sister two brother live vietnam declares occupation farmer previously travelled australia 2 march 2008 may 2008 declares previously married visa applicationthe visa application lodged department 17 november 2008 addition relevant application form form 47sp sponsorship form form 40sp following document relevant review contained document department file considered tribunal copy review applicant certificate australian citizenship issued 22 july 1993 certified copy photograph page review applicant australian passport aresult searchissued western australian registry birth death marriage showing registration marriage review applicant found western australia 1 january 2000 29 december 2007 inclusive translation certificate marital status issued 12 september 2008 people committee commune hoa binh district cho moi province giang vietnam showing visa applicant never married notice intended marriage issued western australian registry birth death marriage 14 august 2008 stating marriage review applicant visa applicant take place 1 may 2009 certified copy visa applicant passport issued socialist republic vietnam separate document titled history relationship declared respectively review applicant visa applicant transcript interview conducted department visa applicant 26 february 2009 history relationship document referred preceding paragraph party appear independently write met relationship developed description essentially consistent party describe visa applicant met review applicant mother latter trip vietnam 2007 statement describe visa applicant met review applicant mother giving manicure describe review applicant mother invited visa applicant travel month toured vietnam accompany tour statement describe relationship grew point early january 2008 decided wanted become engaged statement describe 15 january 2008 held engagement party claim family friend attended including review applicant sister australia family member usa also attended party describe aspect visa applicant three month visit australia 2 march 2008 delegate decisionon 31 march 2009 delegate made decision refuse grant prospective marriage temporary class visa delegate reason refusal set delegate decision record delegate reasoning refuse grant visa appears based number concern tribunal set following paragraph firstly delegate found certain claim made application implausible claim found implausible delegate include claim review applicant mother would invite pay visa applicant travel month claim visa applicant agreed marry review applicant meeting person party agreed marry six day meeting person secondly delegate found number inconsistency evidence given party delegate refers amongst thing review applicant visa applicant providing conflicting account first telephone contact began delegate regarded date significant date spouse would know thirdly delegate satisfied party decision marry reflects level consideration usual two people making genuine life long commitment fourthly delegate found party provided false misleading information department regarding family tie delegate found visa applicant travelled australia 2 march 2008 sponsored uncle doan van mon document associated visa travel visa applicant father nguyen van tran provided statutory declaration confirming doan van mon brother therefore visa applicant parental uncle delegate find tracing family relationship review applicant visa applicant paternal uncle application reviewan application review delegate decision received tribunal 23 april 2009 addition theapplication review form m1 tribunal received various document support visa application including evidence party travel australia vietnam form airline flight confirmation boarding pass certificate travel insurance large number receipt evidence telephone call form vodaphone call history numerous photograph depicting party appear family social function photograph two bundle annotated photograph taken vietnam trip april 2009 vietnam trip july 2009 addition document referred preceding paragraph tribunal also access department movement record showing review applicant departure arrival australia department movement record also confirm visa applicant visit australia 2 march 2008 31 may 2008 tribunal hearingthereview applicant appeared tribunal 21 december 2009 give evidence present argument tribunal also received oral evidence visa applicant spoke tribunal via telephone vietnam tribunal hearing conducted assistance interpreter vietnamese english language review applicant represented relation review registered migration agent review applicant oral evidencethe review applicant began oral evidence telling tribunal given opportunity department provide evidence interview prior delegate making decision refuse visa application said thought would given interview explain thing precise nature family tree relationship visa applicant said offered interview delegate made decision compared situation given interview situation cousin also met married woman vietnam case said cousin given interview department wife living cousin australia review applicant told tribunal family visa applicant family support relationship explained student third year study 2010 significant income added sending money transfer visa applicant money transfer comprise money supplemented contribution mother father review applicant explained mother travelled vietnam attend cousin som engagement party party mother decided get manicure turned visa applicant person attended nail nail review applicant mother visa applicant struck conversation review applicant mother inquired whether