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Construction, Forestry, Mining and Energy Union - re Award declared common rule - PR953511 [2004] AIRC 1277;
(16 December 2004).txt | construction forestry mining energy union award declared common rule pr953511 2004 airc 1277 16 december 2004 aw772585pr953511australian industrial relation commissionworkplace relation act 1996s 141common rulesconstruction forestry mining energy union c2004 5155 clay ceramic industry brick terra cotta tile manufacture victoria award 2000 odn c 32525 1993 aw772585pr903528 clay ceramic industrycommissioner lewinmelbourne 16 december 2004award declared common rule decision 1 decision deal application construction forestry mining energy union cfmeu pursuant toss 141and 493a theworkplace relation act 1996 act term condition clay ceramic industry brick terra cotta tile manufacture victoria award 2000 award declared common rule victoria 2 notice application given registrar accordance withregulation 16 form r56 17 august 2004 published public notice theherald sunandthe agenewspapers 27 august 2004 3 notice appearance form r57 filed victorian employer chamber commerce industry vecci australian industry group aig 4 matter listed mention senior deputy president lacy 4 october 2004 hearing direction production circulation draft declaration material issued program disposition application agreed party 5 october 2004 matter allocated disposition accordance programme 5 matter next heard 23 november 2004 hearing mr maxwell appeared cfmeu mr stewart appeared aig mr eberhard appeared vecci aig maintained objection previously stated correspondence dated 3 november 2004 making declaration term exhibit a1 matter adjourned 14 december set determination however prior hearing informed party agreed term amended draft declaration sought hearing cancelled declaration made term amended draft 6 satisfied amended draft declaration filed cfmeu 3 december properly give effect decision full bench inpr950653 also satisfied declaration consistent common rule victoria statement principle adopted full bench particular declaration promotes object 493a act 7 declaration generally declares substantive provision relevant award operate common rule subject specific clause identified declaration declaration proposed operate earliest practicable date 1 january 2005 sufficient time affected employer notified term condition relevant award simplified award commission term condition fixed consistently statement principle thesafety net review wage may 2004 decision pr002004 8 satisfied amended draft declaration filed cfmeu 3 december reflects style substance template declaration endorsed full bench finally respect overlap note declaration contains provision per item 6 full bench template declaration shall apply employer respondent mean another award commission respect employment employee covered award overlap potential overlap identified party relation declaration 9 cfmeu given undertaking intention seek retrospectively enforce common rule declaration circumstance employer legitimately appropriately applying another award also cover work performed employer subject undertaking position without prejudice right party seek making roping award irrespective existence common rule declaration 10 circumstance make declaration term amended draft declaration filed cfmeu 3 december declaration shall come force 1 january 2005 shall remain force period three month thereafter accordance act printed authority commonwealth government printer price code |
Ju, Li [2003] MRTA 2410 (23 April 2003).txt | ju li 2003 mrta 2410 23 april 2003 last updated 26 may 2003 2003 mrta 2410catchwords review visa refusal subclass 105 106 usual occupation mechanical engineer ore list assessed score point testreview applicant li juvisa applicant biao juying baitribunal migration review tribunalpresiding member janis buttmrt file number a01 00165dept file f97 018900date decision 23rdapril 2003at canberradecision tribunal remit application made primary visa applicant skilled australian linked migrant class aj visa department immigration multicultural indigenous affair reconsideration direction primary visa applicant satisfies clause 105 222 schedule 2 clause 105 224 schedule 2statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural affair dr biao ju visa applicant national china born 1 march 1969 applied skilled australian linked migrant class aj visa 8 december 1997 together wife m ying bai born 30 july 1975 delegate decision refuse grant visa made 4 october 2000 jurisdiction standing2 li ju review applicant sister visa applicant lodged valid application review tribunal 18 december 2000 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 drake v minister immigration ethnic affair 1979 24 alr 577 4 tribunal power affirm vary set aside decision refuse grant visa also power remit application visa 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 legislation policy material immediately relevant review legislation section 92 96and350of themigration act 1958regulations 1 15 1 19 2 08a 2 26and2 27 item 1128a schedule 1 part 105of schedule 2 schedule 6 regulationspolicy procedure advice manual 3schedule 2 skilled australian linked visa 105schedule 6 general point test qualification pointsschedule 6 usual occupation australian standard classification occupation 2ndedition noosr country education profile china gazette notice gn 31 7 august 1996 specification pas mark pool markgn 50 18 december 1996 list occupation requiring english time primary assessmentgn 25 25 june 1997 specification pas mark pool markgn 6 11 february 1998 list occupation requiring english time review 426 28august 1998 designated area purpose item 6701 schedule 6s601 21 december 1998 designated area purpose item 6701 schedule 6cases zeng guang wang v minister immigration multicultural affair 1998 fca 30drake v minister immigration ethnic affair 1979 24 alr 577 kumaraperu v mima 1998 1333 fca 22 october 1998 6 tribunal generally regard regulation stood time visa application however subclass 105 application tribunal required bysection 350of act reviewing assessment minister undersection 93of act relation point test regard whichever following favourable applicant regulation purpose force time assessment made minister b regulation purpose force time decision made tribunal assessment 7 point test assessment tribunal generally apply regulation force time visa application evidence8 tribunal following document t1 mrt case file a01 00165 folio numbered 1 24 d1 departmental case file f97 018900 folio numbered 1 72 primary application9 8 december 1967 visa applicant national china lodged visa application department australian embassy beijing china visa application transferred onshore visa processing office adelaide june 2000 application concessional family migrant class aj visa currently known skilled australian linked migrant class aj visa skilled australian linked migrant class aj visa application lodged conjunction sponsorship application dated 17 september 1997 li ju review applicant visa applicant provided documentary evidence showing visa applicant sponsor brother review applicant became australian citizen 28 may 1997 mr biao ju primary visa applicant10 visa application primary visa applicant described usual occupation assistant engineer primary visa applicant stated employed shaanxi commercial design institute july 1990 september 1992 primary visa applicant described duty air conditioning refrigeration designing public housing industrial purpose primary visa applicant provided evidence obtained following qualification bachelor engineering degree xi institute metallurgy construction engineering july 1990 master degree engineering xi jiaotong university july 1995 doctoral degree engineering xi jiaotong university july 1998 primary visa applicant also provided evidence academic career including detail thesis major project involved team member undertaking doctoral degree 11 conducting primary assessment delegate determined visa applicant usual occupation studying continuously since 1992 evidence employment engineer two year prior visa application delegate noted primary visa applicant qualification recognised institution engineer australia iea standing professional engineer australia however primary visa applicant employed period question delegate determined primary visa applicant entitled point employment qualification 12 number point awarded primary visa applicant time primary assessment follows employment 00 age 30 language 20 relationship 10 citizenship 05 settlement 10 location 00 total point 75 13 regulation 2 27states primary visa applicant reach pool pas mark primary applicant score may reassessed basis sum point could awarded primary applicant spouse employment age language skill qualification point awarded primary visa applicant qualification virtue subclause 105 223 2 spouse must working age primary visa applicant reach either pool pas mark delegate went ass skill secondary visa applicant m ying bai secondary visa applicant14 secondary visa applicant stated visa application form employed secretary july 1995 february 1996 assistant manager february 1996 december 1997 real estate office delegate found secondary visa applicant usual occupation supervisor accounting clerk asco code 6141 01 delegate determined occupation required australian qualification framework aqf certificate level ii higher qualification secondary visa applicant associate diploma majoring financial accounting least equivalent certificate level qualification basis awarded secondary visa applicant 25 point employment component 15 delegate ass secondary visa applicant language skill considered even secondary visa applicant obtained maximum score 20 point would meet pool entry mark 110 point principal visa applicant attained pool entry mark 110 point pas mark 115 point application skilled australian linked formerly concessional family migrant class aj visa refused delegate 4 october 2000 review application16 18 december 2000 review applicant applied tribunal review decision review applicant stated primary visa applicant continuously employed since april 1999 engineer except time awarded scholarship improve qualification master degree 1995 doctorate 1998 review applicant stated since visa applicant paid scholarship time period could also considered employment finding reasons17 undersection 360 2 themigration act1958 |
Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 261 (24 March 1999).txt | marsden v amalgamated television service pty limited 1999 nswsc 261 24 march 1999 last updated 31 march 1999new south wale supreme courtcitation marsden v amalgamated television service pty limited 1999 nswsc 261current jurisdiction common lawfile number 20223 199520592 1996hearing date 24 march 1999judgment date 24 03 1999parties john marsden plaintiff vamalgamated television service pty limited defendant judgment levine jlower court jurisdiction applicablelower court file number applicablelower court judicial officer applicablecounsel barker q c g reynolds c r mchugh plaintiff w h nicholas q c j wheelhouse defendant solicitor phillips fox plaintiff mallesons stephen jacques defendant catchword claim privilege document produced answer np6acts cited decision see paragraph 6 7 8judgment dljt 27 ex tempore revised supreme courtof new south walescommon law divisiondefamation listno 20223 1995no 20592 1996justice david levinewednesday 24 march 1999john marsden plaintiff vamalgamated television service pty limitedacn 000 145 246 defendant judgment claim privilege document produced answer np6 1 honour 26 february 1999 mr ian robert angus swore affidavit filed court 22 march 1999 18 march 1999 notice produce identified np6 delivered solicitor plaintiff solicitor defendant call made upon notice produce 22 march stood 23 march defendant response call set line 25 45 page 481 transcript 2 document produced answer notice position relation document produced face 1 photocopy 2 clear acknowledged case part physical document obliterated produce produced photocopy 3 respect obliterated part document photocopy produced bear endorsement remainder document marked irrelevant basis upon sought preclude inspection plaintiff document defendant would difficulty question relevance absence claim way privilege would arise upon deployment evidence document ever took place claim privilege defendant make protect balance document 4 plaintiff contended claim privilege initially made waived extent photocopy produced question arises say either common law 126 theevidence actas whether circumstance requiring production balance basis fairness common law term 126 theevidence act enable proper understanding document 5 purpose inspected original whole document transcription make legible prepared court morning referred justice sackville decision intowney v minister land water conservation 1977 76 fcr 401 particularly honour observation respect 126 page 414b e decision justice lehane inhammer others v sunman another unreported 2 october 1998 take account honour observation relation particular application concerned 6 conclusion come read balance document respect privilege claimed find properly claimed necessity proper understanding communication document constituted first part unfairness arising non disclosure second thus decline require defendant produce anything produced 7 come view consider context produced relation affidavit notice produce response call made yesterday transcript reference already referred 8 photocopy produced exhibited form mfi 5 original transcription mfi 6 last updated 30 03 1999 |
SP Abrahams v Hobart City Council [2020] TASRMPAT 14 (7 July 2020).txt | citation sp abraham v hobart city council 2020 tasrmpat 14 party appellant sidney patrick abraham respondent hobart city council subject land 2 30 cross street new town appeal 53 20pe jurisdiction planning appeal hearing date submission made responded writing decision date 7 july 2020 delivered hobart r grueber presiding member representation appellant self represented respondent self represented catchword planning appeal file 53 20pe page 2 j 14 2020 reason decision introduction 1 4 june 2020 hobart city council council served enforcement notice notice mr sidney abraham appellant posting appellant address 2 30 cross street new town 2 notice issued u nder s65c land use planning approval act 1993 lupa alleging development contrary planning scheme breach s63 2 lupa development particularised construction extension building roof level including removal chimney skylight without planning approval issued provision hobart interim planning scheme 2015 contravention clause 8 4 1 hobart interim planning scheme 2015 3 service effected appellant purs uant s84 lupa posting notice 1 section 61 7 lupa provides appeal tribunal respect enforcement notice may made within 14 day day notice served appeal period therefore expired 18 june 2020 2 4 appellant lodged notice appeal tribunal 25 june 2020 seven day expiration appeal period 5 day notice appeal filed appellant made written application extension time file appeal ground application described appellant mail mixed mail café next door closed lockdown got 24 6 20 6 council advised tribunal 26 june 2020 want heard relation application extend time 7 notice appeal state date upon appellant received notice 4 june 2020 given date posting appellant advice notice received 24 june 2020 absence contention evidence contrary tribunal accepts actually received appellant 24 june 2020 appeal lodged following day material tribunal disclose time appellant received notice 24 june appears acted promptly following receipt file appeal apply extension time 8 section 13 2a resource management planning appeal tribunal act 1993 rmpat act set matter tribunal must take account considering whether extend time instituting appeal s61 lupa matter reason appeal lodged within period specified 1 see ta bulk pty ltd v royal wolf trading australia pty ltd 2012 tassc 87 2 see s29 1 act interpretation act 1931 file 53 20pe page 3 j 14 2020 b time elapsed since end period specified whether would reasonable expect application extend appeal could lodged date lodg ed c extent cost work undertaken accordance permit issued lupa expiry period matter tribunal considers appropriate 9 respect appellant expla nation failure lodge appeal within required period received notice within period 10 respect b period seven day lapse appeal period filing appeal appellant received notice 24 june 2020 filed appeal following day apparent tribunal time 24 june 2020 notice received appellant may could lodged appeal date appears acted reasonable expedition actually received notice 11 consideration c applies permit issued relate circumstance appeal event evidence extent r cost work undertaken relevant period 12 consideration catch respect matter tribunal considers appropriate ghimire v karriview management pty ltd3 colvin j identified number matter distilled authority court usually take account considering whether grant extension time file appeal number matter court usually take account considering whether grant extension time speaking broadly special circumstance need shown court must positively persuaded proper extension particular matter 1 adequate explanation delay ge nerally mere ignorance time limit satisfactory explanation delay party wanting appeal may expected investigate inquire procedure time limit bringing appeal 2 extent applicant taken step challenge dispute relevant decision intervening period considered 3 outcome confidently predicted leave stage seldom interest justice grant leave appeal little prospect success considerable additional cost impact litigant abided time limit waiting appeal heard however merit examined reasonably impress ionistic level court go merit great detail ass merit fairly rough ready way 4 court view strength claim may matter weighed matter fact claim might viewed time application extension strong weak relevant 5 prejudice respondent including prejudice occasioned defend proceeding material factor agains grant extension extent prejudice 3 2019 fca 1108 8 file 53 20pe page 4 j 14 2020 may vary depending upon financial circumstance respondent must considered care 6 consequence third party brought account particularly wide ranging effect might flow appeal allowed despite period delay 7 matter exhaustive rule rigidly applied also must kept mind court general discretion exercised reference particular circumstance case 13 appellant provided adequate explanation delay fact receive notice day appeal filed tribunal sufficient information issue position party respect substance appeal make prediction even rough ready reasonably impressionistic level prospect success appeal counc il seek heard merit council asserted special prejudice either financial otherwise indication effect third party 14 circumstance tribunal satisfied proper tha extension time granted 15 time filing notice appeal extended 25 june 2020 |
Cumaiyi v Northern Territory of Australia [2020] FCA 1299 (9 September 2020).txt | cumaiyi v northern territory australia 2020 fca 1299 9 september 2020 last updated 16 december 2020federal court australiacumaiyi v northern territory australia 2020 fca 1299file number ntd 36 2019judgment white jdate judgment 9 september 2020catchwords practice procedure application pursuant r 16 21 thefederal court rule 2011 cth certain part amended statement claim asc struck whether asc pleads matter going beyond permitted bys 46po 3 theaustralian human right commission act 1986 cth consideration ofs 46po 3 whether time period conduct alleged asc go beyond contained complaint australian human right commission held application upheld part legislation australian human right commission act 1986 cth s 3 1 46p 46pa 46pf 46ph 46pi 46pj 46pk 46po 46prfederal court australia act 1976 cth human right legislation amendment act 2017 cth human right legislation amendment act 1 1999 cth racial discrimination act 1975 cth s 9 13sex discrimination act 1984 cth 50federal court rule 2011 cth r 16 21human right legislation amendment bill 1998cases cited charles v fuji xerox australia pty ltd 2000 fca 1531 2000 105 fcr 573commonwealth v sex discrimination commissioner 1998 fca 1607 1998 90 fcr 179dye v commonwealth security ltd 2010 fca 720dye v commonwealth security limited 2 2010 fcafc 118grigor scott v jones 2008 fcafc 14 2008 168 fcr 450haile michael v konstantinidis 2 2012 fca 167haraksin v murray australia limited 2 2013 fca 217 2013 211 fcr 1hastwell v kott gunning 2017 fca 1557huang v university new south wale 2014 fca 1337king v jetstar airway pty ltd 2 2012 fca 8 2012 286 alr 149maghiar v state western australia 2002 fca 262simplot australia pty ltd v human right equal opportunity commission 1996 69 fcr 90stepien v department human service 2018 fca 1062travers v new south wale 2000 fca 1565yanunijarra aboriginal corporation rntbc v state western australia 2020 fcafc 64division general divisionregistry northern territorynational practice area administrative constitutional law human rightsnumber paragraph 117date hearing 21 august 2020counsel applicant mr pound mr j hartleysolicitor applicant levitt robinson solicitorscounsel respondent mr n christrup sc mr l peattiesolicitor respondent solicitor northern territoryordersntd 36 2019between patrick cumaiyifirst applicantmary e beridasecond applicantstephanie berida others named schedule third applicantand northern territory australiafirst respondenttop end health servicesecond respondentorder made white jdate order 9 september 2020the court order following plea amended statement claim struck subparagraphs b f l second list 28 b paragraph 52 67 c plea relevant period 1 applicant leave plead claim presently contained 52 61 claim relevant period manner accordance reason withs 46po 3 theaustralian human right commission act 1986 cth amended statement claim entitled third statement claim note entry order dealt inrule 39 32of thefederal court rule 2011 reason judgmentwhite jwadeye community 2 250 2 280 people remote location approximately 400 km southwest darwin 90 population indigenous prevalent indigenous language used wadeye murrinh patha spoken around 65 population language english language spoken home 7 7 wadeye population representative proceeding pursuant topt ivaof thefederal court australia act 1976 cth fca act commenced 28 october 2019 applicant claim amongst thing reason institutional discrimination contravention ofs 9 1 1a theracial discrimination act 1975 cth rd act first respondent territory failed provide sufficient adequate interpreting service connection specified activity wadeye breach 9 1 rd act failed provide adequate health service wadeye applicant allege second respondent top end health service tehs contravention 9 1 rd act failed obtain provide adequate interpreting service relation health service provides health clinic wadeye applicant also allege territory tehs contravened 9 1 rd act relation provision treatment first applicant tehs clinic 9 10 november 2016 9 may 2019 applicant lodged representative complaint complaint australian human right commission ahrc pursuant tos 46pof theaustralian human right commission act 1986 cth ahrc act applicant alleged racial discrimination contravention rd act nature content described detail shortly acting 46ph 1b ahrc act ahrc terminated complaint 29 august 2019 president delegate satisfied reasonable prospect matter settled conciliation applicant commenced present proceeding judgment concern application respondent pursuant r 16 21 thefederal court rule 2011 cth fcr certain part proceeding struck basis disclose reasonable cause action contend effect 46po 3 ahrc act applicant claim court confined matter subject complaint applicant amended statement claim asc contains plea go beyond matter accordingly beyond court jurisdiction reason follow uphold respondent application respect subject matter proceeding respect period conduct applicant impugn said occurred statutory schemesection 46p ahrc act allows written complaint lodged ahrc alleging act omission practice constituted unlawful discrimination 46p 1b complaint must set fully practicable detail alleged act omission practice complaint may leave president ahrc amended 46pa division 1 pt iib ahrc act provides manner president ahrc deal complaint president may decide inquire complaint inquire complaint attempt conciliate terminate complaint without inquiry 46pf president may require provision information ahrc relation complaint 46pi may hold private conference conciliate complaint s 46pj 46pk 46ph president may terminate complaint one eight ground since 12 april 2017 ground included president satisfaction complaint lodged six month alleged act omission practice took place sub 1 b however common ground present case period 12 month 46ph 1b b president must terminate complaint president satisfied relevantly reasonable prospect matter settled conciliation section 46ph 2 requires president terminating complaint notify complainant writing termination reason termination complaint terminated president exercise particular power affected person relation complaint may apply court federal circuit court fcc alleging unlawful discrimination one respondent terminated complaint 46po 1 application must made within 60 day date notice provided 46ph 2 within time court may allow section 46po 3a effect application may made three circumstance court grant leave complaint terminated 46ph 1 h president satisfied complaint involves matter public importance considered court fcc complaint terminated 46ph 1b b prospect resolution conciliation section 46po 3 respondent rely presently limit matter subject application court requiring using general expression close relationship conduct subject complaint ahrc provides unlawful discrimination alleged application must substance unlawful discrimination subject terminated complaint b must arise substantially act omission practice subject terminated complaint term unlawful discrimination appearing 46po 1 3 defined 3 1 ahrc act mean act omission practice unlawful various discrimination act including relevantly present purpose rd act word act also defined 3 1 46po 3 read together definition unlawful discrimination mean unlawful act omission practice alleged court proceeding relevant racial discrimination legislation must substance unlawful act omission practice case may alleged terminated complaint arise substantially act omission practice subject terminated complaint section 46pr provides application 46po court fcc bound technicality legal form matter approachsection 46po 3 considered several authority matter concerning approach application taken settled section 46po provide general statutory cause action available anyone may time affected unlawful discrimination available made complaint whose behalf complaint made see definition affected person 3 1 lie respect subject matter complaint ahrc grigor scott v jones 2008 fcafc 14 2008 168 fcr 450at 18 b legislative purpose define filter cause action created 46po correspond within limit contained sub 1 3 complaint terminated president ahrc dye v commonwealth security limited 2 2010 fcafc 118at 43 grigor scottat 19 c subsection 3 indicates unlawful discrimination alleged application court must either substance unlawful discrimination subject terminated complaintormust arise substantially act omission practice subject terminated complaint king v jetstar airway pty ltd 2 2012 fca 8 2012 286 alr 149at 25 charles v fuji xerox australia pty ltd 2000 fca 1531 2000 105 fcr 573at 39 mean terminated complaint cannot used launch application court fcc concerning conduct substantially wider beginning substantially earlier initially complained effect procedure provided ahrc act effectively bypassed travers v new south wale 2000 fca 1565at 8 understand reference lehane j intraversto conduct complainant initially complained reference conduct subject complaint ahrc including amendment complaint elaboration occurred complaint current ahrc reference complaint initiallylodgedwith ahrc limiting subject matter application court pursuant 46po 1 sub 3 necessarily limit exercise power court charles v fuji xeroxat 35 way 46po 3 indicates jurisdiction court fcc available allegation application travel substance beyond allegation made complaint ahrc stepien v department human service 2018 fca 1062at 13 e subsection prevent amendment put different legal complexion substantially act omission practice king v jetstar airwaysat 28 f gateway filter requirement 46po 3 viewed practical one duly technical approached manner pleading hastwell v kott gunning 2017 fca 1557at 26 inter relationship two limb 46po 3 considered incharles v fuji xeroxin katz j said 37 appears 46po 3 hreoca incidentally concerned allegation fact made application 46po 1 hreoca primarily concerned allegation rather legal character allegation fact claimed bear two situation deal permit applicant proceeding court claim fact alleged respondentconstitute unlawful discrimination different legal characterthan unlawful discrimination claimed relevant terminated complaint 38 paragraph 46po 3 hreoca proceeds basis allegation fact made proceeding courtare sameas made relevant terminated complaint provision naturally permit applicant claim proceeding fact bear legal character claimed complaint bear however go permitting applicant claim proceeding well fact bear different legal character claimed complaint bear provided however legal character claimed different substance legal character formerly