visa applicant might interested developing relationship son way getting know review applicant mother also invited visa applicant travel tour vietnam review applicant said mother paid visa applicant expense substantial cost australia dollar compare favourably vietnamese currency result time touring together review applicant mother got know visa applicant better review applicant said mother previously aware also knew family kind people tribunal asked review applicant decided get married given comparative youthful age given fact still student without significant income review applicant replied saying fact student relevant said feel met one love feel want together rest life natural decide marry review applicant told tribunal first time spoke visa applicant 15 may 2007 said first time spoke telephone telephone conversation week travelled vietnam meet 30 december 2007 proposed visa applicant 5 january 2008 told tribunal proposed visa applicant kien giang approximately nine hour car saigon told tribunal talking visa applicant number occasion telephone felt wanted travelled vietnam told tribunal acknowledges short relationship might seem real external observer however case relationship real added cousin som married someone vietnam well seems happy review applicant described engagement held 15 january 2008 said engagement ceremony began sister place walked visa applicant house fact next door sister place however took brief detour arriving prayed person officiated engagement explained visa applicant went back room changed white dress met guest received gift money went park photo added recalled day well lot power black out day said ceremony commenced morning went afternoon review applicant told tribunal thought deeply relationship time began contact visa applicant meeting review applicant explained travelled vietnam first meeting visa applicant visa application afoot sponsor come australia three month visit idea behind could get know continued telling tribunal visa application process taking long decided go vietnam meet instead waiting come australia visa applicant visitor visa application ultimately successful leading visiting australia three month 2 march 2008 may 2008 review applicant told tribunal first travel vietnam actually 1999 however relevant review first travelled meet visa applicant vietnam 2007 explained visit visa applicant would spend day time parent home said like sleeping parent house insect could get house would stay nearby small hotel night said first stayed alone hotel visa applicant stayed home however added several day began share room slept separate bed room review applicant told tribunal parent parent supported arrangement respective parent knew parent liked review applicant told tribunal visa applicant australia recently lived family home entire three month stay added together 24 x 7 slept together bed tribunal asked review applicant sending money visa applicant given negligible income student replied sends money want learn english want help family situation explained visa applicant father recently suffered stroke hospitalised result furthermore told tribunal visa applicant also recently seriously unwell contracting severe fever also hospitalised finally told tribunal also want visa applicant continue learn nail work field come australia plan marriage review applicant told tribunal planned make vow registry birth death marriage said discussed possible venue wedding celebration considering jade dynasty restaurant said told seating capacity 200 guest told tribunal wedding plan live mother father house comprising five bedroom said agreed future living arrangement believe suitable like big family respect question blood relationship visa applicant tribunal noted delegate concluded review applicant visa applicant related blood delegate concluded finding review applicant visa applicant paternal uncle tribunal asked review applicant explain precisely relationship review applicant told tribunal related blood visa applicant related distantly marriage review applicant father first wife visa applicant grandfather sister visa applicant grandfather married person related review applicant son nguyen van trang visa applicant nguyen van trang daughter summary review applicant said visa applicant grandfather sister father first wife review applicant born father second marriage visa applicant oral evidencethe visa applicant evidence review applicant introduced consistent oral evidence given review applicant described review applicant mother met discussed possibility relationship review applicant visa applicant review applicant mother nail explained review applicant mother asked whether might interested daughter law replied able say met review applicant explained also discussed possibility visa applicant sponsored visit australia get know review applicant visa applicant told tribunal come australia would look mother law job told tribunal plan marry 14 february 2010 subject visa granted explained discussed plan future explained plan live together review applicant parent made plan move place told tribunal discussed child decided start family review applicant finished study earning reasonable income tribunal asked visa applicant would feel leaving parent sibling vietnam replied living closely family sad came australia three month visit miss come australia permanently however added family thought visa applicant future considered best interest decided marrying review applicant moving live australia would best thing visa applicant told tribunal although relationship started telephone got