claimed 39 paragraph b 46po 3 hreoca hand permit applicant allege proceeding courtdifferent factsfrom alleged relevant terminated complaint provided however fact alleged different substance fact formerly alleged permit applicant claim fact alleged bear different legal character fact alleged complaint claimed bear even legal character different substance legal character formerly claimed provided legal character arise fact alleged 40 appears first limb 46po 3 hreoca likely intended cover situation instance person make complaint commission act constituting unlawful disability discrimination employment complaint cannot conciliated terminated person make application court respect terminated complaint claiming instead basis allegation fact unlawful disability discrimination contract work see 17 dda 41 construction give sub 46po 3 hreoca apparent thatpar thereof provides warrant applicant proceeding court make allegation fact proceeding different made applicant earlier complaint commission hand par b thereof permit applicant proceeding court make allegation fact proceeding different certain extent made applicant earlier complaint commission emphasis added katz j understanding 46po 3 b supported extract explanatory memorandum thehuman right legislation amendment bill 1998 honour referred 40 explanatory memorandum stated 198 b second limb intended cover situation different instance unlawful discriminationarise essentially factual circumstance example asian woman may make complaint hreoc alleging dismissal employment amounted discrimination ground sex basis thing said done inquiry conciliation process woman may form view dismissal also amounted discrimination ground race complaint cannot conciliated terminated woman make application federal court respect terminated complaint paragraph may permit allege racial discrimination application emphasis added explanation katz j effect subparas b 46po 3 adopted several subsequent decision court dyeat 47 haraksin v murray australia limited 2 2013 fca 217 2013 211 fcr 1at 79 80 haile michael v konstantinidis 2 2012 fca 167at 17 huang v university new south wale 2014 fca 1337at 43 suggested applied present case mean understanding come within subpara 3 pleaded claim must least substance respect conduct subject complaint ahrc required identity must exist conduct alleged identity thekindof conduct alleged thekindof conduct complaint made insufficient act omission practice occurred materially different time position stated katzmann j indye v commonwealth security ltd 2010 fca 720at first instance 105 fall within 46po 3 enough act similar kind act complained terminated complaint sufficient act alleged act individual new incident different substantially conduct view 46po 3 disturbed appeal indye position otherwise proceeding court fcc could require consideration conduct subject assessment ahrc claim within subpara 3 b character discrimination alleged different arises substantially act omission practice complaint made ahrc case representative complaint like present account may taken fact articulation complaint may generalised case complaint concerning one two individual dyeat 43 nevertheless 46po 3 applies case individual representative complaint respect provision concerning complaint australian human right equal opportunity commission said complaint 50 thesex discrimination act 1984 cth equated criminal complaint information pleading civil legal proceeding commonwealth v sex discrimination commissioner 1998 fca 1607 1998 90 fcr 179at 188 see alsosimplot australia pty ltd v human right equal opportunity commission 1996 69 fcr 90at 94 however 46po 3 must read context since insertion 46p 1b ahrc act 2017 thehuman right legislation amendment act 2017 cth context includes requirement complaint ahrc set fully practicable detail alleged act omission practice likewise since insertion 46pa ahrc act thehuman right legislation amendment act 1 1999 cth context also includes prospect amendment complaint lodged ahrc accordingly care may required applying authority decided insertion s 46pa 46p 1b content complaint time termination rather time commencement critical matter dyeat 47 complaint ahrcthe applicant present proceeding eight person lodged representative complaint ahrc 9 may 2019 section 2in complaint indicated made four respondent territory commissioner police northern territory police force tehs commonwealth australia ahrc accept complaint commonwealth considered contained insufficient detail act practice alleged territory tehs respondent present action fair say primary focus complaint concerned aspect treatment first applicant mr patrick cumaiyi northern territory police tehs clinic 9 10 november 2016 much made apparent section complaint headed introduction first two paragraph stated 1 1 complaint unlawful discrimination lodged pursuant tosection 46p 2 b theaustralian human right commission act 1986 cth ahrc act person aggrieved unlawful racial discrimination occurredin relation event leading surrounding arising fromthe provision policing healthcare service mr cumaiyi particularised complaint also representative complaint lodged behalf class person pursuant 46pb 1 ahrc act class person defined indigenous resident wadeye ordinarily resident wadeye 9 november 2016 impacted discriminatory conduct respondent hereinafter described group member represented mr cumaiyi family together described complainant 1 2 patrick cumaiyi suffered serious injury assaulted officer police force northern territory wadeye airstrip 9 november 2016 family relative mr cumaiyi witnessed detrimentally psychologically emotionally affected saw heard experienced aftermath incident group member behalf complaint brought also impacted discriminatory conduct respondent alleged episode mr cumaiyi suffered serious injury 9 10 november 2016 occurredin course systemic discrimination suffered provision policing health service aggrieved particular episode allege common suffered discriminatory conduct based race interfered equal enjoyment fundamental human right particularised bold emphasis original italicised emphasis added introduction concluded following subparagraph 1 16 complainant contend mr cumaiyi treatment sic indicative treatment indigenous inhabitant wadeye respondent generally failure respondent ensure human right unjustly assaulted battered police b protest police abuse treated respectfully without threat intimidation c receive proper informed medical attention treatment result unlawful racial discrimination breached fundamental human right complaint lodged ahrc levitt robinson solicitor acting applicant present proceeding comprised 28 page content grouped following heading 1 introduction 1 1 1 16 2 respondent 2 1 2 11 3 circumstance surrounding assault mr cumaiyi 3 1 3 32 institutional discrimination complainant group member 4 1 4 12 discriminatory conduct 5 1 5 23 relief sought complainant 6 1 reason delay making complaint 7 1 7 8 reference already made section 1 2 brief summary remaining section follows section 3 circumstance surrounding assault mr cumaiyisection 3 complaint contained detailed particular event said occurred 9 10 november 2016 particular assault mr cumaiyi police injury said suffered treatment received section 4 institutional discrimination complainant group memberssection 4 made complaint provision number service wadeye following part summary complaint fundingthe complaint alleged funding chronic issue affecting wadeye territory repeatedly allocated funding provided commonwealth indigenous issue justified questionable claim 4 1 medical servicesthe complaint stated wadeye full timein situdoctor despite population 2 200 people increase dramatically wet season people surrounding area come stay town also alleged regularly trained murrinh patha larrakia kriol interpreter attendance medical consultation commonplace medical history taken accurately second hand account accepted patient commonly treated disrespectfully nursing staff 4 2 4 3 policing servicesthe complaint noted police service provided wadeye way suggested complainant regard inadequate instead complainant referred threatening intimidatory behaviour police officer 9 10 november 2016 relation mr patrick cumaiyi described involving use excessive force complaint also stated lack availability appropriate social worker meant intellectually disabled disadvantaged group member interviewed police officer without support person present right claim made respect illiterate emotionally psychologically challenged group member lacking formal education 4 4 4 6 legal servicesunder heading complainant made three complaint first concerned conduct court proceeding inside police station second stated insufficient translation interpretation service available third claim wadeye resident invariably denied access trial jury peer reason jury district northern territory located darwin alice spring 4 7 4 9 educational servicesthe complaint alleged wadeye educational service chronically funded said part responsible difficulty complainant group member faced interacting health authority police instructing lawyer understanding legal process 4 10 4 11 translation servicesthe complaint stated inadequate translation interpreting service available complainant group member multiple significant context including health medical policing legal context continued acceptable australian citizen forced see medical staff deal police officer participate court proceeding without afforded genuine opportunity understand engage proceeding 4 12 section 5 discriminatory conductsection 5 complaint commenced allegation unlawful racial discriminatory conduct treatment mr cumaiyi 9 november 2016 alleged 5 2 9 10 november 2016 episode indicative unlawfully discriminatory treatment complainant group member respondent broader failure respondent adequately ensure treated manner respect fundamental freedom human right respondent would done case comparably sized remote population non indigenous people paragraph 5 3 5 11 particularised breach 9 1 rd act alleged respect treatment mr cumaiyi 9 10 november 2016 reference relevant international convention asserted vicarious liability territory commissioner tehs respectively respect aspect conduct paragraph 5 12 5 13 made complaint general nature 5 12 respondent failed provide adequate service particularised referable distinction based race comparably sized remote community non indigenous resident would allowed suffer deprivation fundamental government service namely inadequate allocation gp service b inadequate translation service assist interacting medical health policing legal court service onsite translator medical staff staff cannot effectively communicate indigenous inhabitant english spoken small number younger member community c access trial jury peer complainant group member 5 13 respondent failed take adequate step redress prevent unlawful discrimination effect impairing complainant group member enjoyment right access health medical service policing translation interpreter legal service distinction based race comparably sized remote community comprised non indigenous resident would neglected extent followed particular way conduct constituted breach rd act particular directed conduct involving mr cumaiyi group generally paragraph 5 18 stated failure first fourth respondent provide adequate legal service including translation service wadeye constitutes conduct effect nullifying impairing enjoyment right complainant group member unable properly access translation service despite fact already disadvantaged reason lack formal education literacy alienation term capacity understand court proceeding despite fact respondent failed take adequate step rectify disadvantage complaint alleged breach 13 rd act section 6 relief sought complainantsthis section identified relief sought complainant included claim way compensation aggravated exemplary damage section 7 reason delay making complaintin section complaint provided explanation time making together submission president exercise discretion terminate reason subject matter occurred 12 month 9 may 2019 applicant pleaded claimsthe pleaded claim applicant respect incident involving mr patrick cumaiyi 9 10 november 2016 limited detailed complaint asc applicant make allegation assault police mr patrick cumaiyi subsequent conduct including court proceeding respect assault pleading concern mr patrick cumaiyi attendance clinic 6 pm 9 november 2016 injury suffered 6 10 november 2016 treatment injury clinic 10 november 2016 suggested difference act omission alleged meant pleaded claim satisfy 46po 3 balance allegation asc concern two principal subject matter adequacy interpreting service 21 51 health service provided wadeye 52 67 temporal element allegation pleaded relevant time relevant period paragraph 1 asc defines relevant time 9 10 november 2016 relevant period period 1 july 2014 29 august 2019 latter date appears selected date ahrc terminated complaint respondent applicationin submitting applicant pleaded claim went beyond scope permitted 46po 3 respondent focussed two aspect first period time claim related second concerned subject matter convenient address separately however consider submission concerning subject matter first assist understanding submission concerning time period subject matterthe respondent contend four allegation unlawful discrimination asc outside scope permitted 46po 3 allegation relating interpreting service extent relates context health service interaction police criminal court proceeding b tehs adopted practice relying bilingual staff others interpret relation health service made request murrinh patha interpreter aboriginal interpreting service ai small minority case c concerning provision health service wadeye extent go beyond complaint lack general practitioner resident wadeye required travel health service convenient address first second matter together interpreting servicesthe plea asc concerning alleged inadequacy interpreting service comprise 30 paragraph twenty two concern claim made territory eight concern claim made tehs pleadingin 24 26 applicant plead ai organisation northern territory providing interpreting service indigenous language ai jointly funded commonwealth territory commonwealth funding ai directed provision interpreting service connection legal policing service activity number non governmental organisation asc refers service kind commonwealth funded service 26 particular reference wadeye 27 asc pleads ai interpreting service provided relation legal service legal proceeding interview investigation conducted police interaction centrelink although asc contain express plea effect infer ai agency northern territory government 28 asc applicant allege one occasion relevant period group member required provision commonwealth funded service service commonwealth funded service form service identified service commonwealth funded service particularised including provision assistance applicant group member interaction police understanding police issued order bail condition police issued domestic violence order understanding criminal proceeding order criminal court engaging community correction respect child accused criminal offending legal guardian understanding significance requirement youth diversion underpt 3of theyouth justice act 2005 nt non commonwealth funded service particularised 28 including assistance diverse range interaction government legal system list follows accessing health service b understanding territory family officer visiting need respond c understanding legal proceeding relating child welfare application remove child custody accessing understanding information court registry tribunal regarding right remedy civil dispute e participating civil law proceeding capacity f registering birth death marriage g lodging complaint northern territory ombudsman northern territory independent commission corruption h understanding right obligation public housing tenant finding applying benefit grant j accessing information regarding activity government agency undertaking community understanding agency chosen take take action particular case k undertaking step required obtain driver licence adhering condition licence l understanding requirement starting maintaining business 29 asc applicant allege degree group member able receive effectively service related whether able access murrinh patha interpreter 30 asc applicant plead july 2014 commonwealth significantly reduced funding ai applicant claim territory pleaded 31 43 asc 31 plead decision made territory relevant period respect funding murrinh patha interpreting service resulted funding ai sufficient offset reduction commonwealth funding 32 applicant plead number staff casual interpreter trainer employed engaged ai reduced relevant period quality training provided murrinh patha interpreter access applicant group member murrinh patha interpreter connection service required nullified impaired 33 applicant allege conduct later pleaded constituting unlawful discrimination relevant period territory failed provide sufficient adequate interpreting service required provision service applicant group member characterise failure provision interpreting service 35 36 applicant allege failure provision interpreting service act discrimination within meaning 9 1 rd act paragraph 37 40 contain corresponding allegation contravention 9 1a rd act respondent contend pleaded failure provision interpreting service much broader made complaint concerning interpreting service submit confined interpreting service relation access health service interaction police criminal court proceeding applicant allegation tehs relation interpreting service contained 44 51 asc plead first tehs employ murrinh patha interpreter wadeye health clinic 44 next plead prior relevant period despite request made ai murrinh patha interpreter assist provision service patient clinic many occasion interpreter provided 45 applicant particularise claim setting number request ai murrinh patha interpreter year 2010 2019 inclusive number request made tehs number cancelled either interpreter available interpreter presented clinic applicant plead 46 second respondent practice rely bilingual staff person interpret required regard provision health service applicant group member b regularly make request murrinh patha interpreter ai regard provision health service applicant group member small minority case practice applicant allege 47 51 practice constituted unlawful discrimination tehs respondent contend allegation go beyond matter complaint concerning provision interpreting service tehs particular submit complaint identified defined practice let alone make complaint term complaint concerning interpreter servicesin section 4 complaint raised allegation institutional discrimination applicant alleged medical service 4 3 regularly trained murrinpatha larrakia kriol interpreter attendance atmedical consultation medical historiesare frequently taken accurately indigenous patient second hand account accepted preference bytriage stafffrom white interlocutor police andpatientsare commonly treated disrespectfully nursing staff policing service 4 4 despite lack funding formedicalpersonnel interpreter funding provided employment least 14 police officer 28 million police station legal service 4 8 insufficient translation interpretation service available allow indigenous inhabitant wadeye fully understand thereby engage withlegal process translation service 4 12 inadequate translation interpreting service available complainant group membersin multiple significant context including health medical policing legal context acceptable australian citizen forcedto see medical staff deal police officer participate court proceedingswithout afforded genuine opportunity understand engage withthose proceeding footnote omitted emphasis added section 5 heading discriminatory conduct complaint stated 5 12 respondent failed provide adequate service particularised referable distinction based race comparably sized remote community non indigenous resident would allowed suffer deprivation fundamental government service namely b inadequate translation service assist interacting withmedical health policing legal court service onsite translator formedical staffsuch staff cannot effectively communicate indigenous inhabitant english spoken small number younger member community c 5 13 respondent failed take adequate step redress prevent lawful discrimination effect impairing complainant group member enjoyment right accesshealth medical service policing translation interpreter andlegal servicesbecause distinction based race 5 18 failure first fourth respondent provide adequatelegal service including translation servicesat wadeye constitutes conduct effect nullifying impairing enjoyment right equal court tribunal complainant group member unable properly access translation service despite fact already disadvantaged reason lack formal education literacy alienation term capacity understandcourt proceeding emphasis added applicant contend extract complaint pertinent presently respect provision interpreter service respondent submissionthe extracted passage indicate respondent contend subject complaint respect interpreter service confined provision service connection health service interaction police criminal court proceeding basis contend provision interpretation service relation following commonwealth funded service subject complaint c accessing right victim crime including victim domestic violence g engaging community correction part sentence parole requirement h respect child accused criminal offending legal guardian understanding significance requirement youth diversion underpart 3of theyouth justice act 2005 nt next respondent submit one pleaded list circumstance interpreter service required relation non commonwealth funded service subject complaint subpara accessing health service hence respondent submit applicant pleaded case travel beyond complaint applicant submissionthe applicant resisted challenge respondent submitting respondent submission based narrow technical reading complaint treating though pleading b submission overlooked flexibility inherent 46po 3 nature complaint representative c complaint raised allegation inadequate interpreting service wadeye result longstanding funding circumstance particular context funding impaired right applicant group member highlighted could fairly construed exhaustive subset circumstance provision interpreting service inadequate stated 4 12 complaint example nothing extract expressly limited interpreting service category e extent allegation concerned context specifically mentioned complaint readily seen substance lawful discrimination expressly subject complaint f reference legal process 4 8 legal context 4 12 legal court service 5 12 confined criminal court proceeding understood reasonably encompassed provision legal service wide variety context considerationit remembered purpose 46po 3 unlawful discrimination constituted act omission practice defined kind view read fairly matter complaint referred provision interpreter service connection provision health service interaction police engagement court proceeding alleged provision interpreter service purpose inadequate act omission practice complaint made complaint allege failure generally territory provide adequate interpreter service wadeye subject asc however see reason construe narrowly concept interaction police court proceeding complaint referred may well principal focus complaint criminal proceeding reference legal process court proceeding sufficiently broad encompass form court proceeding therefore regard complaint encompassing matter referred c g h commonwealth funded service set earlier matter sufficiently close relationship subject matter interaction police court proceeding reason also regard subject matter c e non commonwealth funded service encompassed complaint however consider exception subpara accessing health service remaining activity listed complaint concerning non commonwealth funded service fair reading reasonably regarded subject complaint looked class matter subparagraphs concern interaction government generally cannot reasonably regarded encompassed expression legal process legal context legal court service applicant submitted expression take colour complaint read whole including particular content complaint heading legal service reference applicant complaint 4 12 multiple significant context including health medical policing legal context cannot reasonably regarded complaint inadequate provision interpreter service whatever context applicant later chose nominate 46po 3 allow extended range activity subject present proceeding approaching question manner set earlier reason consider answer must negative act omission practice constituting denial failure provide interpreting service connection activity say registering birth death marriage subpara f self evidently substance act omission constituting unlawful discrimination relation accessing health service participating justice system occasion impugned conduct occurred different time place circumstance accordingly claim fall within 46po 3 said act omission practice constituting alleged discrimination relation non commonwealth funded service arose substantially act omission practice subject terminated complaint come within 46po 3 b using example registering birth death marriage cannot reasonably said act omission arises act omission practice concerning participation applicant group member justice system matter characterising differently conduct substantially conduct subject complaint relation claim tehs consider plea 46 asc encompassed fair understanding 4 3 4 12 5 12 b 5 13 complaint true complaint refer expressly use bilingual staff person interpret seem implicit also consider plea 46 b reasonably regarded encompassed complaint seems integer unlawful discrimination pleaded 46 summary relation first contention respondent concerning subject matter uphold respect plea concerning non commonwealth funded service subparas b f l inclusive 28 asc provision health service wadeyethe respondent contend complaint concerning provision health service wadeye confined complaint concerning number general practitioner provided contend asc go beyond subject matter pleading wadeye inferior health service generally putting one side part content complaint concern treatment mr cumaiyi 9 10 november 2016 complaint regarding provision interpreter medical consultation relevant portion complaint follows medical service 4 2 wadeye full timein situdoctor despite population 2 200 people increase dramatically wet season people surrounding area come stay town data compiled australian bureau statistic 2013 indicates theper capitaratio gps population remote area australia 113 per 100 000 suggests wadeye 2016 2 280 people would ordinarily 2 58 gps although 2 gps allocated clinic work contemporaneously continuously full time basis 5 12 respondent failed provide adequate service particularised referrable distinction based race comparably sized remote community non indigenous resident would allowed suffer deprivation fundamental government service namely inadequate allocation gp service 5 21 set group member also received proper adequate policing medical service contend would received indigenous noted earlier 5 13 applicant allege respondent failed take adequate step redress prevent unlawful discrimination effect impairing right group member access health medical service 60 61 asc applicant plead territory underserviced group member wadeye regard health service compared provision health service resident town nhulunbuy tennant creek plead 53 wadeye hospital private medical clinic government funded clinic permanent site doctor effective hour ambulance service 54 56 plead health service available nhulunbuy tennant creek said comparable population include public hospital providing range medical service well medical clinic applicant contend pleading within bound complaint essence complaint alleged institutional discrimination context provision medical service includingin relation general practitioner comparison would position complainant indigenous accept submission opinion issue concerning adequacy interpreter service medical consultation treatment mr cumaiyi 9 10 november 2016 put one side readily apparent subject matter complaint respect health service concerned inadequate provision gps also plain general plea concerning health service asc travel beyond complaint matter conform 46po 3 content 4 2 5 12 complaint make evident accordingly plea 52 61 asc struck however grant leave applicant plead claim respect adequacy health service provided wadeye confined manner required 46po 3 travel health service requirementin 62 67 applicant allege territory discriminated requiring group member travel location access health service available wadeye plain complaint contain claim effect paragraph asc struck conclusion respondent submission concerning subject matter actionin summary reason given uphold respondent submission respect pleading non commonwealth funded service subparas b f l inclusive 28 respect 52 67 asc grant leave applicant plead claim concerning adequacy health service presently contained 52 61 asc manner accord reason compliant 46po 3 ahrc act time periodthe respondent contend whereas allegation asc concern relevant period period 1 july 2014 29 august 2019 focus allegation complaint lodged ahrc event occurred 9 10 november 2016 submit addition