impression review applicant kind man said since meeting opportunity go know love grown post hearingon 4 january 2010 tribunal received following document review applicant representative genealogical chart setting visa applicant review applicant respective family composition line descent copy document provided department pursuant request freedom information law relating application made visa applicant visit australia sponsored family visitor visit occurred 2 march 2008 may 2008 12 january 2010 tribunal received one page facsimile comment document provided 4 january 2010 copy genealogical chart facsimile review applicant representative writes amongst thing complete copy visa applicant visitor visa file adf2009 12159 obtained foi diac mailed 21 december 2009 clearly show least genealogical confusion vietnamese terminology family member worst subterfuge part family familial relationship visitor visa lodged affidavit file folio 29was patently incorrect visa applicant father however apologised part per recent letter apology sent tribunal submit couple innocent party matter finding reasonsthe tribunal found party appeared truthful honest witness tribunal found party response appear rehearsed embellished purpose bolstering application tribunal note appears misformation provided application visitor visa visa applicant visit australia march may 2008 misinformation familial relationship visa applicant information appears provided intending sponsor mr doan van mon tribunal note mr doan van mon provided letter apology misstatement tribunal regard misinformation intentional negligent reckless misstatement untruthful statement generally grave concern serious matter indeed however circumstance particular case tribunal find nature circumstance misstatement visa applicant previous sponsor kind impugn cast doubt evidence party tribunal satisfied party misrepresent actual familial relationship time time thereafter tribunal found review applicant evidence detailed spontaneous tribunal observed review applicant detailed knowledge visa applicant family including detailed understanding visa applicant work involved providing water father work field day also described also help mother meat selling porridge selling business review applicant told tribunal visa applicant sibling including deceased sibling tribunal find review applicant credible witness accepts evidence provided truthful visa applicant tribunal decided evidence similarly credible based consistency review applicant based plausibility clause 300 211 requires time application visa applicant intends marry person australian citizen australian permanent resident eligible new zealand citizen tribunal sighted copy review applicant certificate australian citizenship issued 22 july 1993 certified copy photograph page review applicant australian passport based evidence tribunal satisfied review applicant australian citizen accordingly tribunal find requirement cl 300 211 schedule 2 met tribunal also find clause 300 211 satisfied time tribunal decision since review applicant continues australian citizenship time tribunal decision clause 300 214 requires party met known personally tribunal find time application time tribunal decision party met developed relationship knew tribunal also find relationship continued continues present time tribunal therefore find party satisfy cl 300 214 time application time tribunal decision clause 300 216 requires time application party genuinely intend live together spouse regard consideration spousal relationship set earlier reason tribunal make following finding tribunal regard evidence relation relationship party tribunal accepts review applicant mother instrumental introducing visa applicant son tribunal find evidence review applicant visa applicant established contact phone may 2007 maintained regular contact met physically 30 december 2007 vietnam tribunal note delegate finding visa applicant told department first contact review applicant occurred touring review applicant mother march 2007 delegate note claim inconsistent party written statement declare first telephone contact occurred may 2007 tribunal accepts statement appear inconsistent however light evidence tribunal accepting date sometimes confused tribunal find inconsistency fatal party claim overall tribunal accepts evidence party held engagement ceremony 15 january 2008 plan marry registry birth death marriage perth hold wedding celebration perth clause 300 215 requires visa applicant establish party genuinely intend marry marriage take place within visa period based relevant evidence tribunal including notice intended marriage party oral evidence tribunal find visa applicant satisfies cl 300 215 time visa application time tribunal decision tribunal also accepts evidence provided review applicant married intend live together spouse parent large home determining whether party intend live together spouse tribunal considered evidence including relating financial social aspect relationship nature household party commitment tribunal found review applicant provided financial assistance visa applicant way money transfer tribunal also find review applicant parent supplemented money transfer tribunal placed le weight evidence tribunal find party joint real estate asset joint liability however given relative young age live separate country unexpected tribunal place great weight factor term social aspect relationship tribunal found engagement recognised party respective family party registered notice intended marriage registry western australia party evidence tribunal accepts gone together family support relationship respect household aspect relationship tribunal find party lived roof brief period vietnam australia visa applicant visited march may 2008 finally term party commitment evidence tribunal find appears bond party genuine plan future life together tribunal therefore find time application party genuine intention live together spouse therefore meet cl 300 216 schedule 2 tribunal satisfied time tribunal decision party continue genuine intention live together spouse continue satisfy cl 300 216 regulation clause 300 221 requires time decision visa applicant continue satisfy criterion cl 300 211 300 214 300 215 300 216 visa applicant intends marry australian citizen australian permanent resident eligible new zealand citizen party met known personally party genuinely intend marry intend visa period party genuinely intend live together spouse regard evidence outlined preceding paragraph tribunal find time decision applicant continues satisfy cl 300 211 300 214 300 215 300 216 schedule 2 accordingly tribunal find visa applicant satisfy cl 300 221 schedule 2 clause 300 221a requires time decision impediment marriage australian law visa applicant prospective spouse 18 minister must satisfied turn 18 end period within intended marriage take place australian court order issued unders 12of themarriage actauthorising party marry latter case minister must satisfied marriage take place tribunal find review applicant visa applicant comparatively distantly related virtue review applicant father previous marriage based evidence tribunal including genealogical chart provided tribunal hearing party evidence tribunal hearing tribunal satisfied party prohibited relationship defined bysubsection 23b 2 themarriage act 1961 based evidence appears visa applicant maternal grandfather sister used married review applicant father review applicant father subsequently remarried review applicant born second marriage tribunal satisfied proposed marriage visa applicant prospective spouse would invalid australian law accordingly tribunal find cl 300 221a schedule 2 satisfied conclusionsgiven finding appropriate course remit application visa department consider remaining criterion subclass 300 visa visa applicant found meet remaining criterion visa applicant entitled grant subclass 300 visa decisionthe tribunal remit application prospective marriage temporary class visa reconsideration direction visa applicant meet following criterion subclass 300 prospective marriage visa cl 300 216 schedule 2 regulation cl 300 221 schedule 2 regulation cl 300 221a schedule 2 regulation tony caravellamember

THE STATE OF WESTERN AUSTRALIA -v- HEDGELAND [2011] WASC 302 (1 November 2011).txt

state western australia v hedgeland 2011 wasc 302 1 november 2011 state western australia v hedgeland 2011 wasc 302 1 november 2011 last updated 7 september 2012jurisdiction supreme court western australiain criminalcitation state western australia v hedgeland 2011 wasc 302coram hall jheard 26 october 2011delivered 1 november 2011file in 77 2011between state western australiaprosecutionandandrei peter hedgelanddefencecatchwords criminal law evidence admissibility part police interview fairness questioning turn factslegislation nilresult ruling madecategory brepresentation counsel prosecution m l forresterdefence m l b blacksolicitors prosecution director public prosecution wa defence kate king legal pty ltdcase referred judgment nil1hall j defence object certain passage record interview accused police 9 april 2010 2the passage marked red copy transcript interview provided prosecution argument admissibility occurred direction hearing held 26 october 2011 trial listed commence monday 7 november 2011 state reason briefly 3counsel accused urged watch video interview assessing objection order see demeanour hear tone voice used interviewing police officer accused taken opportunity watch video 9 april 2010 4i identify passage reference transcript page transcript1page 8

Christian Brethren Community Services T_A Christian Brethren Community Services [2017] FWCA 6686 (21 December 2017).txt

christian brother community service christian brother community service 2017 fwca 6686 21 december 2017 last updated 15 march 2018 2017 fwca 6686 note afurther decisionhas issued document fair work commissiondecisionfair work act 2009s 185 enterprise agreementchristian brother community service christian brother community service ag2017 4842 cbc nswnma hsu nsw enterprise agreement 2017 2020aged care industrycommissioner saundersnewcastle 21 december 2017application approval cbc nswnma hsu nsw enterprise agreement 2017 2020 1 application made approval enterprise agreement known thecbcs nswnma hsu nsw enterprise agreement 2017 2020 agreement application made pursuant tos 185of thefair work act 2009 act made christian brother community service christian brother community service employer agreement single enterprise agreement 2 agreement lodged part application approval contained error page 82 6 december 2017 applicant filed amended version agreement pursuant tos 586of thefair work act 2009 cth act correcting error page 82 satisfied correction made appropriate pursuant tos 586of act 3 employer provided written undertaking undertaking copy undertaking attached annexure decision satisfied effect accepting undertaking likely cause financial detriment employee covered agreement b result substantial change agreement 4 view person fair work commission know bargaining representative agreement sought relation undertaking 5 pursuant tosubsection 190 3 act accept undertaking 6 subject undertaking satisfied requirement ofss 186 187 188and190as relevant application approval met 7 health service union australia australian nursing midwifery federation new south wale nurse midwife association bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 note agreement cover organisation 8 agreement approved accordance withs 54of act operate 28 december 2017 nominal expiry date agreement 30 june 2020 commissionerprinted authority commonwealth government printer price code ae426517pr598671 annexure