particularisation complaint indicating period 1 july 2014 9 november 2016 material effect contend applicant confined present proceeding allegation contravening conduct period 9 november 2016 29 august 2019 period 1 july 2014 9 november 2016 constitutes 50 total period 1 july 2014 28 august 2019 respondent contend extension period proceeding court undermines scheme contemplated pt iib ahrc act ahrc opportunity consider additional complaint deal manner contemplated part respondent emphasise unlawful discrimination alleged 1 1 1 2 complaint said occurred relation event leading surrounding arising provision policing health care service mr cumaiyi also emphasise class person respect complaint made defined indigenous resident wadeye ordinarily resident wadeye 9 november 2016 impacted discriminatory conduct respondent hereinafter described represented mr cumaiyi family understood submission definition added impression complaint made respect conduct 9 november 2016 respondent referred indicia complaint allegation made respect whole relevant period include complainant referred australian bureau statistic data 2013 concerning per caput ratio general practitioner population remote area australia complaint referred position 2016 respondent also note putting allegation concerning conduct towards mr cumaiyi 9 10 november 2016 one side great majority allegation complaint concerning institutional discrimination alleged expressed present tense wadeyehasno full timein situdoctor hereare notregularly trained interpreter attendance medical consultation thereareinsufficient translation interpretation service available thereareinadequate translation interpreting service available numerous example could given respondent sought support understanding complaint noting medium report reference made complaint way support allegation institutional discrimination funding policing provision legal service comprised report made 2017 2019 section 46po 3 contain express stipulation time period however limitation reference time perhaps occasion implicit notion unlawful discrimination already noted unlawful discrimination comprises act omission practice say actual act actual omission actual practice occurred case omission occur particular time particular period particular occasion enquiry presently therefore ascertain time period occasion act omission practice alleged complaint said occurred assessment made usual manner court construe document namely objective appraisal complaint requires consideration complaint taken conveyed considered objectively president ahrc person directed opinion reasonable person making objective assessment would take account complaint prepared lawyer structured provide considerable particularity allegation made consider respondent correct submitting pertinent complaint gave indication concerned event far back 1 july 2014 solicitor intention would easy natural said indication complaint counsel applicant relied indicating unlawful discrimination referred confined act omission practice occurring commencing 9 november 2016 statement 1 2 episode mr cumaiyi suffered serious injury 9 10 november 2016 occurred course systemic discrimination b claim 1 16 mr cumaiyi treatment indicative treatment indigenous inhabitant wadeye respondent generally c allegation 4 10 wadeye educational service chronically funded subject previous complaint chronic lack committed funding part responsible difficulty complainant group member faced assertion 5 2 episode involving mr cumaiyi 9 10 november 2016 indicative unlawfully discriminatory treatment complainant group member respondent broader failure respondent adequately ensure sic treated manner respect fundamental freedom human right e assertion 5 4 conduct 9 10 november 2016 indicative general pattern discriminatory conduct ongoing time f claim 7 2 respect conduct alleged 9 10 november 2016 general conduct ongoing time continuing counsel also submitted complaint respect several subject matter limited time period clear applicant intending complaint assert unlawful discrimination 9 november 2016 although accept possibly implicit assertion event involving mr cumaiyi 9 10 november 2016 occurred course systemic conduct indicative general conduct however also plausible understand complaint focussing treatment mr cumaiyi 9 10 november 2016 reference counsel relied serving indicate unlawful conduct occurred isolated entrenched kind conduct occurring time reference systemic conduct general conduct made way characterising conduct said occurred 9 10 november 2016 rather comprising complaint conduct occurring time balance think better view complaint accept use present tense complaint provides support respondent submission regard slight uncommon person describing continuing state affair using present tense even though necessarily encompasses part period already occurred regard applicant reliance complaint medium report made 2017 2019 matter significant presently commonplace medium report matter occurred past well contemporaneous matter date medium report made may say little time conduct described report occurred applicant submitted approach respondent complaint particular reference use present tense complaint unduly technical therefore consistent 46pr noted earlier 46pr provides proceeding division court bound technicality legal form consider 46pr assistance presently issue concern court jurisdiction court must still respect substantive direction given 46po 3 ascertain matter respect jurisdiction invoked maghiar v state western australia 2002 fca 262at 18 dyeat 48 see alsoyanunijarra aboriginal corporation rntbc v state western australia 2020 fcafc 64at 104 105 however putting last three matter one side consider fair conclude respondent contend allegation complaint concerning institutional discrimination alleged seem describing contemporaneous circumstance wadeye circumstance period commencing 1 july 2014 general tenor complaint particularly consider president ahrc would understood complaint referring act omission practice said occurring far back 1 july 2014 impression strengthened counsel explanation applicant selection date 1 july 2014 commencement date relevant period counsel explained selected avoid pleading claim would time barred reason limitation action legislation coincidence financial year funding various service provided proposition implicit explanation time bar funding cycle consideration would open applicant wished selected still earlier commencement date counsel submission however indicate basis upon accordance 46po 3 b act omission practice occurring within whole period commencing 1 july 2014 could regarded encompassed complaint particular counsel unable explainby reference complaintwhy alternative period period conveyed say period commencing 1 july 2015 1 july 2016 matter putting aside issue time bar commencing date five ten year earlier fact applicant thought possible select discretion commencing date period unlawful conduct alleged linked content complaint suggests pleaded case travel beyond complaint ultimately matter determined application 46po 3 according term explained katz j incharles v fuji xeroxand subsequent decision outlined also determined basis complaint required 46p 1b set fully practicable detail alleged act omission practice made specific complaint concerning period 9 november 2016 view factual allegation conduct occurring period 1 july 2014 9 november 2016 cannot reasonably regarded substance unlawful discrimination subject terminated complaint fact act omission practice occurred different time must case sufficient indicate similar reason act omission practice occurring throughout period 1 july 2014 9 november 2016 cannot said arise substantially act subject terminated complaint understanding consistent statement lehane j intraversat 8 quoted earlier allegation discrimination covering course conduct substantially wider beginning substantially earlier initially complained emphasis added permissible two matter support understanding period conduct complaint referred first consistent applicant view indicated term originating application filed 28 october 2019 indicated claimant alleging unlawful discrimination occurred 9 10 november 2016 9 november 2016 9 may 2019 amended originating application filed five month later 8 april 2020 applicant alleged discriminatory conduct commencing 1 july 2014 applicant change position would immaterial pleading otherwise consistent 46po 3 applicant understanding content complaint support construction think appropriate second affidavit applicant solicitor filed 28 october 2019 accompanied originating application sought support contained reference unlawful discrimination period commencing 1 july 2014 immaterial affidavit made solicitor lodged complaint ahrc accordingly hold 46po 3 precludes applicant alleging proceeding conduct said unlawful occurred 9 november 2016 plea relevant period therefore struck leave plead accordance reason course preclude applicant leading evidence trial matter occurred 9 november 2016 support conduct allege occurred date conclusionfor reason stated following plea asc struck subparagraphs b f l second list 28 b paragraph 52 61 c paragraph 62 67 plea relevant period 1 applicant leave plead claim presently contained 52 61 claim relevant period manner accordance reason 46po 3 ahrc act amended statement claim entitled third statement claim hear party respect cost respect consequential matter certify preceding one hundred seventeen 117 numbered paragraph true copy reason judgment honourable justice white associate dated 9 september 2020schedule partiesntd 36 2019applicantsfourth applicant freddy cumaiyififth applicant cassimir dullasixth applicant assumpta gumbaduckseventh applicant elizabeth gumbaduckeighth applicant gloria parmbuck |
Customs (Prohibited Imports) Amendment Regulations 2003 (No. 8) 2003 No. 253.txt | custom prohibited import amendment regulation 2003 8 2003 253customs prohibited import amendment regulation 2003 8 2003 253explanatory statementstatutory rule 2003 253issued authority minister justice customscustoms act 1901customs prohibited import amendment regulation 2003 8 subsection 270 1 thecustoms act 1901 act provides governor general may make regulation inconsistent act prescribing matter act required permitted prescribed may necessary convenient prescribed giving effect act conduct business relating custom purpose proposed regulation facilitate importation certain good owned defence force foreign country invited participate defence sanctioned activity hosted australian defence force department defence combat marksmanship competition defence training exercise section 50 act provides part governor general may regulation prohibit importation good australia power may exercised prohibiting importation good absolutely prohibiting importation good unless specified condition restriction complied thecustoms prohibited import regulation 1956 principal regulation control importation various good principal regulation either prohibit importation specified good absolutely make importation subject permission minister authorised person part 1 schedule 6 principal regulation prescribes range test importation firearm firearm accessory may measured determine whether importation may permitted australian army intends hosting international combat marksmanship competition november 2003 aimed improve skill personnel use small arm number foreign defence force invited presently none importation test contained principal regulation specifically provide participation foreign defence force type activity resolve impediment faced foreign defence force proposed regulation would insert additional specified purpose test part 1 schedule 6 principal regulation specified purpose test contains list defined circumstance importation firearm firearm part firearm accessory firearm magazine ammunition proposed regulation would allow foreign defence force invited participate defence sanctioned activity import article purpose activity provided article owned defence force imported either defence force member defence force article issued proposed regulation would define defence sanctioned activity activity approved service chief australian defence force deputy secretary department defence ensure article imported exported defence sanctioned activity proposed regulation would also operate ensure foreign defence force seek minister defence person authorised statement export licence permission granted regulation 13e thecustoms prohibited export regulation 1958 export permission already obtained time seeking import permission detail proposed amendment set attachment act specifies condition need met power make proposed regulation may exercised proposed amendment regulation would commence gazettal statutory rule draft attachmentcustoms prohibited import amendment regulation 2003 8 regulation 1 name regulationsregulation 1 provides regulation named thecustoms prohibited import amendment regulation 2003 8 regulation 2 commencementregulation 2 provides regulation commence gazettal regulation 3 amendment custom prohibited import regulation 1956regulation 3 provides thecustoms prohibited import regulation 1956to amended set schedule 1 schedule 1 amendmentsitem 1 schedule 6 part 1 subparagraph 2 2 e ii item 1 omits word article insert word article purpose adding another clause specified purpose test item 2 schedule 6 part 1 paragraph 2 2 e item 2 insert new purpose specified purpose test firearm article imported provided circumstance listed satisfied new purpose prescribes foreign defence force seeking participate defence sanctioned activity may import article purpose activity provided article owned defence force imported either defence force member defence force article issued foreign defence force invited participate defence sanctioned activity considered import permission ensure article imported exported close defence sanctioned activity new purpose also requires foreign defence force seek minister defence person authorised statement export licence permission granted regulation 13e thecustoms prohibited export regulation 1958 export permission already obtained time seeking import permission item 3 schedule 6 part 4 item 7item 3 insert definition defence sanctioned activity definition part schedule 6 defence sanctioned activity defined mean activity approved service chief australian defence force deputy secretary department defence |
R v Yanner [1997] QCA 416 (21 November 1997).txt | r v yanner 1997 qca 416 21 november 1997 last updated 22 march 1999in court appealsupreme court queenslandc 324 1997 brisbanebefore pincus j de jersey j muir j r v yanner h e q u e e nv murrandoo bulanyi mungabayi yannerappellantjudgment delivered 21 november 1997separate reason judgment member court concurring order made appeal conviction dismissed catchword criminal law appeal conviction unlawful assembly application change venue refused whether error principle exercise judicial discretion whether would miscarriage justice purpose 668 1 criminal code counsel mr vasta q c appellant mr c chowdhury respondent solicitor legal aid queensland appellant director public prosecution queensland respondent hearing date 3 november 1997reasons judgment pincus j judgment delivered 21 november 1997the appellant convicted trial district court mt isa offence unlawful assembly defined 61 thecriminal code appeal brought conviction number ground one pressed first learned judge erred allowing change venue application made appellant personally inception trial venue changed ground local prejudice appellant refused appeal refusal application change venue conviction 668e 1 code appeal conviction court shall allow appeal opinion ground whatsoever miscarriage justice incallaghan 1966 vicrp 4 1966 v r 17 one ground leave appeal conviction sought judge wrongly refused application separate trial following authority reduced question whether miscarriage justice 21 indietrich 1992 hca 57 1992 177 c l r 292 issue raised whether trial judge proceeded trial put ground dietrich legally represented conviction quashed mason cj mchugh j explained question court merely whether adjournment granted whether applicant conviction set aside ground wrong decision question law ground miscarriage justice provided conviction stand substantial miscarriage justice actually occurred 312 313 quotation 568 thecrimes act1958 |
Challenger Listed Investments Limited v Valuer General [2015] NSWLEC 1294 (3 August 2015).txt | challenger listed investment limited v valuer general 2015 nswlec 1294 3 august 2015 challenger listed investment limited v valuer general 2015 nswlec 1294 3 august 2015 last updated 3 august 2015land environment courtnew south walescase name challenger listed investment limited v valuer generalmedium neutral citation 2015 nswlec 1294hearing date conciliation conference 26 june 2015date order 3 august 2015decision date 3 august 2015jurisdiction class 1before maston acdecision see 4 belowcatchwords development application conciliation conference agreement party orderslegislation cited environmental planning assessment act 1979land environment court act 1979category principal judgmentparties challenger listed investment limited applicant valuer general respondent representation counsel dr n brunton solicitor applicant m stephanie mulvey applicant mr j robson sc respondent solicitor henry davis york applicant crown solicitor office respondent file number 30752 2014judgmentcommissioner matter conciliation conference agreement unders 34 3 theland environment court act 1979 court act reached party term decision proceeding acceptable party presiding commissioner satisfied decision one court could made proper exercise function test applied 34 3 court act consequence 34 3 act required dispose proceeding accordance decision court act also required set writing term decision 34 3 b order made give effect agreement constitute document making order give effect agreement party required made merit assessment issue originally dispute party final order give effect party agreement made date recorded order copy order including annexures referred order accessed link appearing date order appears first page order acting commissioner maston30752 2014 maston s34 43 5 kb doc |
National Tertiary Education Industry Union v Griffith University [2019] FWC 3488 (24 September 2019).txt | national tertiary education industry union v griffith university 2019 fwc 3488 24 september 2019 last updated 24 september 2019 2019 fwc 3488fair work commissiondecisionfair work act 2009s 739 application deal disputenational tertiary education industry unionvgriffith university c2019 1936 commissioner boothbrisbane 24 september 2019alleged dispute matter arising enterprise agreement interpretation disciplinary clause intellectual academic freedom clause 1 decision follows application made unders 739of thefair work act 2009 act behalf dr campbell fraser national tertiary education industry union nteu applicant dr fraser senior lecturer griffith university employer party bound thegriffith university academic staff enterprise agreement 2017 2021 agreement 2 dr fraser hold full time academic position within department international business asian study part griffith business school dr fraser research expertise includes issue around human organ trafficking 2014 dr fraser received university approval project entitled study effectiveness declaration istanbul combating human organ trafficking 2008 2014 project dispute least part whether dr fraser interview conduct consistent ethical research approval 3 nteu asserts university investigating allegation breached number clause agreement university denies breach agreement 4 party also dispute whether university complied obligation theintellectual academic freedomclause agreement dispute2016 university raise issue concern 5 nteu say dispute employer investigation beginning august 2016 allegation dr fraser conduct first raised asserts going investigation since august 2016 employer complied requirement agreement regarding investigation 6 dr fraser particularly complained time provided copy written notice concern dr fraser view complaint arose meeting falun dafa known also falun gong member dr fraser 7 university acknowledges concern raised august 2016 form part formal investigation outcome enquiry concern raised university time dr fraser case answer additionally day advised case answer dr fraser ethic approval project extended two year 8 dr fraser submitted throughout time kept university cognisant activity 9 13 july 2017 dr fraser notified professor david grant pro vice chancellor business employer 1 employer received formal complaint unnamed member public relation dr fraser conduct january 2016 undertaking research professor grant invited dr fraser provide response dr fraser day dr fraser replied forwarding response exactly complaint made year ago person 2 10 21 august 2017 professor grant wrote applicant finding claim unsubstantiated notwithstanding finding professor grant sought meeting dr fraser 11 january 2018 professor grant wrote relation dr fraser representation griffith university academic public domain noting university ongoing concern letter point agreement dr fraser would restrict commentary area expertise comment falun gong public declaration concerning falun gong done private citizen 3 preliminary investigation apparent breach australian code responsible conduct research 12 1 may 2018 dr fraser received email professor andrea bishop director office research stating dr fraser engaged research interview period time appeared outside ethical research approval area human organ trafficking letter stated original enquiry incomplete new concern dr fraser research conduct required matter reopened 13 professor bishop also advised dr fraser preliminary investigation alleged breach theaustralian code responsible conduct research code commenced 14 26 june 2018 dr fraser informed panel established investigate conduct would meeting 6 august 2018 15 dr fraser became ill july 2018 remained leave february 2019 panel reconvened dr fraser returned leave 16 nteu also became involved matter behalf dr fraser early june 2018 began corresponding employer regarding research misconduct inquiry panel 17 nteu advised 5 march 2019 employer intended reconvene panel 28 march 2019 prompted nteu file dispute application dr fraser behalf seek interim order staying reconvening panel 18 interim order sought nteu 11 april 2019 order issued term sought nteu following hearing among thing ordered employer delay convening institutional research misconduct inquiry respect dr fraser decision issued regarding substantive dispute application 19 matter subject discussion view resolving dispute discussion resolve dispute nteu sought matter arbitrated 20 m noeline rudland appeared nteu hearing m bianca rance australian higher education industrial association mr ashton welch griffith university appeared employer commission jurisdiction deal dispute 21 section 739 act provides commission cannot dealing dispute term enterprise agreement legislation 22 section 739 provides follows 739 dispute dealt fwc 1 section applies term referred section 738 requires allows fwc deal dispute 2 fwc must deal dispute extent dispute whether employer reasonable business ground subsection 65 5 76 4 unless party agreed contract employment enterprise agreement written agreement fwc dealing matter b determination thepublic service act 1999authorises fwc deal matter note prevent fwc dealing dispute relating term enterprise agreement substantially effect assubsection 65 5 76 4 see alsosubsection 55 5 3 dealing dispute fwc must exercise power limited term 4 accordance term party agreed fwc may arbitrate however described dispute fwc may note fwc may also deal dispute mediation conciliation making recommendation expressing opinion see subsection 595 2 5 despite subsection 4 fwc must make decision inconsistent act fair work instrument applies party 6 fwc may deal dispute application party dispute 23 section 595 act detail commission power deal dispute section 595 subsection 1 provides commission may deal dispute expressly authorised act purpose 595 1 739 1 expressly authorises commission deal dispute 4 term enterprise agreement 24 clause 15 agreement thedisputes avoidance settlement procedure clause attached appendix 25 nteu submits relevant clause agreement clause 10 particularly 10 2 11 misconduct 10 2 15 procedural fairness 10 2 16 serious misconduct andclause 40 dealing misconduct serious misconduct andclause 47 intellectual academic freedom agreement clause attached appendix b 26 nteu submits employer failed comply clause 10 40 47 27 employer submits process investigating complaint accordance agreement submission applicant 28 applicant submits employer complied clause 40 47 agreement investigation anonymous complaint received dr fraser 29 applicant submits dispute first arose thegriffith university academic staff enterprise agreement 2012 2016 previous agreement superseded 25 september 2018 difference two agreement relation provision dealing allegation research misconduct 30 previous agreement required allegation misconduct serious misconduct dealt accordance provision clause 40 previous agreement serious misconduct included research misconduct accordance clause 4 2 12 31 applicant submits investigation alleged research misconduct conducted three separate investigation period 16 august 2016 24 september 2018 32 applicant say investigation conducted contrary clause 40 previous agreement investigation spanned period 2 year 15 day stipulated previous agreement union consulted time regarding appointment investigator 3 investigation covered set fact time section previous agreement provided three different investigative process set fact andrelevant information document withheld dr fraser throughout investigation 33 applicant submits current agreement also requires allegation misconduct serious misconduct dealt accordance provision clause 40 clause 40 requires procedural fairness afforded time employee allegation misconduct serious misconduct made 34 like previous agreement research misconduct included within definition serious misconduct clause 10 35 applicant submits employer provide procedural fairness dr fraser investigation process provide written complaint 36 applicant directed commission attention clause 40 1 2 provides assertion serious misconduct made director hr consider whether assertion warrant formal action procedure clause 40 director hr may conduct initiate preliminary investigation within reasonable timeframe appointment investigator 37 applicant submits employer failed act required clause therefore breach obligation agreement 38 breach clause 40 alleged occurred employer failed maintain confidentiality applicant refers variously correspondence made public falun dafa association australia journalist news limited relation university inquiry dr fraser 39 applicant also submits dr fraser intellectual academic freedom protected clause 47 agreement breached university 40 applicant refers toamieu v golden cockerel pty ltd 5 andamwu v berri pty ltd 6 regarding principle interpretation enterprise agreement applicant submits thatgolden cockerelestablishes correct approach resolving ambiguity whileberriexplains fundamental issue identify common intention nature agreement impact upon common intention 41 applicant submits clause 40 agreement requires assertion allegation misconduct serious misconduct dealt accordance clause 40 employer policy procedure agreement take precedence policy procedure employer 42 applicant view agreement specific process required assertion allegation made clause 40 make clear procedural fairness afforded time including investigation allegation misconduct serious misconduct raised 43 applicant say dr fraser afforded procedural fairness informed case prior decision made provided material used decision making process referring clause 10 2 15 1 dr fraser provided written complaint made particular complaint prior 25 september 2018 previous agreement superseded 44 applicant refutes submission employer dr fraser informed complaint applicant say review communication filed commission show informed witness evidence dr campbell fraser 45 dr fraser provided witness statement proceeding 7 required cross examination 46 evidence 2002 diagnosed chronic end stage renal failure papillary renal cell carcinoma state received kidney transplant september 2003 subsequent transplant became aware issue surrounding shortage organ available transplant australia including selling organ black market country including pakistan india china philippine 8 due interest issue evidence received invitation speak recipient transplant event throughout world lead developing partnership human trafficking academic private citizen capacity 9 47 dr fraser give evidence developed reputation area transplantation organ donation activism hence sought develop research profile 48 dr fraser evidence 2014 received ethical clearance teaching research publication relate organ harvesting trafficking state transparent open employer work area email correspondence support applying obtaining ethical clearance including correspondence professor jayne clapton chair employer ethic committee 10 49 dr fraser state met professor wendy rogers academic macquarie university november 2015 expressed desire work co researcher named ethical clearance 11 evidence professor rogers told group regularly met parliament house sydney attendee would falun gong practitioner evidence professor