Sami v Victory Lodge Pty Limited [2020] NSWWCCPD 34 (3 June 2020).txt

sami v victory lodge pty limited 2020 nswwccpd 34 3 june 2020 last updated 10 june 2020determination appeal decision commission constituted arbitratorcitation sami v victory lodge pty limited 2020 nswwccpd 34appellant yankat samirespondent victory lodge pty limitedinsurer racing nswfile number a1 3039 19arbitrator mr j wynyarddate arbitrator decision 24 october 2019date appeal decision 3 june 2020subject matter decision injury 4 b ii theworkers compensation act 1987 finding fact based evidence 9bof theworkers compensation act 1987 drawing inference adequacy reasonspresidential member acting deputy president geoffrey parker schearing papersrepresentation appellant mr moffett counselwalker law grouprespondent mr p macken solicitorleigh virtue associatesorders made appeal name respondent wherever appears amended read victory lodge pty limited arbitrator certificate determination dated 24 october 2019 confirmed introductionon 11 march 2015 mr sami appellant suffered heart attack whilst working premise respondent employer victory lodge pty limited confusion whether heart attack occurred 13 march 2015 arbitrator note award 11 march 2015 precise date significance mr sami brought proceeding lump sum compensation victory lodge pty limited name respondent amended arbitrator consent 1 note respondent named application appeal decision arbitrator racing nsw victory lodge pty ltd 20 march 2020 appellant made application amend name respondent victory lodge pty limited consent name respondent wherever appears amended read victory lodge pty limited 21 october 2019 arbitrator commission rejected mr sami claim entered award respondent appeal determination background factsmr sami commenced working stable hand victory lodge unspecified date 2010 dispute appellant suffered myocardial infarction commencement oral reason arbitrator summarised circumstance appellant injury 2 quoted appellant statement dated 1 june 2018 carrying water heavy started getting pain chest leg started giving way fell onto back lost consciousness next thing woke liverpool hospital told heart attack 3 second statement dated 8 june 2019 mr sami described work following term gained employment victory lodge full time stable hand 2010 daily work demanding labour intensive work involved clean stable enough staff dig sawdust shovel sawdust manure drag heavy dust pan tip also perform truck driving carry many bucket water stable feed horse water hay item horse need cumbersome difficult carry little help well known 11 march 2015 sustained injury work involved heart attack time carrying heavy bucket water dip container quite high tall really acute chest pain leg gave way fell onto ground back unconscious 4 arbitral proceeding decisionthe proceeding commenced application resolve dispute ard registered commission 21 june 2019 part 4of ard particularised injury physical injury form plaque rupture circumflex coronary artery result heavy manual work alternative aggravation disease alleged also suffered physical injury lumbar spine right shoulder left shoulder right knee result employment aggravated injury 11 march 2015 course hearing counsel worker informed arbitrator injury relied upon limited heart injury occurred 11 march 2015 reply application received commission 27 june 2019 21 october 2019 arbitrator delivered oral reason order certificate determination dated 24 october 2019 issued order recorded follows 1 award respondent grant leave respondent lodge application admit late document dated 21 december 2019 applicant application claim injury lumbar spine right upper extremity left upper extremity shoulder left lower extremity right lower extremity knee discontinued dispense necessity applicant lodge notice discontinuance appellant filed application appeal decision arbitrator 21 november 2019 respondent filed notice opposition appeal decision arbitrator dated 15 january 2020 filing time respondent seek leave rely time filing deal later statement reasonsthe arbitrator finding explicitly stated oral statement reason arbitrator dismissed attack mr sami credit 5 credit issue concerned number matter firstly letter dated 26 may 203 arbitrator concluded probably written mr sami secondly arbitrator rejected submission heart attack may occurred ambulance elsewhere basis evidence witness joanne hospital record thirdly accept mr sami misleading heart attack occurred fourthly accepted mr sami ignorant requirement give notice make claim within time 6 arbitrator accepted heart attack occurred whilst mr sami carrying water 7 popular worker arbitrator accept mr sami description work heavy heavy duty labouring work 8 preferred mr connor evidence work arranged suit fit large gentleman issue determinative party dispute conflicting opinion dr berger dr herman preferred dr berger expressed opinion mr sami multiple risk factor including strong family history premature coronary disease brother infarct father died infarct mid 50 mr sami poorly