rogers discussed possibility addressing meeting talk research 12 50 dr fraser give evidence subsequent discussion received invitation speak event new south wale parliament house january 2016 intended meet individual exploratory discussion state wasnotto data collection exercise 13 51 dr fraser state received email mr rick williams manager research ethic integrity office research university august 2016 provided follows dr fraser griffith university nominated contact concern complaint related ethical conduct research received written notice concern regard ethical conduct research approved human ethic protocol study effectiveness declaration istanbul combatting human organ trafficking 2008 2014 notice concern provides supporting information indicating people recruited participant interviewed comment form part research data collection protocol 52 dr fraser evidence never provided copy notice concern 14 53 evidence advised mr williams month satisfied case answer advised ethic approval extended two year 54 dr fraser maintains document requested provided kept academic supervisor dean informed activity state supported encouraged employer research work including instance publicity 55 however evidence july 2017 received email professor grant regarding complaint received member public dr fraser state provided response information professor grant professor subsequently stated found claim made complainant unsubstantiated 15 56 november 2017 agreement reached professor grant dr fraser dr fraser would remove medium link publication biographic data public griffith profile griffith expert page 16 dr fraser give evidence received letter professor grant january 2018 alleging finding engaged activity contrary agreement reached november 2017 57 dr fraser evidence may 2018 number correspondence exchanged dr fraser professor bishop including letter professor pankhurst pankhurst letter 58 copy professor pankhurst letter annexed dr fraser statement outline following professor pankhurst request professor bishop conducted preliminary investigation apparent breach code letter indicated potential breach related interview conducted january 2016 lack clarity regarding whether misrepresentation occurred order obtain access vulnerable group andconduct research interview related research activity extended period time allegedly without appropriate ethical approval place 59 letter acknowledged dr fraser response 60 professor pankhurst concluded letter basis preliminary investigation appears aprima facie case research misconduct establishing panel conduct internal institutional research misconduct inquiry 17 emphasis added 61 dr fraser evidence june 2018 18 asked give evidence parliamentary inquiry human trafficking canberra inquiry representative falun gong gave evidence claimed support university referenced table letter received professor pankhurst sdvc b investigation university c gave detailed information meeting attended january 2016 made substantial accusation regarding work perform world health organisation pontifical academy science 19 62 dr fraser advised panel established meet 6 august 2018 dr fraser became ill return process recommenced 63 submission commission m rudland noted griffith university website currently list numerous publication dr fraser dealing various aspect human organ trafficking contains published article work 20 submission employer 64 employer submits relief sought applicant appears go procedural matter dealt clause 40 47 agreement effect applicant seeking investigation ceased 65 employer submission dispute must focused whether complied agreement clause 40 agreement 66 employer submits clause 40 agreement provides allegation misconduct managed accordance clause university policy procedure employer emphasis employer submits aresponsible conduct research policy research policy outline process complaint alleging breach national health medical research council australian research council university australia australian code responsible conduct research may may also constitute research misconduct 21 employer submits clause 40 enables undertake process set research policy prior allegation referred director hr accordance clause 40 1 1 67 employer submits matter yet referred director hr 68 employer dispute breach clause 40 7 1 requiring confidentiality investigation inquiry allegation misconduct referred director hr accordance clause 40 1 1 69 applicant alleges failure afford procedural fairness breach clause 10 2 15 employer submits procedure research policy agreement satisfy requirement procedural fairness research investigation process 70 employer submits open university office research responsible among thing research ethic integrity determine whether appropriate complaint referred director hr employer submits accordance research code employer panel established consistent code concludes allegation misconduct referred director hr consideration occur 71 however employer submits completed threshold investigation provided research code therefore progressed stage outlined 72 employer submits use research code investigation determine relevant complaint warrant referral director hr submits found warrant referral dr fraser informed accordingly instance complaint found warrant referral referred director hr clause 40 1 1 agreement enlivened accordingly complaint 73 employer submits present activity first formal investigation dr fraser research investigation based provision evidence previously available 22 submits evidence currently employer made available employer 1 may 2018 accordingly professor pankhurst proceeded establish panel 29 may 2018 74 breach clause 47 agreement employer submits open applicant justify action subject complaint basis action constitute exercise intellectual academic freedom 23 employer submits applicant put argument panel 75 employer submits acted appropriately dealing matter regard information available current dispute commission 76 employer submits relief sought applicant extends beyond available dispute process agreement submits material filed applicant extend beyond dispute process shift determination validity concern outcome investigation process 24 77 employer submits commission restrict matter dealing dispute whether employer misinterpreted misapplied incorrectly implemented clause 40 47 agreement make determination merit complaint 78 employer submits seek confirmation commission engaged followed appropriate process witness evidence professor andrea bishop 79 professor bishop acting deputy vice chancellor research provided witness statement proceeding 25 professor bishop substantive position pro vice chancellor research previously held role director office research 80 professor bishop evidence introduction code 2007 employer developed thegriffith university code responsible conduct research university code approved november 2015 professor bishop state accordance university code employer must comply procedure outlined code investigate potential breach code 81 professor bishop note 2007 code replaced theaustralian code responsible conduct research 2018 2018 code required fully implemented university july 2019 ongoing investigation follow existing institutional policy 26 state accordingly code established 2007 relevantly required followed dealing allegation dr fraser 27 82 professor bishop evidence code set framework establishing inquiry determine whether research misconduct occurred state accordance code research misconduct described serious breach warranting formal investigation state formal inquiry panel form view research misconduct may taken place matter referred director hr investigation agreement 83 professor bishop state university research highly specialised complex therefore formal inquiry academically led process guided code drawing upon expertise specialist closely related field expertise applied methodology provide expert view conduct research 28 84 evidence determination whether breach code research misconduct occurred necessary first step professor bishop emphasis referral director hr investigation agreement 85 allegation dr fraser professor bishop give evidence two previous initial inquiry concluded allegation dr fraser breach code substantiated however say evidence received resulted new initial inquiry follow formal inquiry line policy 2007 code 29 86 professor bishop give evidence dr fraser informed need proceed formal inquiry process awaiting outcome commission progressing 30 considerationpreliminary matter 87 dispute lodged march 2019 underthe griffith university academic staff enterprise agreement 2017 2021 applicant made submission previous agreement provide applicant referred context dispute dispute lodged previous agreement 88 notwithstanding history context matter raised dispute applicant properly view pursues dispute accordance current agreement noting saving provision matter commenced previous agreement university similarly seek commission deal dispute current agreement dispute 89 applicant seek relief broad term university breached clause 10 40 47 agreement seek finding commission university failed afford dr fraser procedural fairness required defined clause 10 dealt assertion allegation dr fraser accordance requirement clause 40 engaged conduct breach dr fraser intellectual academic freedom right clause 47 identifies employee right regard 90 event commission find breach applicant seek order university immediately cease investigation allegation research misconduct convene research misconduct investigation panel withdraw allegation however described research misconduct dr fraser c take action relation allegation research misconduct cease communication third party dr fraser academic research standing make public statement agreed applicant dr fraser subject research academic misconduct investigation previous allegation substantiated f order commission deems appropriate 91 university submits order sought beyond relief available dispute process amount applicant seeking disciplinary investigation ceased entirely 92 final submission dr fraser m rudland explained applicant seek commission agree applicant interpretation clause 40 order university cannot proceed misconduct investigation panel way university wish pursue matter university start go process properly 31 93 response m rance noted follows university view yet point refer matter director hr investigation accordance clause 40 commission determine university correctly applied clause 40 university support order put forward m rudland commencement process 32 university afforded dr fraser procedural fairness required defined clause 10 2 15 94 applicant submits dr fraser afforded procedural fairness accordance clause 10 2 15 procedural fairness clause negotiated included agreement first time current agreement 95 applicant particularly complains never provided copy written complaint particular 96 response university submits sought actively bypass agreement procedural fairness provision dr fraser university submits clear setting process going follow providing dr fraser appropriate evidence time respond followed procedure agreement satisfied requirement procedural fairness 97 documentation provided response allegation dr fraser provided written complaint detail university relies correspondence dr fraser including letter 1 may 2018 andthe professor pankhurst letter 98 additionally following conference commission convened subsequent lodgement dispute university agreed provide dr fraser detail occurred 2 april 2019 99 deciding whether compliance requirement procedural fairness provided agreement two question considered clause 10 2 15procedural fairnessof agreement apply and2 apply required ensure compliance clause 100 clause 10 2 15 state procedural fairness clause triggered employee whose conduct performance question 101 trigger clause university question employee conduct requirement example finding misconduct 33 apply university question employee conduct 102 letter 1 may 2018 professor bishop includes allegation period time dr fraser engaged research interview appeared outside ethical research approval letter question dr fraser conduct clearly conduct questioned university questioned dr fraser conduct 1 may 2018 clause 10 2 15 complied 103 completeness may earlier investigation 2016 2017 similarly trigger procedural fairness clause observation clause 10 2 15 differentiate formal informal investigation applies university question employee conduct however given earlier allegation substantiated see little benefit revisiting investigation required ensure compliance clause 10 2 15 104 clause 10 2 15 set certain requirement procedural fairness require university provide dr fraser materialin possession comply university provide dr fraser withall material used thedecision making process 34 emphasis 105 least prior lodging dispute university provide dr fraser material used decision making process certainly case provision material 2 april 2019 dispute lodged university agreed provide detail 106 material provided 2 april 2019 clause 10 2 15 1 b requires employee provided withall material used decision making process unnecessary decide purpose resolving dispute letter 2 april 2019 reviewed ensure complies provision 107 provision significantly detailed letter following dispute notification commission address happened may 2018 word change failure provide procedural fairness provided agreement procedurally fair process needed happenin timely way failure provide necessary materialat relevant timewas remains breach university obligation procedural fairness agreement 108 clause 10 2 15 4 provides entitlement representation nominated representative meeting refusal university allow dr fraser represented also breach clause 109 find university breached clause 10 2 15 failing provide dr fraser procedural fairness required defined clause providing material timely way refusing representation university dealt assertion allegation dr fraser accordance requirement established clause 40 110 party agree resolve dispute commission must decide interpretation application implementation clause 40 applies allegation made dr fraser 111 particular party agree matter decided clause 40 follows clause 40 interpreted fact matter trigger application clause 40 112 clause 40 included inpart 7 disciplinary mattersin agreement clause heading clause 40 dealing misconduct serious misconduct 113 clause 40 provides allegation assertionsofmisconduct serious misconductwill managed accordance withthis clause university policy proceduresas amended time time emphasis 114 misconduct serious misconduct defined agreement serious misconduct clause 10 2 16 includes employee course employment engages research misconduct 115 applicant case simply put atleastthe finding professor pankhurst 18 may 2018 thatthere appears prima facie case research misconduct mean clause 40 applies additionally applicant seek interpretation agreement take precedence university policy 116 university relies agreement also seek different interpretation say clause 40 provides allegation misconduct managed accordance clause university policy procedure university submission clause 40 enables undertake process set research policiespriorto allegation referred director hr required clause 40 1 1 117 applicant submits agreement specific process required undertaken assertion allegation made agreement provision enforceable 118 m rudland brought commission attention decision inberri full bench reviewing binding decision suggests beginning point interpreting enterprise agreement agreement ordinary meaning construction enterprise agreement like statute contract begin consideration ordinary meaning relevant word disputed word must construed context agreement whole process interpretative analysis focus upon language agreement amcor limited v cfmeu gleeson cj mchugh j described process following term resolution issue turn upon language particular agreement understood light industrial context purpose kirby j put case nterpretation always text based activity 35 citation omitted 119 ordinary meaning clause 40 provides allegation assertion misconduct serious misconduct managed accordance clause university policy procedure amended time time 120 ordinary meaning assertion allegation serious misconduct employee trigger process established clause 40 121 allegation dealt 122 language agreement clear allegation assertion serious misconduct managed accordance clause 40 dealing misconduct serious misconduct andthe university policy procedure 123 managing investigation accordance requirement clause 40 university policy procedure clause 40 1 detail certain step must taken anassertionof misconduct serious misconduct applicant point requirement refer director hr submitting complied university fact university concedes 124 agree applicant view expressed professor pankhurst basis preliminary investigationthere appears prima facie case research misconductis expression allegation research misconduct conclusion reached point required assertion trigger clause finding university communicated professor pankhurst letter unambiguously assertion misconduct therefore clause 40 applies 125 university view code process applies circumstance panel finding necessary assertion purpose clause 40 misconceived however mean university required cease investigation allegation research misconduct code entitled progress allegation must also complying agreement particular clause 40 natural justice obligation 126 follows university dealt assertion allegation dr fraser accordance clause 40 agreement 127 view investigation based pankhurst letter 29 may 2018 recommence beginning seems letter professor bishop 18 april 2018 128 compliance employer clause 10 2 15 40 plainly follows established clause 40 applies requirement confidentiality clause 40 7 also apply investigation enquiry relation allegation subject dispute 129 practical effect application clause 40 1 referral matter director hr delegate timeliness confidentiality requirement agreement complied anddr fraser afforded natural justice right represented accompanied investigation respected university engaged conduct breach dr fraser intellectual academic freedom right 130 applicant also seek finding university engaged conduct breach dr fraser intellectual academic freedom right provided clause 47 131 clause 47 academic employee right participate public debate express opinion issue idea related academic professional area higher education issue affect institution higher education issue generally allegation limitation right first instance academic employee raise alleged limitation theuniversity individual grievance resolution procedure 132 present circumstance following matter relevant dr fraser right participate public debate express opinion issue idea related academic professional area right express unpopular controversial view right harass vilify intimidate allegation limitation right dr fraser first instance raise alleged limitation theuniversity individual grievance resolution procedure dr fraser claim university breached clause 47 133 allegation university complied dr fraser right intellectual academic freedom applicant alleges following breach clause 47 1 going investigation period two year direction dr fraser identify academic employee griffith university expert parliamentary inquiry professor pankhurst giving written advice falun dafa dr fraser investigation research misconduct andthe issue medium release dr fraser asserts lead attack medium parliamentary inquiry 134 applicant submits university placed fetter dr fraser ability freedom right firstly identify academic secondly identify expert relation area work organ transplantation trafficking around world 135 m rudland submitted dr fraser expert continues held expert university website 36 expertise required established take advantage clause 136 university submits dr fraser respond allegation potential breach code open dr fraser seek justify action basis action constitute exercise intellectual academic freedom 137 response argument m rudland submits matter dr fraser seek justify action misconduct investigation university breached obligation clause 47 138 view neither interpretation clause applies present circumstance correct 139 clause 47 defence asserted misconduct basis alleged misconduct constitutes exercise employee intellectual academic freedom additionally academic employee allege university complied right intellectual academic freedom clause 47 therefore shield allegation misconduct sword protect academic employee right however assertion right academic freedom clause 47 requires compliance clause dr fraser advise university intends rely right agreement particularly relation clause 47 140 date dr fraser complained vague term yet pursued right clause 47 dr fraser correspondence communication university fall short required establish contravention clause set detail clause 141 complaint dr fraser even period year trigger clause matter raised dispute detailed contained matter may basis assertion limitation academic freedom 142 however clause triggered employee assertion right pursuant theindividual grievance resolution procedurein clause 47 4 process requires university respond employee asserts university limited right breach clause 143 conclusion university purpose dispute breached clause 47 agreement order sought applicant 144 intend make order sought applicant seek clarify practical application decision 145 concluded university breached clause 10 40 indicated decision university recommence misconduct enquiry take account clause 10 40 146 clarify clause 40 prohibit university conducting enquiry according policy procedure policy procedure clearly include convening research misconduct investigation panel contemplation decision commissionerappearances m n rudland mr r hilton behalf applicant m b rance australian higher education industrial association behalf employer hearing detail 2019 12 june brisbane pr708505 attachment adisputes avoidance settlement procedures15 1the objective procedure avoidance resolution dispute matter covered part agreement measure based provision information explanation consultation cooperation negotiation 15 2the procedure clause may followed event dispute arises relates interpretation application implementation provision agreement national employment standard 15 3at stage dispute procedure employee may choose represented nominated representative 15 4the following procedure shall apply 15 4 1 first instance matter discussed relevant supervisor manager order attempt resolve dispute process normally extend beyond 10 working day period matter may referred ascc15 4 2 dispute resolved step shall referred director hr delegate shall attempt resolve matter normally take longer 15 working day resolution shall form written agreement subject necessary ratification either party dispute 15 4 3 dispute resolved step matter may referred either party dispute fair work commission fwc fwc may settle dispute mediation conciliation expressing opinion making recommendation effort undertaken resolve dispute stage party regard recommendation opinion presented fwc conciliation process result resolution dispute fwc may arbitrate dispute make determination binding decision fwc make arbitrating dispute decision purpose division 3 part 5 1 act therefore appeal may made decision 15 4 4 without prejudice position either party dispute matter dispute dealt accordance clause work shall continue normal manner respect bona fide health safety issue industrial action taken party dispute 15 4 5 nothing contained procedure shall prevent representative union university intervening respect matter dispute action considered conducive achieving resolution 15 4 6 party dispute agree bound decision made fwc accordance term attachment bclauses 10 40 47 agreement provide follows clause 10 definitions10 2 11 misconductmisconduct mean conduct serious misconduct nonetheless conduct unsatisfactory inappropriate including limited wrongful improper conduct kind constitutes impediment carrying employee duty employee colleague carrying duty b dereliction duty required employee c refusing carry lawful reasonable instruction consistent employee contract employment 10 2 12 nominated representativemeans person employee requested represent employee officer employee union currently practicing solicitor barrister 10 2 15 procedural fairnessmeans following 1 employee whose conduct performance question must informed case interest prior decision made andb provided material used decision making process andc given reasonable opportunity heard either writing orally including opportunity answer allegation material considered decisionmaker reasonable time respond andd given reasonable opportunity provide relevant material evidence taken consideration 2 decision maker must biased actual could seen informed observer biased way apprehended dealing matter stage decision making process 3 making decision decision maker must rely logical probative evidence b take account relevant consideration c take account irrelevant consideration 10 2 1 serious misconductmeans 1 conduct serious misconduct includes following wilful deliberate behaviour employee inconsistent continuation contract employment conduct cause serious imminent risk ii health safety person oriii reputation viability profitability employer business 2 subclause conduct serious misconduct includes following employee course employee employment engaging iv research misconduct clause 40 dealing misconduct serious misconductallegations assertion misconduct serious misconduct managed accordance clause university policy procedure amended time time nothing clause preclude university summarily dismissing employee ground serious misconduct purpose clause misconduct serious misconduct mean behaviour described subclauses 4 2 10 misconduct 4 2 14 serious misconduct employee assertion allegation misconduct serious misconduct time afforded procedural fairness including investigation undertaken decision discipline terminate employment employee misconduct serious misconduct accordance provision clause principle procedural fairness employee subject allegation misconduct serious misconduct may accompanied choose meeting relation allegation nominated representative 40 1 assertion misconduct serious misconduct40 1 1 assertion misconduct serious misconduct referred director hr delegate assertion may made person may verbal writing 40 1 2 director hr consider whether assertion warrant formal action procedure purpose making decision director hr may conduct initiate preliminary investigation undertaken within reasonable timeframe appointment investigator 40 1 3 director hr advise employee subject assertion assertion made process undertaken within 5 working day receipt assertion participation employee preliminary investigation without prejudice response position may undertake subsequent formal process 40 2 actionwhere director hr determines formal action procedure warranted action taken employee advised writing decision 40 3 formal action40 3 1 director hr decides proceed formal action notify employee writing setting allegation b include sufficient detail enable employee understand nature allegation properly consider respond including relevant document c inform employee entitled within 10 working day receiving copy allegation submit written response director hr 40 3 6 director hr determines case employee answer report containing director finding recommendation disciplinary action sent employee relevant senior officer employee receipt report 10 working day provide written response 40 7 matters40 7 1 allegation assertion misconduct serious misconduct reported director hr investigation inquiry relation allegation assertion confidential however prevent employee representative university disclosing allegation assertion aspect order obtain evidence advice relating allegation assertion 47 intellectual academic freedom47 1academic employee employee university right pursue critical open inquiry b participate public debate express opinion issue idea related academic professional area higher education issue affect institution higher education issue generally f undertake research produce publication andg engage community service without fear harassment intimidation unfair treatment 47 2academic employee right express unpopular controversial view mean right harass vilify intimidate 47 3these right linked responsibility staff support role university place independent learning thought idea may put forward opinion expressed freely institution must accountable expenditure public money 47 4any alleged limitation right raised first instance university individual grievance resolution procedure 1 witness statement dr campbell fraser dated 1 may 2019 26 annexure cf10 dr fraser statement 2 annexure cf11 dr fraser statement 3 annexure cf17 dr fraser statement 4 explanatory memorandum fair work bill 2008 cth 2735 5 2014 fwcfb 7446 6 2017 fwcfb 3005 7 witness statement dr campbell fraser dated 1 may 2019 8 ibid 4 9 ibid 7 10 ibid 11 11 ibid 15 12 ibid 16 13 ibid 17 14 ibid 21 15 ibid 28 annexure cf13 dr fraser statement 16 witness statement dr campbell fraser dated 1 may 2019 29 17 ibid 32 34 18 ibid 35 19 ibid 36 20 griffith researcher address papal summit organ trafficking 13 january 2017 http news griffith edu au 2017 01 13 organ donation hold solution black market 21 employer outline submission filed 20 may 2019 10 22 ibid 21 23 ibid 23 24 ibid 28 25 witness statement professor andrea bishop dated 20 may 2019 26 ibid 7 27 ibid 6 7 28 ibid 12 29 ibid 17 30 ibid 18 31 pn379 32 pn456 33 compare clause 40 34 general discussion access evidence common law see jr forbesjustice tribunal 4thedition 2014at 10 13 35 2017 fwcfb 3005 41 36 pn324 printed authority commonwealth government printer |
R v FULLER [2004] SASC 422 (13 December 2004).txt | r v fuller 2004 sasc 422 13 december 2004 supreme court south australia criminal application disclaimer every effort made comply suppression order statutory provision prohibiting publication may apply judgment onus remains person using material judgment ensure intended use material breach order provision enquiry may directed registry court generated r v fullerreasons decision honourable justice perry ex tempore 13 december 2004criminal law appeal new trial inquiry conviction appeal new trial appeal sentence appeal convicted person application reduce sentencethe applicant sought leave appeal sentence 5 year 4 month imprisonment non parole period 2 year 6 month imposed district court following plea guilty aggravated robbery applicant entered service station threatening attendant screw driver made 340 gaol serving sentence applicant victim serious assault another prisoner well claiming sentence manifestly excessive contended treatment gaol warranted review sentence held arguable error sentencing judge sentence well within appropriate limit subsequent assault gaol could provide reason revisit sentence way appeal application dismissed r v place 2002 sasc 101 2002 81 sasr 395 r v c 2004 sasc 244 considered r v fuller 2004 sasc 422criminal1perry j ex tempore matter applicant seek leave appeal sentence imposed upon district court following plea guilty charge aggravated robbery 2 circumstance offence 5 october 2003 applicant entered bp service station grabbed attendant hand threatened screwdriver demanding money made 340 3 applicant long record indeed previous offence sentencing judge described offender history abysmal 4 course sentencing remark sentencing judge referred decision court criminal appeal inplace 1 said considered appropriate starting point sentence 7 year imprisonment account applicant plea guilty reduced head sentence 5 year 4 month indicating would fix lower usual non parole period fixed non parole period 2 year 6 month 5 notice appeal originally filed applicant asserted sentencing judge imposed sentence manifestly excessive failed sufficient regard appellant circumstance restitution matter 6 hearing application gave leave mr mancini appeared applicant add ground appeal 7 ground complain starting point 7 year inappropriate greater allowance approximately 25 per cent allowed way discount plea guilty ground substituted hearing application 8 ground read 4 appellant circumstance since imprisonment materially changed due serious assault affecting mental physical wellbeing matter go question rehabilitation treatment gaol matter known sentencing judge time pronouncing sentence 9 ground subject affidavit put court applicant refers circumstance assault alleges took place 14 october 2004 yatala labour prison 10 ground view regard decision court criminal appeal inr v c 2 ground reasonably arguable 11 remaining ground reached firm conclusion reasonable prospect success 12 seems sentence well within appropriate limit regard circumstance offence personal circumstance applicant 13 notice appeal argument put forward support mr mancini identify arguable error part sentencing judge deserves attention court criminal appeal 14 application leave appeal dismissed 1 2002 sasc 101 2002 81 sasr 395 2 2004 sasc 244 |
DSU16 v Minister for Immigration and Border Protection [2019] FCA 128 (20 February 2019).txt | dsu16 v minister immigration border protection 2019 fca 128 20 february 2019 last updated 20 february 2019federal court australiadsu16 v minister immigration border protection 2019 fca 128appeal dsu16 v minister immigration anor 2018 fcca 874file number nsd 846 2018judge steward jdate judgment 20 february 2019catchwords migration appeal judgment federal circuit court australia whether primary judge erred dismissing application judicial review decision immigration assessment authority affirming refusal safe enterprise visa application whether breach ofs 473cbof themigration act 1958 cth legislation migration act 1958 cth s 36 473cb 473ddcases cited cqr17 v minister immigration border protection 2018 fcca 627emj17 v minister immigration border protection 2018 fca 1462sami v minister immigration citizenship 2013 fcafc 128 2013 139 ald 1stead v state government insurance commission 1986 hca 54 1986 161 clr 141date hearing 14 november 2018registry new south walesdivision general divisionnational practice area administrative constitutional law human rightscategory catchwordsnumber paragraph 38counsel appellant appellant appeared person assistance interpretercounsel first respondent mr g johnsonsolicitor first respondent dla pipercounsel second respondent second respondent filed submitting notice save costsordersnsd 846 2018between dsu16appellantand minister immigration border protectionfirst respondentimmigration assessment authoritysecond respondentjudge steward jdate order 20 february 2019the court order appeal dismissed cost agreed assessed note entry order dealt inrule 39 32of thefederal court rule 2011 reason judgmentsteward j appellant sri lankan tamil arrived australia unauthorised maritime arrival 12 october 2012 4 february 2016 lodged application class xe subclass 790 safe enterprise visa 18 august 2016 delegate first respondent delegate declined grant visa 22 august 2016 matter referred second respondent authority review 14 november 2016 authority decided affirm delegate decision appellant sought judicial review decision federal circuit court australia dismissed proceeding 9 may 2018 appeal decision backgroundthe appellant invokedss 36 2 and36 2 aa themigration act 1958 cth act disputed authority correctly understood provision essence appellant claim protection relate tamil ethnicity imputed political opinion associate liberation tiger tamil eelam ltte together later claim membership intelligence wing ltte membership particular social group wealthy businessmen targeted extortion failed tamil asylum seeker departed sri lanka illegally claim described detail authority learned primary judge 6 following way term gratefully adopt 6 applicant claim summarised authority include following 1978 late 2006 applicant lived jaffna time moved kilinochchi lived departure sri lanka year 2000 2012 departed sri lanka applicant owned operated two kind business interrupted period time spent family camp internally displaced person following conclusion civil war may 2009 end 2010 applicant business career different time owned operated restaurant grocery retail business applicant stated 2001 onwards sourced stock seran vanibhan wholesaler charge ordering stock supply ltte applicant area arrival interview applicant stated owner operator two business pressured pay money time group armed men know name group every time came asked money said give money would kidnap never paid came bought grocery never paid declaration submitted protection visa application applicant stated 2006 working jaffna based shop friend two men carrying gun approached belief connected criminal investigation department cid sri lankan police armed common member cid hassle civilian way applicant belief men targeted shop suspected sourcing stock ltte member known shop well earned lot money running likely suspected money shop going ltte sourced stock ltte connected wholesaler applicant saw one men aim gun direction shoot missed instead shot friend friend badly wounded died shortly shot applicant shaken scared experience result 2006 moved ltte controlled vanni region family set new shop decided move vanni region believed safe could afford buy land period 2006 2009 lot fighting ltte sri lankan armed force vanni tried keep family safe run shop without drawing attention family vanni region captured government 2009 family taken live camp controlled government camp lived government ration able go outside camp family released end 2010 allowed go back home town started new shop business home town tried rebuild life family early 2011 men came shop gun belief associated cid carrying gun aware member department would often interrogate civilian random time asked question owned house owned shop much money made answered scared would happen suspected cid suspicious getting money belief may suspected still sourcing stock member ltte men asked question two three time throughout 2011 scared answer gun know would happen answer late 2011 men came one shop gun forced go outside men pushed tree threatened hit give five lakh refused give money told knew five lakh bank account threatened belief suspicious source money still sourcing item associated ltte men gave deadline 10 day give money would come back kidnap harm incident scared worried family scared work stayed home week time men come shop went house asked family whether family told home gave address place bring money applicant moved away family moved mother house two hour away whilst living mother house made arrangement leave sri lanka come australia time men threatened would go house ask wife wife told would come two three time month sometimes would stand front shop applicant departed sri lanka 19 july 2012 travelled colombo malaysia reach australia 15 march 2015 men threatened applicant previously went house asked wife told forced go shop demanded give number threatened kidnap child said know wife started making arrangement leave family home wife relocated family home area kandavalai 25 kilometre away due ongoing threat made connection applicant applicant also provided evidence authority concerning information wife sri lankan army unearthed video wedding organised ltte army personnel showed video clip wedding andduring protection visa interview application raised new claim fact member ltte since 2003 role supervise specific area report ltte stranger area applicant afraid disclose previously due fear sri lankan intelligence organisation operate australia footnote omitted authoritythe authority regard material referred pursuant tos 473cbof act pursuant tos 473ddit also regard following new information provided appellant wife 1 around june 2016 appellant wife child forced relocate home area another area 25 km away order avoid ongoing threat 2 sri lankan army unearthed video appellant wedding organised ltte appellant found around two month ago authority accepted many appellant claim example accepted appellant hindu tamil married wife jaffna time administered ltte accepted appellant owned operated two different kind business restaurant grocery store jaffna later kilinochchi relocated 2006 2012 departed sri lanka accepted view operating business area time time military control civilian administration ltte plausible appellant sourced stock wholesaler connected ltte also accepted appellant family interned internally displaced person idp camp 2009 thereafter accepted 2010 2012 appellant resumed grocery business authority also accepted wealthy businessman risk extortion form harm criminal element including armed group thus accepted appellant approached unidentified person 2011 come shop asked question finance sought extort threat intimidation however found men criminal element rather agent sri lankan state criminal investigation department cid however accept appellant claim particular rejected contention involved ltte worked intelligence wing 2003 example appellant stated family interned separated family sent rehabilitation camp authority took clear indication appellant identified sri lankan authority person suspected ltte involvement also rejected claim worked intelligence wing ltte late claim mentioned appellant written visa application early interaction first respondent authority relied upon fact appellant identified sri lankan authority ltte connection whilst interned rejecting claim authority also accept 2006 armed men approached appellant shop fired gun injuring friend subsequently died authority said evidence delegate appellant able state year occurred unable recall date month alleged incident evidence described vague lacking detail authority also noted arrival interview appellant indicated unaware perpetrator 2006 shooting yet visa application appellant referred men throughout cid authority found done enhance claim factual authority considered recent country information demonstrated incident extortion ransom fallen considerably since 2015 therefore prepared accept since appellant arrival australia family approached criminal element appellant wealth authority made following finding 35 reason decision satisfied applicant would face harm foreseeable future return sri lanka wealthy businessman authority finally accept appellant would imputed pro ltte political opinion account married jaffna period ltte exercised military civil administrative control area appellant would face harm assumption authority possession footage appellant wedding authority found person living jaffna time necessarily contact ltte daily life wedding video thus add risk harm authority also considered risk harm arising fact appellant ethnic tamil north sri lanka said available country information indicated whilst ethnic tamil continue face discrimination sri lanka basis ethnicity alone amount serious harm concluded 49 follows considering applicant evidence country information discussed accept applicant would targeted upon return sri lanka tamil ethnicity tamil north satisfied applicant face real chance persecution reasonably foreseeable future basis tamil race tamil race origin north authority also rejected claim appellant would face real chance harm arising return sri lanka failed asylum seeker accepted appellant evidence notwithstanding used valid passport exit sri lanka passport could use return sri lanka returnees travelling temporary travel document would case appellant authority reasoned sri lankan police would undertake investigative process confirm person identity often involves found interviewing returning passenger contacting person claimed home suburb town police contacting person claimed neighbour family checking criminal court record department foreign affair trade dfat ass authority said returnees treated according standard procedure regardless ethnicity religion subject mistreatment processing airport reason 36 2 satisfied authority finally also considered complementary protection provision in 36 2 aa act accepted upon return sri lanka appellant might face level societal discrimination said amount significant harm defined otherwise accept claimed risk harm previously relied upon appellant purpose hiss 36 2 claim federal circuit courtthe appellant represented federal circuit court solicitor represented primary judge set ground review 16 follows ground 1the immigration assessment authority iaa assessment founded wrong assumption integer claim iaa failed understand claim put forward applicant particulars1 following delegate decision applicant made following claim 5 around june 2016 applicant wife child forced relocate home area another area 25 km away order avoid ongoing threat information sri lankan rmy unearthed video applicant wedding organised ltte applicant found around two month ago 2 iaa considered new information provided 5 iaa view ltte de facto civil administrator area controlled would responsibility relation civil affair marriage 10 37 iaa stated therefore consider wedding footage available sri lankan authority would way add applicant profile risk harm applicant would face upon return sri lanka foreseeable future 36 iaa state accept applicant imputed pro ltte political opinion account married jaffna period ltte exercised military civil administrative control area 37 iaa acknowledges person living ltte controlled area contact ltte civilian administration daily life including matter jaffna submitted iaa accepted applicant wedding footage may available sri lankan authority iaa consider applicant wedding footage may available sri lankan authority absence clear finding contrary submitted iaa impliedly also accepted manner wedding footage became available sri lankan authority e sri lankan rmy unearthed wedding video 5 applicant claimed rmy unearthed video applicant wedding organised ltte result applicant wife child forced relocate home area another area 25 km away order avoid ongoing threat iaa failed consider nature claim unlike person may contact ltte civilian administration applicant claimed ltte organised wedding ltte organised applicant wedding cannot interpreted part ltte civil administration process sri lankan rmy unearthed applicant wedding video result applicant family relocate due threat open infer iaa 37 finding would anyway add applicant profile place risk harm ground 2the iaa committed jurisdictional error cb 361 36 cb 362 37 failed consider essential integer applicant claim formed part new information part assessment future harm particulars1 applicant put forward new information iaa cb 350 2 iaa accepted claim credible personal information cb 355 11 new information contained following essential integer claim cb 350 sri lankan army unearthed video applicant wedding b wedding organised ltte c sri lankan army personnel searching applicant sri lankan army personnel showed video clip applicant wedding effort find wife child relocated increased threat result suspicion applicant iaa inferred even sri lankan authority possession footage applicant wedding imputed pro ltte political opinion cb 361 36 would way add applicant profile risk harm applicant would face upon return sri lanka cb 362 37 iaa finding cb 361 36 cb 362 37 failed consider applicant come adverse attention sought authority video unearthed ground 3the secretary failed statutory obligation provide information relevant received produced first respondent upon decision grant applicant primary application information service pais based particularsthe applicant identified first respondent asylum seeker eligible receive pais cb 199 particular document published department titled additional guidance pais eligibility criterion assessment process refers four criterion asylum seeker must meet considered eligible pais assistance document referred 2 state person must either satisfy criterion 1 2 3 may satisfy criterion 4 alone 4 criterion 3 appears 2 limb namely pais assistance best interest government facilitates application non citizen risk protracted period detention following lifting application bar pais assistance also best interest government individual identified exceptionally vulnerable thes46abar lifted first respondent purpose allowing applicant make valid application safe enterprise subclass 790 visa cb 263 would appear therefore following lifting application bar applicant risk protracted period detention basis evidence contained court book could said pais assistance provided applicant following lifting application bar applicant risk protracted period detention therefore pais assistance offered applicant best interest government applicant identified exceptionally vulnerable information concerning applicant considered exceptionally vulnerable basis upon grant applicant pais appear authority information referred 7 relevant information secretary possession control considered secretary time decision referred authority s473cb 1 c decision grant applicant pais referred cb 199 cb 197 cb 205 however information concerning applicant considered exceptionally vulnerable basis upon grant applicant pais referred iaa unders473cb 1 c act due secretary failed comply statutory obligation referring relevant information document review process authority disabled court rejected three ground ground one rejected basis open authority consider appellant reference ltte arranging wedding function performed ltte body de facto civil administration jaffna time court also rejected attempt link discovery wedding video claim family appellant recently moved 25 km away prior home court rejected second ground basis authority decided claim made wedding received new information nonetheless entitled find discovery material add appellant risk profile finding inconsistent said video credible personal information satisfied requirement ofs 473ddof act third ground delegate failed comply withs 473cb 1 c act term 1 secretary must give immigration assessment authority following material review material respect fast track reviewable decision referred authority undersection 473ca c material secretary possession control considered secretary time decision referred authority relevant review material said provided authority comprised two document produced subpoena sought document relating grant assistance appellant primary application information service pais pais government funded migration assistance provided registered migration agent assist claimant making application protection visa first document entitled primary application information service eligibility check standard operating procedure operating procedure document infer prepared officer first respondent 143 page long set series protocol guideline determining amongst thing eligible pais assistance general document concern appellant specifically indeed applicant visa document email officer first respondent whose name redacted dated 15 september 2014 email concerned appellant term sensitivegood morningre cid name appellant cost approved torture trauma 6 session total 2946 regardsasas officercas asas operationscommunity programme operationsdepartment immigration border protectionthe appellant submitted document relevant claim given authority pursuant tos 473cb 1 c particular order eligible pais assistance claimant must found exceptionally vulnerable fact first respondent formed view appellant submitted relevant assessment claim learned primary judge disagreed honour held document irrelevant said follows 52 respect ground accept minister contention evidence torture trauma suffered applicant authority aware applicant receiving assistance pais case distinguished decision inakk17 torture claim said made submission reproduced cb 305 never developed put relevant context requiring consideration authority document produced subpoena consequence need referred authority secretary reference torture trauma paragraph take reference language email appealthe sole ground appeal term judge federal circuit court committed legal error dismissed case failed consider argument appeal properly denied procedural fairness error original appellant filed written submission support ground appellant sought adjournment appeal pending outcome appeal decision judge street incqr17 v minister immigration border protection 2018 fcca 627 case applicant also given pais assistance subpoena issued first respondent produce document relating grant assistance judge street described document term 30 common ground five document included pais guideline referred secretary authority unders 473cbof act document came existence relation pais application one find applicant migration representative time safe enterprise visa interview time decision delegate time application authority well aware application pais scheme applicant present case would document kind referred submission similar made made judge street document relevant assessment applicant claim thats 473cb 1 c act complied declined application adjournment may accepted failure produce relevant document unders 473cb 1 c could amount jurisdictional error prevents authority performing review function thawley j recently observed inemj17 v minister immigration border protection 2018 fca 1462at 41 breach ofs 473cb 1 secretary might arguably establish jurisdictional error part authority could shown breach consequence review conducted authority review kind authorised bypart 7aa question whether authority blame question effect anterior breach authority decision making process cf szfdev minister immigration citizenship 2007 hca 35 2007 232 clr 189at 47 anterior breach might consequence example authority jurisdiction fault constructively unexercised szfdeat 52 honour went onto observe 42 implicit statute contemplates secretary view relevance reasonably formed correct understanding law see kruger v commonwealth 1997 hca 27 1997 190 clr 1at 36 brennan cj minister immigration citizenship v li 2013 hca 18 2013 249 clr 332at 63 hayne kiefel bell jj critical piece relevant information unreasonably treated irrelevant possible jurisdictional error could established effect error authority decision making process whether conduct review kind authorised follows whether failure comply withs 473cb 1 c act constitutes jurisdictional error depend upon nature content document document produced also depend upon whether relevant function authority reviewing claimant ground necessarily fact driven enquiry determined case case basis able tell document judge street incqr17 case concerning car accident possible brain injury similar two whether similar however view determination relevance case unlikely assistance proceeding must consider whether decision primary judge two document question irrelevant assessment appellant claim case contained error error law cqr17will assist task reason adjournment refused appellant also sought tender without prior notice bundle document said proved event alleged occurred 2006 fact taken place explained previously produced first respondent adduced new information purpose ofs 473ddbefore authority wife three month ago unable get declined admit material evidence address ground judicial review federal circuit court ground appeal rather attempt consider merit authority finding fact concerning 2006 alleged incident sami v minister immigration citizenship 2013 fcafc 128 2013 139 ald 1at 9 per jagot barker perry jj return appellant ground appeal first respondent written submission contended follows ground face establish appellable error federal circuit court reason judgment primary judge detailed reveal ground review advanced court appellant legal representative also argument made support ground honour reason demonstrate respect considered cogent approach appellant argument particularly considering appellant benefit legal representation preparation presentation claim court absence development point appellant court basis contention appellant denied procedural fairness respectfully agree submission nonetheless revisited contention made breach ofs 473cb 1 c purpose commence considering potential relevance document assessment likelihood appellant claim set application ofss 36 2 and36 2 aa act operating procedure document describes detail claimant found exceptionally vulnerable unsurprisingly circumstance mostly concerned present health claimant australia document directs attention enquiry example condition affecting cognitive function mental illness incapacitating illness difficulty completing application form conclusion drawn enquires unlikely relevant function authority review save case might explain example inconsistences answer given claimant different time document also directs one consider torture trauma state respect additional difficulty engaging official government process may also associated past experience torture trauma individual received recent torture trauma treatment may considered assessment exceptional vulnerability cumulative experience significant impact person ability understand protection assessment process articulating claim protection view unless needed better understand another document arising consideration pais assistance operating procedure document unlikely relevant authority review function also find relevant assessment appellant claim authority aware fact appellant received pais assistance need document undertake review function document said nothing appellant said nothing sri lanka second document email unfortunately explanation meant said approved torture trauma 6 session counsel first respondent contended probably counselling session kind reference torture cannot evidence appellant tortured never claimed treated reference trauma might highest evidence conclusion reached unnamed public servant appellant might suffered trauma view email evidence irrelevant opinion could enhance detract historical claim authority required consider reason given would assisted authority considering inconsistences appellant claim event email probably evidence appellant suffered recent trauma reference torture trauma likely capitalised form refer type counselling provided email needed make authority aware appellant received pais assistance letter seeking consent provide detail pais provider together consent material sent authority infer member authority would aware pais program mission helping exceptionally vulnerable also infer authority knew appellant received pais assistance matter authority take account evaluating evidence especially relation possible reason inconsistency evidence respect view knowledge email authority would made difference result stead v state government insurance commission 1986 hca 54 1986 161 clr 141 suggesting appellant given counselling session pais assistance probative matter might assisted authority reviewing claim respect submission made appellant pais assistance suffered prior trauma affected ability give evidence first respondent authority authority otherwise material appellant given first respondent including new information set follows particular factual circumstance email relevant authority need perform review function might decided issue differently authority entirely unaware appellant received pais assistance reason given case appeal dismissed cost agreed assessed certify preceding thirty eight 38 numbered paragraph true copy reason judgment herein honourable justice steward associate dated 20 february 2019 |