controlled diabetes time dr berger saw continued smoke dr berger expressed opinion act lifting 10 kilogram container water nothing trivial contributor myocardial infarction dr herman contrary opinion arbitrator isolated difference two specialist cardiologist preferred opinion dr berger heart attack mr sami case inevitable 9 arbitrator preferred dr berger opinion dr berger treated mr sami hospital first heart attack b treating mr sami hospital dr berger said recollection hospital documentation effect mr sami developed chest pain stable work specific mention water container c dr berger regarded assertion event question represented plaque rupture speculative arbitrator finding immediately heart attack sudden excessive work effort rather mr sami performing usual work duty 10 e arbitrator accepted dr berger opinion whilst myocardial infarction context physical exertion well described plaque complication occurring spontaneously rest 11 f arbitrator directed attention dr berger opinion mr sami subsequent original heart attack suffered multiple myocardial infarction including occasion asleep confirmed mr sami experienced spontaneous infarction without physical activity preference dr berger opinion led arbitrator reject dr herman opinion heart attack resulted worker repeatedly lifted 10 15 kilogram drum water causing atherosclerotic plaque rupture occasioning thrombosis arbitrator accepted opinion dr berger moderate level physical activity undergoing time event small contributor event main proximate cause multiple poorly controlled cardiovascular risk factor including smoking diabetes poor glycaemic control obesity arbitrator said satisfied happened underlying cardiovascular risk factor came visit time heart attack 12 dispositive conclusion expressed briefly page 15 another problem nature injury pleaded aggravation disease doubt mr sami evidence referred arteriosclerotic disease section 4b ii 1987 act claim along s16 applied would shown employment main contributing factor reason already given risk factor found mentioned dr berger treating cardiologist week injury could said employment main contributing factor arbitrator discussed s 9a 9b response submission made appellant counsel hearing however critical dispositive finding mr sami persuaded arbitrator main contributing factor heart attack employment result award respondent paperssection 354 6 theworkplace injury management worker compensation act1998

Yunupingu v Sims [2009] NTSC 2 (30 January 2009).txt

yunupingu v sims 2009 ntsc 2 30 january 2009 last updated 14 april 2011yunupingu v sims 2009 ntsc 02parties yunupingu terrancevsims ericatitle court supreme court northern territoryjurisdiction supreme court northern territory exercising territory jurisdictionfile ja25 2008 20723135 delivered 30 january 2009hearing date 2 october 7 24 november 8 december 2008 28 january 2009judgment thomas jcatchwords criminal law appeal appeal sentence ground interference sentence manifestly excessivewhether sentence imposed manifestly excessive whether sentence imposed onerous whether sentence imposed uncertain whether insufficient weight given nature circumstance appellant whether insufficient weight given nature circumstance offence whether excessive weight given sentencing magistrate requirement general deterrence whether sentencing magistrate took account irrelevant prejudicial factorscriminal law appeal appeal sentence ground interference parity co offendersco offender older culpable lengthier record conviction whether appellant would justifiable sense grievancecriminal law appeal appeal sentencewhether appeal duly instituted requirement appellant enter signed recognisance 171 thejustices act nt whether appellant done whatever reasonable practicable institute appeal 165 thejustices act nt whether requirement 171 thejustices act nt dispensed withcriminal code s 210 213 251 1 251 2 justice act s 167 171sentencing act s 42 43 6 representation counsel appellant c dolmanrespondent p horvatsolicitors appellant north australian aboriginal justice agencyrespondent office director public prosecutionsjudgment category classification cjudgment id number tho200901number page 14in supreme courtof northern territoryof australiaat darwinyunupingu v sims 2009 ntsc 02no ja25 2008 20723135 yunupingu terranceappellantand sims ericarespondentcoram thomas jreasons judgment delivered 30 january 2009 1 appeal sentence imposed appellant court summary jurisdiction 18 april 2008 2 appellant entered plea guilty following six charge committed 26 august 2007 aggravated unlawful property damage contrary s 251 1 251 2 criminal code offence carry maximum 7 year imprisonment unlawful entry contrary 213 criminal code offence carry maximum 14 year imprisonment stealing contrary 210 criminal code offence carry maximum 7 year imprisonment unlawful entry contrary 213 criminal code offence carry maximum 14 year imprisonment stealing contrary 210 criminal code offence carry maximum 7 year imprisonment unlawful property damage contrary 251 1 criminal code offence carry maximum 2 year imprisonment 3 fact support charge follows tp 2 3 evening sunday 26 august 2007 defendant aboriginal itinerant bush camp located near narrow evening 9 pm defendant along co offender formed intent attend liquorland bottle shop winnellie break steal liquor defendant co offender walked liquorland winnellie defendant placed rock shirt attempted smash side glass panel store rock unable completely smash glass panel co offender andrew gurrawiwi finally smashed hole glass panel defendant stood co offender put arm hole