Girma, Dominic Paul [2004] MRTA 1040 (20 February 2004).txt | girma dominic paul 2004 mrta 1040 20 february 2004 last updated 27 april 2004 2004 mrta 1040catchwords visa cancellation section 116 ground cancellation cancellation discretionaryreview applicant dominic paul girmatribunal migration review tribunalpresiding member namoi dougallmrt file number n03 05291dimia file number clf2003 63068date decision 20 february 2004at sydneydecision tribunal set aside decision review cancel review applicant student temporary class tu visa substitute decision visa cancelled statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural indigenous affair delegate 21 july 2003 cancel student temporary class tu visa held mr dominic paul girma review applicant national papa new guinea born 14 april 1982 delegate decision cancel visa made themigration act 1958 act jurisdiction standing2 review applicant lodged valid application review migration review tribunal tribunal 7 august 2003 decision reviewable tribunal application review validly made person standing apply review legislation policy3 section 338 3 act set tribunal general power review cancellation decision allowing review decision cancel visa non citizen themigration zoneat time cancellation immigration clearance 4 reviewing cancellation decision tribunal generally restricts considering ground cancellation raised delegate also examines procedure followed delegate cancelling visa ensure requirement set act met 5 reaching decision review tribunal bound act various regulation principally themigration regulation 1994 regulation written direction issued minister section 499 act matter may subject policy found publication procedure advice manual 3 pam3 migration series instruction msis produced department immigration multicultural indigenous affair department policy guideline observed inconsistent legislation cogent reason application 6 tribunal power affirm vary set aside decision cancel visa tribunal set aside decision cancel visa effect visa never cancelled even ground cancellation established visa would otherwise expired outcome visa longer current particular consequence cancellation longer apply e g restriction applying another visa 7 legislation policy material immediately relevant review legislation section 116of themigration act schedule 4 themigration legislation amendment overseas student act2000 |
Narkis & Narkis and Anor (No 2) [2018] FamCA 1026 (28 March 2018).txt | narkis narkis anor 2 2018 famca 1026 28 march 2018 last updated 10 january 2019family court australianarkis narkis anor 2 2018 famca 1026family law practice procedure modest dispute nature process wife seek order 79a act file statement claim seek relief trustee family trust despite present formulated claim court accepts anticipatory order made parenting dispute 15 year old child wife refuse indicate living despite child father sole parental responsibility order made filing comprehensive evidence resolve issue family law act 1975 cth b pty ltd or k anor 2008 famcafc 113narkis narkis 2016 famca 976narkis narkis 3 2016 famca 1048narkis narkis 2017 famca 52narkis narkis 2 2017 famca 118narkis narkis 3 2017 famca 184narkis narkis 4 2017 famca 200narkis narkis 5 2017 famca 225narkis narkis 6 2017 famca 226re k appeal 1994 famca 21 1994 flc 92 461applicant m narkisrespondent mr narkisproposed intervenor mr hh narkisfile number mlc210of2014date delivered 28 march 2018place delivered melbourneplace heard melbournejudgment cronin jhearing date 28 march 2018representationcounsel applicant mr mcevoy qc m matsonsolicitor applicant farrar gesini dunncounsel respondent m lanesolicitor respondent cantwell family lawyerscounsel intervenor mr wraithsolicitor intervenor tisher liner fc lawordersparentingthat outstanding application adjourned date fixed wife file serve affidavit 4pm 13 april 2018 addressing basis upon alleges husband provided child residential address anddetails child living arrangement condition husband liberty file affidavit answer wife affidavit within 14 day service wife affidavit pursuant tosection 68l 2 thefamily law act 1975the child e born 2002 separately represented requested victoria legal aid arrange separate representation forthwith upon appointment said victoria legal aid otherwise independent child lawyer file notice address service within 48 hour notification appointment party represented solicitor respective party provide independent child lawyer copy relevant document relied upon pursuant tosection 91bfamily law act 1975 department health human service invited intervene proceeding financial mattersthat relation real property know street suburb n wife shall pay following expense said property addition monthly sum 4 167 including limited land tax owing amount 8 094 land tax instalment due march 5 772 instalment land tax fall due building insurance premium 2 438 andaccounts owing repair amount 2 500 within 14 day wife provide name 3 appropriately qualified tradespersons husband inspect real property follows respect real property street suburb n order identify necessary repair provide quotation work done particular attention water damage door lock system attendance report equal expense husband wife andwith respect real property q street suburb r order ascertain general term nature extent work done expense attendance report wife sole expense husband make election tradespeople within 7 day notify wife election wife solicitor contact tradespeople facilitate inspection property andthe wife permitted attend either property purpose inspection procedural mattersthat before4pm 4 may 2018the applicant wife file serve amended initiating application seeking join mr hh narkis capacity trustee m jk mr narkis family trust family trust party proceeding annexing statement claim setting basis relief sought family trust asset particularising basis claim undersection 79afamily law act1975 |
QUEENSLAND PUBLIC SERVICE AWARD - STATE 2003 [2011] QIRComm 12 (11 February 2011).txt | citation queensland public service award state 2003 2011 1 amendment http www qirc qld gov au queensland industrial relation commission industrial relation act 1999 125 making amending repealing award 129 flow certified agreement department justice attorn ey general queensland pub lic sector union employee 2011 1 queensland public service award state 2003 commissioner fisher 11 february 2011 amendment matter coming hearing commission brisbane 11 february 2011 commission order said award amended follows 11 february 2011 1 deleting clause 5 14 4 inserting following lieu thereof 5 14 4 call allowance nursing staff employed award instructed call outside ordinary rostered working hour shall compensated accordance schedule 4 section 3 b employee instructed available call outside ordinary rostered working hour employee paid addition ordinary rate pay allowance based upon hourly rate classification professional officer level 3 paypoint 4 accordance w ith following scale employee call throug hout whole rostered day f accrued day public holiday 95 hourly rate respect instance ii employee call night rostered day accrued day public holiday 60 hourly rate per night iii employee call night 47 5 hourly rate per night purpose calculating hourly rate divisor shall based upon 38 hour week calculated nearest 5c purpose provision night shall deemed consist hour falling 5 00 p 8 00 mainly hour rostered day includes 2 day 7 part ordinary working hour e g saturday sunday employee whose ordinary working day monday friday c monday friday event employee call recalled perform duty employee shall paid time worked th e prescribed overtime rate time calculated home back home minimum payment 2 hour saturday sunday public holiday employee performing overtime work recall saturday sunday public holiday may paid time appropriate overtime rate minimum 2 hour inclusive travelling time respect overtime worked saturday sunday 4 hour respect overtime worked public holiday employee option granted time mutually convenient time equivalent number hour worked time calculated home back home provided employee work overtime public holiday granted equivalent time shall paid half ordinary rate time worked minimum 4 hour provided accrued time lieu shall taken period mutually agreed chief executive officer employee e employee call undertake duty without need leave employee place residence shall entitled following 2 providing advice referring caller staff organisation taking detail complaint incident resolution ordinary hour directing staff attend incident normally greater 10 minute occurren ce payment prescribed overtime rate actual time worked maximum 2 hour one day provided least 4 call category taken 10 00 p 6 00 call shall deemed constitute minimum one hour work ii undertaking normal dutie e g correcting resolving fault via internet maki ng receiving phone call order manage incident provided payment prescribed overtime rate actual time worked minimum payment one hour time employee performs duty provided employee recalled ag perform duty separately within minimum one hour period payment shall apply provided employee responsible recording request require subsequent verification chief executive officer f overtime payable shall addition call allowance g employee recalled perform work duty period employee shall provided transport employee home refunded cost transport h practicable chief executive shall require employee continuously available call period excess 6 week provision clause 6 4 9 shall apply employee actually work ed excess 2 hour inclusive travelling time one recall j call arrangement implemented agreement chief executive majority affected employee relevant union agr eement implement call arrangement shall unreasonably refused 2 deleting section 6 call arrangement schedule 4 dated 11 february 2011 commission l g savill industrial registrar operative date 11 february 2011 amendment call allowance released 15 february 2011 |
SVFB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 822 (25 June 2004).txt | svfb v minister immigration multicultural indigenous affair 2004 fca 822 25 june 2004 last updated 29 june 2004federal court australiasvfb v minister immigration multicultural indigenous affair 2004 fca 822migration application review refugee review tribunal decision well founded fear persecution effective state protection test applied considering state protection minister immigration multicultural affair v respondent s152 2003 2004 hca 18appliedminister immigration multicultural affair v khawar 2002 hca 14citedsvfb v minister immigration multicultural indigenous affairs 58 2004lander j25 june 2004adelaidein federal court australiasouth australia district registry 58 2004between svfbapplicantand minister immigration multicultural indigenous affairsrespondentjudge lander jdate order 25 june 2004where made adelaidethe court order 1 application dismissed note settlement entry order dealt order 36 federal court rule federal court australiasouth australia district registry 58 2004between svfbapplicantand minister immigration multicultural indigenous affairsrespondentjudge lander jdate 25 june 2004place adelaidereasons judgment1 application unders 39bof thejudiciary act 1903 cth seeking review decision refugee review tribunal rrt given 11 february 2004 2 applicant woman born 28 may 1970 citizen nigeria arrived australia 7 january 2002 5 march 2003 applied protection class xa visa department immigration multicultural indigenous affair themigration act 1958 cth 1 may 2003 delegate minister immigration multicultural indigenous affair refused grant protection visa 21 may 2003 applicant applied rrt review decision 11 february 2004 rrt affirmed decision delegate minister grant protection visa 3 applicant seek review decision claiming rrt fell error 1 breach rule natural justice occurred connection making decision 2 decision involved error law whether error appears record decision 3 procedure required law observed connection making decision observed 4 making decision improper exercise power conferred enactment pursuance purported made 5 evidence material justify making decision 6 decision otherwise contrary law 7 decision involved making jurisdictional error tribunal identified wrong issue applied wrong test law 4 applicant case delegate rrt feared would suffer serious harm amounting persecution return nigeria 5 applicant come esan north east local government area edo state nigeria ishan people tribe within nigeria 6 ishan people traditionally practised female genital mutilation fgm applicant sister underwent fgm village originated sometime 1980s ishan people expect every woman initiated womanhood circumcised every female expected choose time initiation sometime 16 33 year age woman remain uncircumcised age 33 7 rrt prepared accept ishan people one many tribe within nigeria traditionally practice fgm tribunal found fgm constitutes serious harm amounting persecution 8 however tribunal prepared find real risk applicant would subjected procedure opinion chance procedure inflicted upon applicant remote 9 found fgm traditionally practised village run along traditional line elder woman child usually live village subject traditional practice including fgm arranged marriage 10 rrt found however applicant urban person moved apart village life born raised benin city nigeria completed undergraduate degree computer science 1994 applicant moved home state 1994 1995 came australia lived independently lagos obtained certificate informatics 1998 came australia undertake one year traineeship within professional field 11 rrt found independent professional woman make decision professional private life 12 rrt found applicant able withstand plea family village elder also able withstand admonishment 13 rrt satisfied attempt use visible force place applicant situation could subjected fgm 14 found way applicant could become vulnerable fgm procedure would kidnapped taken involuntarily village 15 found evidence ishan people resort kidnapping order ensure compliance traditional fgm procedure woman tribe 16 state born first state nigeria pas legislation banning practice fgm october 1999 17 rrt said claim evidence suggest harm let alone harm amounting persecution befell applicant past convention reason tribunal satisfied chance harm befall applicant reasonably foreseeable future remote follows tribunal satisfied applicant well founded fear persecution convention reason refugee 18 reason rrt found applicant well founded fear persecution real chance would subjected fgm 19 moreover rrt found evidence indicate nigerian authority would willing able protect applicant event attempt made force applicant undergo fgm 20 rrt found attempt force applicant undergo fgm would bring perpetrator serious trouble law procedure illegal within edo state village located forcible abduction person illegal anywhere nigeria nothing tribunal indicate nigerian authority would willing able protect applicant threat abduction equally within edo state authority power fine imprison perform fgm attitude authority fgm widely publicised independent evidence page 7 8 make clear 21 whilst ground supported application review extensive end result applicant limited challenge finding mentioned 22 argued correct test law whether nigerian authority would willing protect applicant threat abduction whether authority within edo state power fine imprison perform female genital mutilation whether attitude authority female genital mutilation nigeria well publicised whether state protection offered state nigeria effective tribunal asked wrong question therefore applied wrong test law tribunal asked whether state nigeria willing protect applicant also asked attitude nigerian authority real question tribunal asked whether state protection offered state nigeria effective willingness attitude different question different concept whether state provide effective protection real question decided whether state nigeria could effectively protect applicant 23 applicant argued finding rrt applicant well founded fear persecution mean complaint finding state able prepared offer protection irrelevant 24 applicant argued case finding well founded fear persecution dependent part ability state provide protection person claiming fear persecution minister immigration multicultural affair v respondentss152 2003 2004 hca 18 minister immigration multicultural affair v khawar 2002 hca 14 25 whether state provide protection person claiming fear persecution may relevant determination whether person subjectively hold fear whether objectively fear well founded 26 whether question state protection relevant rrt decision applicant well founded fear persecution depend upon reason finding applicant fear applicant fear well founded case rrt make clear whether found applicant subjective fear found satisfied applicant well founded fear persecution finding may made satisfied applicant fear persecution satisfied applicant fear persecution well founded 27 unclear rrt came conclusion satisfied applicant well founded fear persecution would appropriate assume benefit applicant rrt regard state ability willingness afford application protection aspect reason 28 therefore prepared accept purpose considering applicant argument attack finding referred also relevant first two question must decided whether applicant well founded fear persecution 29 already said rrt concluded way applicant could risk fgm would kidnapped taken involuntarily village came applicant complained finding 30 question whether established nigerian authority unable unwilling afford protection circumstance 31 rrt said nothing indicate authority would willing able protect applicant fear abduction 32 applicant challenge finding say overwhelming evidence including given rrt contrary finding 33 delegate decision record rrt delegate decision regard latest united state country report contained following discrimination woman remained problem female genital mutilation fgm remained widely practiced sic part country federal government publicly opposed fgm however took legal action curb practice federal law banning fgm woman center sic peace development woped estimated least 50 per cent woman undergo fgm study conducted un development system world health organization estimated fgm rate approximately 60 per cent among nation female population however according local expert prevalence may high 100 per cent ethnic enclave south 34 delegate also referred uk country assessment nigeria stated nigerian government approve fgm federal law banning authority taken legal action curb woman centre peace development woped estimated least 50 woman mutilated study conducted united nation world health organisation estimated fgm rate approximately 60 among nation female population however according local expert actual prevalence may high 100 ethnic enclave south 35 delegate also referred dfat document cx50034 stated prevalence fgm calculated 41 practised 33 household nigeria age girl woman circumcised vary infancy puberty young adulthood sometimes even birth first born however pertinent comment delta state fortunately amongst four state nigeria made law fgm since restoration civilian rule may 1999 state includes cross river edo ogun like state legislation adequate machinery place enforce law give redress child woman feel injured practitioner fgm 36 applicant also pointed information like kind submitted rrt argued circumstance body evidence rrt established nigerian authority would unable protect threat abduction 37 opinion evidence applicant refers support concluding submission 38 body evidence establishes fgm still widely practised throughout nigeria particular southern eastern area nigeria evidence federal law banning practice although federal government approve fgm state including state applicant come banned practice penalty may imposed substantial state put place appropriate machinery enforce law 39 however part question addressed 40 whilst evidence support finding referred evidence address circumstance woman age applicant become urbanised educated tertiary level would succumb social family pressure allow practice performed word evidence address real question case whether nigerian authority would unable unwilling protect forcible removal village purpose fgm 41 evidence rrt support finding authority nigeria would willing able protect applicant threat abduction rrt satisfied nigerian authority could guarantee safety applicant authority could provide assurance safety minister immigration multicultural affair v respondentss152 2003at 26 28 rrt obliged consider whether nigerian authority reasonably effective police force reasonably impartial system justice 28 needed consider whether protection offered nigerian authority citizen inadequate fall international standard however evidence support finding circumstance evidence establish applicant returned nigeria lived lagos could effectively protected abduction therefore fgm 42 opinion application must fail certify preceding forty two 42 numbered paragraph true copy reason judgment herein honourable justice lander associate dated 25 june 2004counsel applicant w clisbysolicitor applicant mark w clisbycounsel respondent kym tredreasolicitor respondent sparke helmoredate hearing 22 june 2004date judgment 25 june 2004 |
Dimiotis v Darebin CC [2008] VCAT 209 (13 February 2008).txt | dimiotis v darebin cc 2008 vcat 209 13 february 2008 last updated 20 february 2008victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p2694 2007permit application 142 2007catchwordssection 82 planning environment act 1987 darebin planning scheme residential 1 zone neighbourhood character landscapingapplicanthelen andrew dimiotisresponsible authoritydarebin city councilrespondentadrian atkins associatessubject land7 mason street reservoirwhere heldmelbournebeforetracey bilston mcgillen memberhearing typehearingdate hearing22 january 2008date order13 february 2008citationdimiotis v darebin cc 2008 vcat 209orderthe decision responsible authority set aside permit application 142 2007 permit granted tracey bilston mcgillenmemberappearances permit applicantbill kusznirczuk consultant town planner clement stone town plannersfor responsible authorityjoel fredman consultant town plannerfor objectorsangie pantelidisanna hannonhelen andrew dimiotisjohn papasjiannis karterasreasonswhat considered application review 1 lodged helen dimiotis objector decision darebin council issue notice decision grant planning permit 7 mason street reservoir proposed development three dwelling including two two storey one single storey dwelling following hearing inspected subject site surrounding area subject sitethe subject site comprises site area 779 square metre located southern side mason street reservoir site slope approximately 2 25 metre north east corner south west corner site single storey dwelling land existing driveway along western boundary garage located toward rear behind existing dwelling surrounding area accommodates range dwelling style heritage dwelling home built 1980 1990 single two storey dwelling evident surrounding area abutting property single storey dwelling generally occupy first half site many dwelling garage shed structure rear portion yard real sense openness however standing rear yard subject site site well located service including shopping centre school park public transport notably mason street road ending small pocket park proposed proposed demolish existing dwelling construct three dwelling site dwelling 1 2 two storey height dwelling 1 located front site ground floor provides open plan family meal area kitchen meal area toilet laundry facility first floor accommodates three bedroom bathroom private open space provided east dwelling dwelling double garage dwelling 2 provides lounge family meal kitchen dining area ground floor two bedroom bathroom provided first floor private open space located east dwelling single garage dwelling 3 rear site single storey provides open plan family kitchen two bedroom dwelling single garage private open space area range 40 square metre dwelling 1 3 42 8 square metre dwelling 2 dwelling contemporary design tiled roof use brick render finish planning permit trigger land included residential 1 zone permit required development two dwelling 2 application must meet requirement clause 55 rescode site also affected development contribution plan overlay 1 permit must consistent provision relevant development contribution plan include condition required give effect contribution levy imposed condition requirement set relevant schedule range planning policy highlighted 3 generally accepted planning policy seek orderly development urban area facilitates sustainable development take full advantage existing settlement pattern seek locate metropolitan growth close transport corridor service development respect character neighbourhood improve housing choice make better use existing infrastructure local planning policy framework seek ensure housing sufficiently diverse provide affordable housing ensure housing protects enhances existing residential amenity darebin ensure development complement respect urban character area retain enhance identified element contribute urban character area subject site located within d5 council urban character study valued character precinct identifies consistent pattern spacing dwelling identifies many dwelling renovated extended rather redeveloped indicating building style valued part character area policy identifies threat two storey extension reflect character area high front fence new building inappropriate shape front setback material style consideration issuesat broad policy level proposal would advance urban consolidation objective planning scheme proposal provides three dwelling instead one provides two type dwelling two larger family home smaller unit however persuaded council permit applicant proposal achieved critical policy relating neighbourhood character spirit planning scheme advance urban consolidation policy development respect neighbourhood character persuaded objector three dwelling lot quite location character neighbourhood case easy tick box rescode example minimum standard rescode met proposal site responsive following concern neighbourhood characteri raised issue character area concern intrusion development backyard lot within section mason street jeffrey street park seven property including south east corner property orientated jeffrey street located southern side street inspection observed development lot property extended half way lot noted adjoining dwelling 5 mason street outbuilding within rear potion yard including shed located west boundary smaller garden shed located rear third lot key observation standing several lot including subject site real sense openness within rear yard adjoining property real spaciousness development within area form part character area respected proposal extends development entirely rear yard whilst third dwelling single storey third dwelling located 1 175 metre rear boundary garage dwelling located west boundary set approximately 3 metre east boundary dwelling intrusion backyard scape area term backyard scape new term planning describes character area little development rear yard dwelling considered important part character area concern compounded fact development extends almost 42 metre continuously spacing dwelling opportunity landscaping soften impact development extent development reflect low key residential built form nature area future development lot maintain larger area rear free development clause 55 02 1 neighbourhood character objective read ensure design respect existing neighbourhood character contributes preferred neighbourhood character ensure development responds feature site surrounding area find proposed development fails respond feature surrounding area fails respect character neighbourhood design failed acknowledge intense development adequately responded identified feature area failed acknowledge within property jeffrey street park property sense openness respected openness character obvious stand rear yard subject site abutting property development 42 metre length respect character area property may able developed advance urban consolidation objective may two dwelling instead three urban consolidation objective met expense neighbourhood character policy landscapingi following concern development lack landscaping opportunity site development extends continuously 42 metre limited opportunity landscaping landscaping plan detailed retention tree front yard two area tree western boundary tree proposed east southern boundary proposal fails achieve clause 55 03 8 landscaping objective read provide appropriate landscaping landscaping opportunity proposed development inadequate fails provide sufficient area canopy tree within site overlookingi concern regarding potential overlooking ground floor window door rescode overlooking objective limit view existing secluded private open space habitable room window east elevation dwelling detail boundary fence height 1 8 metre floor level dwelling depending measure many section higher 0 8 metre ground level boundary therefore screening measure would required prevent overlooking ground floor dwelling unacceptable design outcome proposal fails satisfy overlooking objective limit view secluded private open space adjoining property plansi need make comment inaccuracy plan one simple example one plan detailing boundary fence 1 8 metre another 1 9 metre hearing also highlighted private open space figure also differed different plan also many instance measurement included distance boundary unacceptable forum information need complete correct conclusionthis case could argued development site would advance urban consolidation policy planning policy framework however proposal failed respect character neighbourhood one policy expense site may capable development rear yard backyard scape need respected landscaping also need provided decisionhaving regard submission order permit issued tracey bilston mcgillenmember 1 section 82 planning environment act 1987 2 clause 32 01 4 darebin planning scheme 3 state planning policy framework clause 12 14 15 12 16 02 19 03 local planning policy framework clause 21 04 21 05 2 21 05 3 22 04 urban character study precinct d5 |