able reach red wine stock shelf defendant took seven bottle red wine yellow tail shiraz shared bottle amongst co offender fled area returned bush camp drank wine final consumption stolen liquor defendant co offender formed intent attend liquorland winnellie steal liquor 1 morning monday 27 august 2007 defendant co offender attended liquorland winnellie co offender gurrawiwi obtained steel bar enlarged hole made glass previous break bent back thick wire mesh inside store allow access defendant enter store entered store caused 10 bottle wine break damage shelf point entry whilst inside store made number trip stolen item shop point entry passed co offender waiting outside stolen item listed charge came shop hole glass stood stolen liquor dispersed carried back bush camp whilst en route back bush camp defendant co offender located police attending security alarm liquorland winnellie defendant located stolen liquor subsequently arrested 27 august 2007 participated record interview making full admission asked reason offence replied told come damage caused window estimated 1 500 damage shelf 300 damage broken wine entry 174 95 total value good stolen 109 60 amended 809 60 time permission enter liquorland winnellie steal item liquorland winnellie damage property liquorland winnellie 4 appellant counsel court summary jurisdiction made following submission tp 4 seeking today honour honour impose suspended sentence go home millingimbi happy honour first time court first time custody custody 11 day already submission term personal deterrence certainly significant enjoyed time honour 5 aggregate sentence imposed count 1 5 inclusive six month imprisonment 7 april 2008 suspended forthwith operational period two year 18 april 2008 condition condition 1 depart darwin fly milingimbi 5 00pm 18 april 2008 2 enter remain darwin palmerston area 12 month 18 april 2008 except seriously sick cannot treated community 6 count 6 convicted sentenced 10 day imprisonment 7 april 2008 suspended forthwith condition 7 mr yunupingu released later date 18 april 2008 matter brought back learned stipendiary magistrate possible organise flight darwin date appellant 8 learned stipendiary magistrate amended condition 1 added condition defendant suspended sentence follows condition 1 amended respect time date flight milingimbi read 23rdapril 2008 condition 2 unchanged condition 3 18 april 2008 noon 23 april 2008 defendant reside fenton flat flat 13 335 stuart highway absent premise evening 7 00pm 7 00am evening 22 april 2008 7 00pm 12 00 noon 23 april 2008 condition 4 consume alcohol condition 5 present police correctional service curfew hour called upon condition 6 submit random alcohol testing required police correctional service defendant consented condition released 9 21 april 2008 mr yunupingu brought court breach condition consume alcohol basis 1455 hour 21 april 2008 breath test conducted defendant reading 0 048 percent defendant admitted sip wine reading 0 048 percent put breach condition 4 10 pursuant tos 42of thesentencing act learned stipendiary magistrate varied condition suspended sentence follows condition 1 amended departure time fly milingimbi read 2 15pm 23 april 2008 condition 2 remained unchanged condition 3 changed delete word 22 april 2008 insert lieu thereof 4 00pm 1 00pm 23 april 2008 condition defendant required remain residence 4 00pm 22 april 1 00pm 23 april 2008 condition 4 changed add word consume alcohol word whilst darwin palmerston area condition 5 amended read defendant present police correctional service curfew hour referred condition 3 hereof called condition 6 amended read defendant submit random alcohol testing required police correctional service time located darwin palmerston area 12 month one day 22 april 2008 11 ground appeal follows 1 sentence manifestly excessive 12 leave also sought add following ground appeal 2 insufficient weight given personal feature appellant appellant offence 3 excessive weight given general deterrence 4 learned magistrate erred taking account irrelevant prejudicial factor condition suspended sentence requiring appellant abstain alcohol 2 year onerous manifestly excessive uncertain condition suspended sentence requiring appellant enter remain darwin palmerston area 12 month except attend urgent necessary medical treatment onerous manifestly excessive uncertain 13 m horvat behalf crown submitted properly instituted appeal court appellant entered recognisance prosecute appeal required bys 167of thejustices act 14 affidavit sworn 15 august 2008 callum leigh dolman solicitor appellant asserts failure comply withs 167of thejustices actmust lie appellant counsel acting expeditiously bring requirement enter recognisance appellant attention acting expeditiously recognisance signed appellant 15 mr dolman also attests fact various effort made locate appellant intervening period without success 16 note sentence appealed imposed 18 april certain condition subsequently amended 17 18 april 2008 appellant instructed solicitor lodge notice appeal ground sentence manifestly excessive notice appeal filed 2 may 2008 served respondent date appeal instituted within one month required bys 171of thejustices act 18 affidavit callum dolman sworn 15 august 2008 michelle swift sworn 15 august 2008 marlene dixon sworn 15 august 2008 make clear appellant never made aware enter recognisance appellant address residing darwin lawyer attended place residence 23 april 2008 sign recognisance draw inference appellant already left return millingimbi 19 appellant lawyer institute appeal promptly