AMC Building Design v Maribyrnong CC [2005] VCAT 2894 (23 January 2006).txt | amc building design v maribyrnong cc 2005 vcat 2894 23 january 2006 last updated 2 february 2006victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p2650 2005permit application tp05 0313catchwordsapplication unders 77of theplanning environment act 1987against council refusal grant permit four dwelling maribyrnong planning scheme residential 1 zone neighbourhood character consideration interface adjoining property applicantamc building design pty ltdresponsible authoritymaribyrnong city councilrespondent objectorspietro angelina nidosubject land79 kingsville street kingsvillewhere heldmelbournebeforechristina fong memberhearing typehearingdate hearing19 january 2006date order23 january 2006citation 2005 vcat 2894orderthe decision responsible authority refuse application set aside planning permit tp05 0313 issue development four dwelling 79 kingsville street kingsville generally accordance endorsed plan subject following condition 1 development start amended plan satisfaction responsible authority must submitted approved responsible authority approved plan endorsed form part permit plan must drawn scale dimension three copy must provided plan must generally accordance plan substituted vcat hearing 19 january 2006 prepared amc building design revision modified show unit 4 redesigned either without expanding ground floor footprint become attic style dwelling roof pitch maximum 30o note result reduction floor area first floor dwelling remains two bedroom unit double garage may become single garage orii become single storey building case achieve two bedroom ground floor proposed double garage may converted single garage northern wall powder room extended align northern wall family room b schedule material finish respond neighbourhood character developed consultation council urban designer c roof unit 4 facing 222 somerville road entrance extended southern boundary satisfaction responsible authority 2 layout site shown endorsed plan must altered modified whether order comply statute statutory rule bylaw reason without consent responsible authority 3 development start landscape plan satisfaction responsible authority must submitted approved responsible authority approved plan endorsed form part permit plan must drawn scale dimension three copy must provided plan must generally accordance landscape plan prepared habitat dated december 2005 substituted vcat hearing 19 january 2006 modified reflect modification required condition 1 4 prior issue building permit owner property must pay following development contribution maribyrnong city council plan 5 community infrastructure contribution 450 per net newdwelling total contribution payable maribyrnong city council based three net new dwelling 1350 5 occupation development start later date approved responsible authority writing landscaping work shown endorsed plan must carried completed satisfaction responsible authority 6 development permitted permit commenced must continued completed satisfaction responsible authority 7 landscaping shown endorsed plan must maintained satisfaction responsible authority including dead diseased damaged plant replaced 8 wall boundary adjoining property shall cleaned finished satisfaction responsible authority 9 vehicular crossing must constructed road suit proposed driveway satisfaction responsible authority 10 disused redundant vehicle crossing must removed area reinstated kerb channel satisfaction responsible authority 11 site must drained satisfaction responsible authority 12 storm water run site must cause adverse impact public adjoining site council asset stormwater paved area drained underground storm water system cut fill structure must adversely affect natural storm water runoff adjoining property 13 polluted sediment laden runoff discharged directly indirectly council drain watercourse development 14 permit expire one following circumstance applies development started within two 2 year date permit development completed within four 4 year date permit responsible authority may extend period referred request made writing permit expires within three month afterwards note application assessed clause 55 rescode provision maribyrnong planning schemechristina fongmemberappearances applicantmr john cicero solicitor best hooper lawyer called mr bowden town planner give evidence responsible authoritymr david song consultant town planner aspect planning respondentmr chris laffey selwyn custance associate town planner appeared behalf pietro angelina nido reasons1 application undersection 77of theplanning environment act1987 |
Coastline Constructions (Aust) Pty Ltd & Ors v Kakavas & Ors [2009] NSWSC 1438 (18 December 2009).txt | coastline construction aust pty ltd or v kakavas or 2009 nswsc 1438 18 december 2009 last updated 21 december 2009new south wale supreme courtcitation coastline construction aust pty ltd or v kakavas or 2009 nswsc 1438jurisdiction file number 14406 07hearing date 24 august 2009 25 august 2009 26 august 2009 27 august 2009 28 august 2009 2 september 2009judgment date 18 december 2009parties first plaintiff coastline construction aust pty limitedsecond plaintiff cracker corporation pty ltdthird plaintiff cross defendant jarrod mccrackenfirst defendant cross claimant harry kakavassecond defendant william kerwickthird defendant jerry pilarinosjudgment schmidt jlower court jurisdiction applicablelower court file number applicablelower court judicial officer applicablecounsel plaintiff mr mr gracie mr da neggofirst defendant cross claimant mr robinson sc mr darke m bamptonsecond defendant mr r montgomerythird defendant mr r horsleysolicitors plaintiff crisp legalfirst defendant cross claimant gells lawyerssecond defendant ghs legalthird defendant horowitz bilinskycatchwords contract general contractual principle three oral agreement offer acceptance agreement contemplating execution written agreement two agreement found sale property executed contract substantial money advanced acknowledgment debt termination agreement party contract order sought non party refused breach second agreement established order third agreement established breach contract claim dismissed restitutio resulting unenforceable incomplete contract recovery money paid order madeconversion intangible property claim dismissedtort assault general principle exemplary aggravated damage provocation criminal proceeding order exemplary damage order made claim assault threat claim dismissedprocedure supreme court procedure amendment claim conversion leave grantedrestitution recovery money paid duress compulsionlegislation cited civil procedure act 2005evidence act 1995land sale act 1984 qld property law act 1987 qld category principal judgmentcases cited abadeen group pty ltd v bluestone property service pty ltd brown v hodgkinson 2009 nswca 386aon risk service australia limited v australian national university 2009 hca 27dennis v australian broadcasting corporation 2008 nswca 37emilien v cabbala 1989 1 qd r 620ferguson v eakin 1997 nswca 106fontin v katapodis 1962 hca 63 1962 108 clr 177freedom v ahr construction 1987 1 qd r 59gray v motor accident commission 1998 hca 70 1998 196 clr 1lamb v cotogno 1987 hca 47 1987 164 clr 1lumbers v w cook builder pty ltd 2008 hca 27 2008 232 clr 635masters v cameron 1954 hca 72 1954 91 clr 353niven v s 2006 nswca 338queensland v j l holding pty ltd 1997 hca 1 1997 189 clr 146risk service australia limited v australian national university 2009 hca 27roxborough v rothmans pall mall australia ltd 2001 hca 68 2001 185 alr 335state nsw v riley 2003 nswca 208 2003 57 nswlr 496telecom vanuatu ltd v optus network pty ltd 2005 nswsc 951telecom vanuatu ltd v optus network pty ltd 2008 nswsc 1209wilson v darling island stevedoring lighterage company limited 1956 hca 8 1956 95 clr 43texts cited decision judgment 114 supreme courtof new south walescommon law divisionschmidt jfriday 18 december 200914406 07 coastline construction aust pty ltd or v harry kakavas orsjudgment1 honour third amended statement claim filed court course hearing plaintiff claim total sum 5 250 000 plus interest accordance withs 100of thecivil procedure act2005 |
Department of Family and Community Services & Berney [2015] FamCA 383 (22 May 2015).txt | department family community service berney 2015 famca 383 22 may 2015 last updated 1 july 2015family court australiadepartment family community service berney 2015 famca 383family law child abduction hague convention wrongful removal retention precondition return order parent lived canada child consent father mother left australia child receiving removal notice issued canadian border service father asserted understood mother would make application permanent residence return canada mother informed father time arrival australia intend return mother relied upon defence grave risk pursuant toregulation 16 3 b thefamily law child abduction convention regulation 1986 cth mother offered canadian temporary residence permit valid six month mother raised concern would supported canada whilst awaiting determination custody proceeding report family consultant showed child would suffer considerable psychological harm separated mother order made return child canada upon satisfaction precondition regarding support mother child canada family law child abduction convention regulation 1986 cth regs 15 1 c 16 3 b hague convention civil aspect international child abduction 1980director general department family community service v davis 1990 1990 flc 92 182dp v commonwealth central authority 2001 hca 39 2001 27 fam lr 569mcdonald director general department community service nsw 2007 famca 1400 2006 flc 93 297re abduction undertaking 1995 1 flr 1021sca v sigouras 2007 famca 250 2007 37 fam lr 364wolford attorney general department 2014 famcafc 197applicant department family community servicesrespondent m berneyfile number syc862of2014date delivered 22 may 2015place delivered sydneyplace heard sydneyjudgment le poer trench jhearing date 8 may 2014 27 february 2015 8 may 2015 representationcounsel applicant mr harpersolicitor applicant department family community servicescounsel respondent m boylesolicitor respondent legal aid nsworders 1 applicant respondent mother make arrangement necessary ensure return child b child born 2012 canada company respondent mother upon following condition first met 2 pre condition met child returned canada pursuant order follows mr c father pay airfare respondent mother child travel australia canada b father commenced proceeding canadian court served respondent mother copy proceeding might enter appearance file response return canada c father move canadian court instituted parenting proceeding appoint date urgent hearing necessary interim order providing proper support respondent mother child together interim order party might seek court upon court allocating date father provide notice date together copy court order made relevant date prior respondent mother required leave australia canada child pursuant order made herein father provide sum cad 1 000 respondent mother depositing sum bank account nominated respondent mother canada event respondent mother access bank account canada fund deposited equivalent australian dollar australian bank account nominated respondent mother fund intended cover accommodation cost respondent mother child upon immediate arrival canada period may take find suitable affordable rental accommodation occupy e father pay lawyer sum cad 2 094 sum retained upon trust father respondent mother paid respondent mother rate cad 349 per week time arrival respondent mother child canada time canadian court ceased matter make order relation fund maintenance payment made respondent mother father lawyer advise respondent mother writing hold fund instruction pay respondent mother required pre condition respondent mother child required travel canada pursuant court order 3 party liberty relist event order required implement return order 4 event return order implemented expiration six calendar month date hereof failure condition set herein met return order date stand discharged notedthat publication judgment court pseudonymdepartment family community servicesv berneyhas approved chief justice pursuant tos 121 9 g thefamily law act 1975 cth family court australia sydneyfile number syc 862 2014department family community servicesapplicantandms berneyrespondentreasons judgmentintroductionthis application thefamily law child abduction convention regulation 1986 cth hereafter referred regulation return child convention partner state canada applicant delegate australian central authority namely director general nsw department family community service department respondent m berney mother child b child born 2012 specifically department seek order department mother make arrangement necessary ensure return child b child born 2012 canada forthwith company person upon condition court deems necessary application filed 18 february 2014 reason seen application able afforded expeditious determination regulation requires matter listed hearing 8 may 2014 day adjournment number reason one preparation report family consultant party agreed purpose department pursuing application court could informed mother permitted canadian government return canada least purpose allowing country court determine whether permitted remove child permanently australia circumstance alone unusual feature case matter next court 19 june 2014 direction following consent order made consent ordered thatthat existing passport mother m berney held registry family court australia released mother legal representative purpose applying canadian visa noting passport expired simultaneously order 1 mother required apply new australian passport urgent basis within 3 working day receipt new australian passport mother provide new passport legal representative mother legal representative attempt apply canadian visa mother new australian passport order 4 complied mother legal representative lodge mother new australian passport family court registry sydney leave given applicant release report prepared m dated 5 june 2014 commonwealth central authority canadian central authority father legal representative father matter listed hearing request party end 2014 however due unavailable court date matter finally heard 27 february 2015 party written submission provided 13 march 2015 background factsthe father mr c born 1992 currently 22 year age occupation listed tradesman resides e town f state canada mother born 1993 currently 21 year age occupation listed home duty resides g town rural town state new south wale australia child born 2012 e town h state canada currently three year age canadian citizen australian citizen affidavit evidencethe department filed form 2 application 18 february 2014 document alleged wrongful retention within meaning regulation occurred 18 september 2013 parent met january 2011 commenced cohabitation e town march 2011 child born e town 2012 parent child lived e town mother travelled australia child 23 july 2013 9 january 2013 mother told father visa permit remain canada day mother australian passport confiscated canadian authority 25 february 2013 mother assisted father submitted application residency canadian department citizenship immigration acknowledged 23 april 2013 mother received removal notice issued canadian border service 27 february 2013 mother child left canada australia 23 july 2013 father signed handwritten letter giving consent child travel australia mother father asserted understood mother would return canada make application permanent residence 18 september 2013 father asserts mother informed facebook intend return canada intended apply australian citizenship child 6 november 2013 conversation took place via facebook mother reiterated intention remain australia 11 april 2014 mother filed form 2a answer cross application document sought application filed department 18 february 2014 dismissed identified relied upon theregulation 16 3 b defence grave risk regulation provides 3 court may refuse make order subregulation 1 2 person opposing return establishes b grave risk return child convention would expose child physical psychological harm otherwise place child intolerable situationthe mother filed affidavit 11 april 2014 set following mother travelled canada 2009 reside mother mother new husband canadian citizen mother attended school two period time undertook cash hand work time held appropriate visa live work canada mother state wished return australia however neither mother father australia said could afford air fare mother relationship mother deteriorated time mother started relationship father mother moved home father shared father mother father obtained accommodation two occasion however trouble meeting household bill consequently unable live independently father father child born 2011 mother entitled canadian health care belief cad 10 000 hospital bill outstanding birth child january 2013 mother contacted canadian immigration authority informed residing country illegally passport confiscated required attend immigration office city f week lodged application permanent residency naming father sponsor april 2013 mother say advised required leave canada said told would need make application residency canada outside canada say also told would able enter canada expiration 12 month departure canada mother report canadian authority said would pay airfare enable leave canada mother father became engaged june 2013 mother left canada 23 july 2013 mother say father signed form allow child leave mother mother resided g town nsw since return australia life father wife receives financial support australian government mother state two month wish relationship father anymore told via facebook also told wished stay australia mother set child difficulty delayed speech waiting list see paediatrician treatment mother also set concern permitted enter canada return order made also raise concern would supported whilst awaiting determination custody proceeding relation child 28 april 2014 department filed affidavit attached document set following information annexure contained letter state h central authority relation mother ability obtain permission enter canada period exclusion subject exclusion period stated one year 23 july 2013 letter stated mother could make application authorisation return canada temporary resident permit letter advised canadian central authority could send copy australian court order citizenship immigration canada seek expedite application however ability state application would granted annexure c affidavit contained another letter state h central authority provided information relation authorisation return arc letter stated arc entitle recipient right work study receive social benefit also noted canadian government spent money remove foreign national country would required repay money spent removal stated arc merely permitted recipient enter country relation temporary residence permit trp letter stated permit issued maximum three year expired recipient left country unless permitted leave enter trp holder may obtain work permit trp valid longer six month extension may granted trps however processed case case basis permanent residency application would dealt case case basis entry canada following expiration exclusion period 23 july 2014 would dependent mother satisfying visa officer number factor including enough money support family member canada annexure affidavit filed department 28 april 2014 affidavit father sworn 24 april 2014 affidavit amongst thing answered affidavit mother sworn 11 april 2014 importantly determination father say paid hospital bill arose birth child note child born 2012 24 april 2014 two year later father evidence suggests paid nothing towards satisfying debt say making arrangement bill paid full child medical insurance medical service plan state h sign form rather signed piece paper allowing child travel australia father living respondent mother canada father asserts time child removed canada mother make application return canada child expiration 12 month father say pay bill mother past take offer support mother canada father say mother may eligible government payment care canadian child reliable evidence need provided relation assertion father work 15 20 hour per week winter 35 hour per week summer 1 may 2014 mother filed affidavit m m sworn 30 april 2014 m canadian lawyer specialising canadian immigration law m attached document set following information exhibit c affidavit contained letter addressed family court australia m corporate immigration law firm canada letter set mother potential eligibility permanent residency canada set mother eligible permanent residency spouse relationship father may ineligible sponsor party relationship mother mother would eligible sponsor mother application permanent residency indication mother mother disclosed mother dependent time made application residency 2013 consequently mother would considered member family class mother may make application permanent residency based humanitarian compassionate ground canadian citizenship immigration department could take account hardship father child mother mother application granted canadian law requires best interest child given substantial weight application however consideration may outweigh consideration mother previous disregard canadian immigration law letter also addressed mother option returning canada temporarily m set concern immigration officer might considering whether mother allowed country arc authorization return canada trp included mother insufficient financial mean support whilst canada mother previously overstayed visa canada might perceived concern mother wish stay permanently due father child nationality previous permanent residency application mother limited tie australia way property job education enrolment andthe mother pay cost removal canada relation application mother reside temporarily canada obtain work permit m set mother may refused may perceived genuine temporary resident due previous stay non payment previous cost removal canada could result inadmissibility basis comply immigration regulation requiring payment whether mother would able claim social benefit matter outside m experience provincial rather federal matter note mother offered multiple entry temporary resident permit valid six month evidence offer contained letter dated 24 february 2015 annexed affidavit mr j affirmed 25 february 2015 condition attach issue permit trp document issued mother upon arrival canada mother may apply extension trp may apply work permit may apply permanent residence humanitarian compassionate ground hearing 8 may 2014the matter listed final hearing 8 may 2014 hearing became apparent insufficient evidence court relation ability mother return canada court require child returned effect child removed mother care mother return canada child court required child return made following order relation obtaining report family consultant family consultant requested prepare report provides opinion regarding matter given circumstance child b born 2012 life given history care exposure carers thus far life ass nature extent bond observed child mother m berney born 1993 opine impact upon child separation mother opine impact upon child increasing time separation mother opine whether child would exposed psychological harm removed care mother different country time period one week period 2 week period excess 2 weeksfor purpose providing opinion point iv assume child would cared father possibly assistance maternal grandmother father expected reside childopine level psychological harm child could sustain removed mother care period time referred point iv abovein circumstance separation mother child would opine whether would grave risk exposing child psychological harm circumstance mother would remain australia child would canada answer question affirmative please provide expert opinion explain ass risk level circumstance foreseen fact available opine could create intolerable situation child order return made 42 party also agreed would contact canadian authority order obtain information mother previous application permanent residency well obtaining information ability mother return canada purpose litigating parenting proceeding court stood matter list whilst matter addressed evidence first hearingdirect judicial communicationon 29 may 2014 consent party caused email sent judge state h jurisdiction way direct judicial communication via international hague network judge made direct request australian network judge justice bennett forwarded request information canadian network judge via route received reply request contained following question agreed party 1 seeking ascertain quickly contested parenting case could determined circumstance child returned canada pursuant hague convention order could provide detail length time estimated determine application 2 condition return order made canadian parent commence parenting proceeding child returned canada possible proceeding allocated particular judge could ensure proceeding given expedition 3 absence mother obtaining assistance legal aid assistance could provided court course parenting proceeding litigation e pro bono assistance referral 4 whether mother could participate electronic mean event cannot return canada 30 may 2014 justice butler supreme court state h sent via justice bennett following response question 1 seeking ascertain quickly contested parenting case could determined circumstance child returned canada pursuant hague convention order could provide detail length time estimated determine application cannot answer precision depends court application brought also particular step required case apparent stage two level court state h case could brought judge state h supreme court deal issue arising family dispute state h provincial court also hear parenting issue possible forum case would le expensive route party cannot give timeline would take pas email question judge nancy phillips court give better answer would happen action brought court supreme court provide relief relation property divorce also inherent jurisdiction father need seek relief area would want pursue case court filing party make decision court file action supreme court would ordinarily take several month get interim custody application heard longer final trial however possible case expedited reason deal response second question 2 condition return order made canadian parent commence parenting proceeding child returned canada possible proceeding allocated particular judge could ensure proceeding given expedition short answer question yes would ask chief justice direct case management judge appointed often done would judge consultation party set schedule filing pleading set hearing interim application trial 3 absence mother obtaining assistance legal aid assistance could provided court course parenting proceeding litigation e pro bono assistance referral mother could apply legal aid court involved process would suggest make initial contact central authority m k know m k frequently assist party filing article 16 application state h access legal aid may provide similar assistance someone faced article 16 application foreign jurisdiction best alternative contact state h justice access centre funded province state h provide legal advice information accessing pro bono service also provide assistance litigant representing court 4 whether mother could participate electronic mean event cannot return canada might possible attend hearing phone video proper facility available decision whether litigant could appear participate electronic mean would made judge assigned case report family consultantthe family consultant produced report dated 5 june 2014 family consultant observed mother child space hour observed mother interacted well child mother child appeared ease family consultant stated observation made suggested child attached mother observed child problem language mother told family consultant child waiting list see paediatrician relation speech eating issue mother appears child primary carer birth although family consultant declined comment precise nature child attachment mother short observation stated b attached mother regular frequent loving contact young greatest predicator psychological emotional health grows older corollary separation would high predicator opposite family consultant opined likely child experienced significant