brought attention required sign recognisance lawyer appellant able contact affidavit mr dolman sworn 5 december 2008 detail effort made contact appellant 28 january 2009 mr dolman attended court made submission concerning extensive effort made office make contact appellant without success suggestion respondent suffers prejudice failure appellant enter recognisance circumstance find appellant lawyer done whatever reasonably practical comply act dispense requirement enter recognisance 20 mr dolman appeared appellant appeal court stated would submitting suspended sentence appropriate essence appeal period suspended sentence long condition requiring abstinence alcohol enter darwin palmerston area 12 month except medical treatment urgent necessary onerous 21 m horvat appeared represent respondent appeal argued appellant demonstrated error way learned magistrate approached sentencing process position behalf respondent sentence imposed appellant manifestly excessive regard nature gravity crime appeal dismissed 22 close submission asked information sentence imposed co offender advised crown would check advise counsel appellant e mail 23 received e mail m horvat advising co offender andrew darkad gurruwiwi dealt darwin alcohol court 29 november 2007 e month appellant dealt court summary jurisdiction respect charge faced appellant 24 andrew gurruwiwi pleaded guilty convicted sentenced aggregate three month imprisonment backdated 1 november 2007 charge aggravated unlawful damage unlawfully entering building night two charge stealing 26 august 27 august sentence suspended entering alcohol intervention order supervised six month charge stealing sentenced one week imprisonment concurrent first sentence suspended entering alcohol intervention order supervised six month order pay restitution sum 900 paid liquorland winnellie 25 note record conviction included information provided crown andrew gurruwiwi considerably older appellant andrew gurruwiwi 37 year age time commission offence lengthy record prior conviction 1987 november 2007 including conviction assault drug offence involve alcohol abuse served two month imprisonment following conviction fourth exceed 08 charge 6 october 1998 date sentenced term actual imprisonment drive disqualified two breach suspended sentence 26 29 august 2002 convicted assault police causing bodily harm sentenced imprisonment six month period actual imprisonment offence drive motor vehicle disqualified 27 andrew gurruwiwi would appear principal offender one ordered pay restitution learned stipendiary magistrate accepted appellant matter leader stated course reason sentence tp 6 clearly company others convinced get involved criminal activity 28 comparison appellant date offending 19 year age court without prior conviction entitled consideration extended youthful offender without prior conviction held custody 11 day learned stipendiary magistrate take matter account however sentencing magistrate detail sentence imposed co offender andrew gurruwiwi lengthy record offending culpable respect offending 29 upon receipt information concerning sentence imposed upon andrew gurruwiwi requested appeal listed could hear submission issue parity sentencing 30 heard submission take account andrew gurruwiwi spent longer period time custody 28 day custody received order pay restitution sum 900 obligation alcohol intervention order period six month 31 appellant matter court spent 11 day custody evidence continually abuse alcohol warrant alcohol intervention order ordered pay restitution 32 appellant unlike andrew gurruwiwi prior conviction regarded principal offender criminal offence 33 appellant given credit plea guilty although entered earliest reasonable opportunity nevertheless entitled discount granted leave add parity sentencing additional ground appeal 34 basis parity sentencing consider appeal allowed appellant would justifiable sense grievance older culpable co offender lengthy record prior conviction receive sentence considerably shorter appellant lowe v queen 1984 hca 46 1984 154 clr 606 35 lawyer appellant unable locate since appeal instituted another issue arises problem imposing suspended period imprisonment appellant cannot located enter appropriate undertaking affidavit callum leigh dolman sworn 5 december 2008 detail effort mr dolman member staff north australian aboriginal justice agency made appellant contact lawyer 28 january 2009 appellant contacted lawyer 36 court could adjourn matter effort made contact appellant however already number adjournment purpose lawyer appellant expended considerable time effort attempt locate decided matter concluded 37 accept considerable extenuating circumstance matter particular youth appellant lack prior conviction lesser role played commission offence 38 mr dolman submits although able argue suspended sentence imprisonment appropriate reason court could proceed deal matter finding 11 day appellant spent custody sufficient penalty offence 39 m horvat behalf respondent seek argue appeal allowed basis parity sentencing informed appellant come attention authority since 23 april 2008 neither m horvat crown mr dolman defence sought argue sentence 11 day imprisonment offence within sentencing discretion court 40 accordingly order make appeal allowed set aside order made learned stipendiary magistrate order appellant sentenced count 1 5 11 day imprisonment count 6 10 day imprisonment concurrent sentence oncounts 1 5 total 11 day imprisonment 41 sentence backdated 7 april 2008 take account time spent custody _____________________________