loss left father behind canada separated mother would feel enormous loss akin felt loved one dy even though father love child may competent carer loss experienced child could compensated father presence family consultant stated separation primary carer begin felt child within one day stated child would significantly negatively impacted upon separation mother said grief necessarily increase lessen impact time go pathway linear greatest impact especially child may beginning shock damage may irreparable sudden monumental loss childhood particularly early childhood especially relationship secondary carer serve buffer usually lifelong impact physiologically well psychological family consultant said electronic communication would comfort child separated mother could fact cause grief become worse may cause ask choosing family consultant concluded b would significantly negatively impacted separation mother separation period longer day cause distress worsen time loss mother exposure unfamiliar people rather change location would cause child distress length separation period longer one day would relevant factor child grief relationship child father eroded separation extent would see father buffer pain losing mother maternal grandmother likewise currently significant attachment andthe level psychological harm child would considerable affidavit evidenceon 4 november 2014 department filed affidavit mr l attached following document annexure contained letter dated 10 october 2014 state h central authority australian central authority letter set mother longer needed apply arc trp exclusion period expired would eligible canada basis australian passport however certain admission canada certain non payment mother removal cost matter advised would best addressed attempt return made stated employee canada border service agency agency control entry country discretion allow person canada temporary resident duration permit light possible mother may denied entry canada letter advised mother state return canada valid reason returning wish reside permanently advised carry order court return child position show support financially stay 25 february 2015 department filed affidavit sworn mr j attached following document annexure affidavit contains letter dated 24 february 2015 central authority citizenship immigration canada letter stated multiple entry trp valid six month authorised mother would issued mother arrival canada mother would also ability extend permit apply work permit letter stated mother may able apply permanent residence humanitarian compassionate ground mother filed affidavit 18 november 2014 therein set current living arrangement partner child stated child attending day care two day per week speech improved since commencing stated eating improved also mother said contacting father skype phone per fortnight could talk child said session 20 minute long child played block time father watched say much since september 2014 mother series issue phone prevented session set alternative attempted facilitate contact relation financial situation mother set benefit receives centrelink total 1 175 per fortnight stated payment would cease child become temporary australian resident dual australian canadian citizen mother set expense bank balance stated saving say able pay bill cad 1 500 removal canada mother state received letter 16 september 2014 canadian consulate general stated would eligible government benefit canada said way supporting travel canada 20 february 2015 department filed affidavit father affidavit father said 22 year age employed pty ltd three year father say take full responsibility mother living expense come canada child father said take full responsibility payment cad 1 500 bill canadian immigration submissionsthe departmentthe department made following submission 28 may 2014 submission made circumstance mother ability return canada known nonetheless department relies submission summarise follows relation mother assertion would grave risk harm child return canada mother absence department set following counsel referred todp v commonwealth central authority 2001 hca 39 2001 27 fam lr 569which state narrow construction 41 judgment full court family court give rise first matter consideration dp v commonwealth central authority said strong line authority within australia reg 16 3 b exception narrowly construed exactly meant saying reg 16 3 b narrowly construed self evident face reg 16 3 b present difficult question construction ambiguous burden proof plainly imposed person opposes return must established clearly identified grave risk return child would expose child certain type harm otherwise place child intolerable situation requires prediction based evidence may happen child returned case person opposing return raise exception court cannot avoid making prediction repeating court country child removed retained inquire best interest child exception requires court make kind inquiry prediction inevitably involve consideration interest child 42 necessarily seldom certainty prediction essential however observe certainty required required persuasion risk warrant qualitative description grave leaving aside reference intolerable situation confining attention harm risk relevant limited harm actually occur extends risk return would expose child harm 43 established grave risk exposure future harm may well true say court persuaded without clear compelling evidence 31the bare assertion person opposing return fear child may well sufficient persuade court real risk exposure harm 44 consideration however warrant conclusion reg 16 3 b given narrow rather broad construction circumstance evident choice made narrow broad construction regulation meant saying given narrow construction must rejected exception given meaning word require 45 say however reg 16 3 b find frequent application well nigh inevitable child taken one country another without agreement one parent suffer disruption uncertainty anxiety disruption uncertainty anxiety recur may well magnified return country habitual residence regulation 16 3 b art 13 b convention intend refer kind result speak grave risk child exposure physical psychological harm return submitted nothing mother material would support submission would grave risk child submitted canadian authority would deal appropriately issue arising child return submitted mother case must absence mother would place child intolerable situation court attention drawn todirector general department family community service v davis 1990 1990 flc 92 182 davis set 78 228 per nygh j emphasis added event since convention concerned allocation judicial responsibility determining issue regarding welfare child issue full court also pointed ingsponeris matter appropriate court term convention english court country also alleged honour court child result order return would separated mother mother would able accompany child certain extent situation present analogy situation court appeal inc v c lordship lord justice butler sloss pointed p 661 obviously serious consideration factor exists case stress evidence exist created unilateral conduct applicant would ill behove party rely fact created situation would prevent compliance convention would lordship pointed drive coach four convention least respect application relating young child view difference principle person feel psychologically unable return country habitual residence person financially unable alleged case return united kingdom clearly desirable hope arranged either central authority way child return united kingdom company mother view possible arrange sincerely hope fact mother cannot accompany child reason non compliance clear obligation rest upon court country term convention note indavisthe evidence relied upon trial judge determine child would grave risk psychological harm return order made substantially different evidence family consultant provided subject case submitted mother established could travel canada child fact alone would enliven court discretion decline order return know would agree submission however transpired mother able return canada e permitted canadian government authority case determined 6 march 2015 department provided submission submitted report family consultant added nothing substance case agreeing removing child le three year age primary carer would cause harm submitted paragraph 19 state harm child would major psychological harm huge psychological blow disregarded matter within family consultant expertise accept submission challenge made qualification family consultant prepared report objection taken report part thereof basis let alone report outside expertise expert submitted decline return child based age child separation said child carer undermines efficacy thehague convention civil aspect international child abduction 1980 convention submitted nothing novel case possibility separation primary carer needed subvert application convention would unworkable submitted circumstance child age four might separated carer would exempt convention intent convention writer pause note submission nothing novel case view unusual fact case experience novel fact canadian authority caused mother transpires child time objective view inextricably attached mother removed canada government paid mother child b probably travelled free fly australia father consented child travelling mother would interesting know whether canadian authority would deported mother event father consenting child accompanying mother australia nonetheless eventuate circumstance mother removal canada father could known whether mother would future time permitted enter canada doubt expectation would occur expiration 12 month relying information gleaned time consequence canadian central authority instrument canadian government seek australian authority apply convention circumstance another instrument government deported mother child clearly emotionally dependant upon mother accompanied canada party case recognise attachment child mother desirability unnecessarily breaking bond given tender age consequent upon realisation case taken much longer determine usual disposition application filed regulation great credit mother agreed return canada child end made necessary application canadian government permit admission country purpose participating parenting litigation country counsel drew court attention tosca v sigouras 2007 famca 250 2007 37 fam lr 364at 384 bennett j said relation reg 16 3 b regulation requires prediction based evidence whatmayhappen child returned case person opposing return raise exception court cannot avoid making prediction repeating court country child removed retained inquire best interest child exception requires court make kind inquiry prediction inevitably involve consideration interest child submitted statement represents high water mark enquiry arrangement child return requesting jurisdiction submitted may legitimate court consider harm child would suffer period departure australia hearing matter canadian court however matter canadian court delay inefficiency court australian court judge submitted evidence make clear mother able enter canada child father promised take full responsibility mother living expense canada submitted circumstance grave risk child child returned canada motherthe mother relied case outline dated 28 may 2014 updating submission dated 6 march 2015 case outline dated 28 may 2014 set following submission mother submitted return child canada would put grave risk physical psychological harm would place intolerable situation due mother inability return child submitted mother residential situation canada making due mother mother step father making proper application canadian authority submitted father content mother take child australia without agreed return date knowing child would returned least year submitted father offered condition court order return submitted financial bar mother returning canada mother submitted condition court could make would protect child grave risk psychological harm outside party power ensure mother obtains visa enter canada court exercise discretion order child returned subsequent submission made mother offered temporary resident permit enter canada remain six month mother temporarily exempt pay removal cost validity temporary resident permit see exhibit r3 evidence provided state mother canada apply permission remain canada would granted give access government based financial benefit pension medical service 6 march 2015 mother made submission relation report family consultant submitted report demonstrates child would exposed grave risk psychological harm separated mother counsel mother drew court attention family consultant report relation effect child physical psychological development event separation submitted event mother travel canada child permitted temporary residence permit permitted remain canada six month permitted work note evidence apply work permit mother saving reliant centrelink payment submitted father assertion meet mother living expense canada supported evidence afford counsel mother drew court attention mother affidavit filed 11 april 2014 set financial difficulty mother father experienced living together submitted father conceded number point relation matter including work weather dependent mother father problem paying bill together lived parent different time would afford pay rent cad 10 000 owed hospital cost child birth father said meet cost andthe mother owes cad 1 500 canadian government cost removal canada father said meet cost submitted mother eligible legal aid canada proceeding take place submitted timeframe completion hearing canada submitted mother visa valid six month guarantee extension mother permitted remain canada following hearing parenting matter submitted light following fact court would satisfied mother established return order would expose child grave risk psychological harm mother would able support financially canada evidence father able support financially child would suffer actual psychological harm separated mother father could ameliorate condition court could make would ameliorate risk child would exposed court order return andthat father agreed mother leaving canada child aware would eligible return least one year andit submitted court accordingly dismiss application department discussionthe evidence satisfies mother unable enter canada accompanying child return country pursuant court order grave risk return order would expose child psychological harm otherwise place intolerable situation equally return order placed mother position unable supported provision sufficient adequate housing fund attend personal need child pending canadian court able hear case medical cost indemnification would also expose child grave risk physical psychological harm possible probable condition could made prerequisite return order would cause court make return order notwithstanding mother making defence referred matter need considered court assistance submission possibly evidence reached determination relying evidence family consultant together incontrovertible fact potential carers child canada virtual stranger concluded reality mother permitted travel canada accompany child canada return trip fact therefore mean find may longer grave risk would prevailed mother unable enter country provided satisfactory arrangement made support mother child canada pending canadian court able hear party parenting proceeding seen hereafter concern father able satisfy necessary condition circumstance time specified enable father comply condition imposed event failing order return lapse discharged discussed time last hearing matter propose list matter submission evidence necessary relative imposition condition satisfied prerequisite implementation return order mother argues department established mother child properly supported canada awaiting canadian court determination custody access arrangement child future mother say evidence father could fulfil ambitious promise support mother child canada say evidence show father unable properly provide care mother child born evidence father job whilst mother resided canada child born accept mother say father financial circumstance apparent inability support mother child however mean given opportunity could prevail family others assist time necessary canadian court hear parenting case aspect father evidence suggest disingenuousness matter follows evidence contributed financially towards support child since child left canada father offered pay canadian government deportation cost mother cad 1 500 yet evidence done notwithstanding child born 2012 father paid nothing towards hospital bill generated birth said affidavit making arrangement pay account evidence court seems mother primarily responsible meet payment thus upon return reasonable assume hospital authority seek pursue payment notwithstanding evidence father mother financial circumstance cohabitation mother deported canada father provided acceptable evidence might satisfy court capacity financially provide mother child upon return canada scope condition subject decision australian convention country court inmcdonald director general department community service nsw 2007 famca 1400 2006 flc 93 297 mcdonald full court considered decision dealing imposition condition full court said extent jurisdiction impose condition discussed majority judgment high court inde l v director general new south wale department community service 1996 hca 5 1996 187 clr 640 139 alr 417 20 fam lr 390 flc 92 706 brennan cj dawson toohey gaudron mchugh gummow jj said citation omitted also noted present form effect reg 15 1 provide making order relation return child australia court may include order condition court considers appropriate give effect convention delivering leading judgment supreme court canada inthomson v thomson la forest j said given preamble statement interest child paramount importance court jurisdiction deemed entitled require undertaking requesting party provided undertaking made within spirit convention see l child abduction psychological harm c v c minor abduction right custody abroad p v p minor child abduction minor abduction use undertaking requirement art 12 convention authority concerned shall order return child forthwith complied wrongful action removing party condoned long term best interest child left determination court child habitual residence short term harm child ameliorated supreme court canada english court appeal inc v c minor abduction right custody abroad concerned convention application raising issue whether return child would expose child grave risk psychological harm latter decision undertaking given court appeal father seeking return child australia butler sloss lj said undertaking crucial welfare child sufficiently disrupted removal home country need priority easy secure return home mother primary caretaker throughout short life since parting parent three access period sole caretaker possible sake help readjust return father instrumental putting obstacle way easy return make difficulty child back essential judge hearing future issue custody access indeed australian family court opportunity consider welfare child paramount without emergency application relating manner return child impossible identify specific detailed criterion govern exercise power whereby court may impose condition removal child court considers appropriate give effect convention many criterion may applicable particular case illustrated passage canadian english decision basic proposition like discretionary power given term court exercise discretion judicially regard subject matter scope purpose regulation inre abduction undertaking 1995 1 flr 1021 1025 butler sloss lj explained role undertaking eliminating alleviating risk returning child ladyship said perhaps helpful remind engaged hague convention application position undertaking condition attached art 12 order return requirement make return child easier provide necessity roof head adequate maintenance etc court habitual residence become seized proceeding brought jurisdiction court must careful way usurp thought usurp function court habitual residence equally requirement made country must elaborate implementation might become bogged protracted hearing investigation undertaking place arrangement designed smooth return protect child limited time foreign court take must used party try clog fetter particular delay enforcement paramount decision return child would helpful realistic time limit compliance undertaking included order return child absence specified time clearly court would consider reasonable time allow case drag repeated application court fifth meeting special commission review operation hague convention held hague november 2006 australia belgium represented commission noted 1 8 1 court many jurisdiction regard use order varying name eg stipulation condition undertaking useful tool facilitate arrangement return order limited scope duration addressing short term issue remaining effect time court country child returned taken measure required situation keeping spirit 1980 convention seems u condition imposed alleviate would otherwise grave risk return child condition need clearly defined capable objectively measured whether condition fulfilled condition need met return take place event met order need contain mechanism clearly recognises return longer required take place need done within tight timetable meet requirement convention founded upon concept prompt return place habitual residence appropriate protect child harmful effect wrongful removal retention recently house lord inin child 2006 ukhl51 set aside order required return child romania four year removed country lord hope craighead said 4 preamble convention indicates purpose protect child harmful effect wrongful removal assumption remedy prompt return proceeds state child returned state habitual residence fault child whose return sought case settled long country assumption scarcely tenable whilst delay case parallel decision house lord barely six month age removed belgium 18 month ago assumption return belgium best advance welfare cannot readily made case baroness hale richmond discussing application exception mandatory return child said 51 must circumstance summary return would inimical interest particular child would also contrary object convention require baroness hale went say par 52 thus english court sought avoid placing child intolerable situation extracting undertaking applicant condition child live return relying court requesting state protect many case sufficient fact usually sufficient avoid risk mean invariably one intended instrument designed secure protection child harmful effect international child abduction turned instrument harm ladyship seems contradict proposition advanced appropriate case undertaking condition may sufficient alleviate article 13b defence say par 55 common article 13 case divide issue two first one called defence provided made fact secondly court exercise discretion order summary return child possible envisage circumstance child returned despite consent acquiescence party child objection noble learned friend lord brown eaton heywood pointed course argument inconceivable court reached conclusion grave risk child return would expose physical psychological harm otherwise place intolerable situation would nevertheless return face fate baroness hale concludes par 68 reminding reader convention require return every child brought country without consent parent case albeit number required ultimately inmcdonaldthe full court took view many difficulty involved establishing satisfactory precondition enable return child belgium proper exercise discretion grave risk exception established refuse return order matter therefore need put place pre condition return ensure grave risk established guarded time canadian court exercise jurisdiction reposed matter emerge probably requiring consideration court looking possible pre condition return order follows provision sufficient fund meet reasonable accommodation cost mother child period required canada court land make order albeit interim deal parenting financial support provision fund sufficient meet reasonable living cost mother time determination amount father contribute way child support provision meeting mother medical cost arise time canada mother submits need assistance lawyer represent canadian court evidence suggests eligible legal aid country propose make return order sought department subject precondition first met mother say many condition court circumstance dismiss application possible set precondition application dismissed regulation 15 1 c regulation reminds court obligation give effect convention considering imposition condition return order c include order paragraph b applies condition court considers appropriate give effect convention effect regulation together object regulation require view court formulate condition circumstance case possible wide ranging require discretion exercised refusal make return order condition concluded return order made subject appropriate condition imposed remediate potential child exposed risk emotional danger matter relisted order party address evidence submission deal question condition hearing 8 may 2015the mother relied affidavit sworn solicitor m maitland 30 april 2015 document specified condition would ask court impose condition deal following matter father required commence parenting proceeding relevant canadian court court notified upon mother arrival canada move court relocate child australia father also provide written confirmation father commencement proceeding within 14 day order court father meet outstanding cost cad 1 500 relevant canadian authority cost imposed upon mother deportation canada 23 july 2013 father cover cost air travel sydney canada mother child father pay provide mother open ticket air travel canada sydney mother child air travel used mother event canadian court permitting mother relocate child australia written consent father father pay cad 2 755 per month time mother required remain canada determination parenting proceeding canadian court mother seek payment way lump sum advance cover period 12 month residence canada currency parenting proceeding andthat father pay mother legal cost proceeding canada amount cad 30 000 paid way advance mother request required return canada sufficient fund meet reasonable cost living child asks expressed canadian dollar 940 per month cover two bedroom apartment 1 215 per month cover food cost 300 month utility expense 200 month health insurance 100 month public transport constitutes total sum cad 2 755 per month mother annexed affidavit list advertisement rental accommodation e town area ranging cad 722 month one bedroom apartment cad 939 month two bedroom apartment mother set detail calculated expense food household expense phone data utility cost sought department relies number affidavit first m n m n sworn 6 may 2015 legal counsel ministry justice province state h met father informed agrees commence family law proceeding provincial court state h canada within 14 day return order made australian court confirms mother approved entry canada without payment cad 1 500 bill member father family paid cad 200 fee required temporary resident permit issued mother attache affidavit email dated 6 may 2015 acting director immigration division case management branch canada confirming upon payment cad 200 fee cad 1 500 repayment longer required order mother enter canada father agrees pay airline ticket child return canada return order made say cannot afford pay flight mother well provide mother open ended ticket return sydney canada say mother apply order meet flight cost obtains order enabling remove child canada australia comply court order note offer statement comply court order seems incongruous statement could afford meet cost relation monthly amount sought mother support father say amount greater make wage month suggested mother could apply citizenship work permit arrives canada could also apply canadian court support order m n say relation legal expense father agree pay legal expense suggests mother might apply legal aid legal service society state h point party appear proceeding provincial court state h say duty counsel provide legal assistance qualify legal aid free charge department also relied affidavit father sworn 29 april 2015 attached copy maintenance calculation prepared solicitor say able pay amount stated calculation one well child medical service plan monthly premium also attached statement remuneration paid 2014 tax year annexure affidavit father somewhat difficult follow however seems monthly payment spousal support cad 217 may indicated child support payment cad 172 per month may indicated father statement remuneration paid 2014 year show gross income cad 19 779 income tax deducted cad 1 581 however evidence father winter month work roofer restricted income reduces accordingly winter month may sufficient income meet payment based annualised income figure department relied affidavit m k m k legal counsel ministry justice state h delegated central authority state h purpose convention advises medical service plan msp place state h resident paid respect child father entire time australia child returned state h msp insurance place return m k say provincial federal government canada provide non taxable monthly payment low income family website indicates person permanent resident citizen canada receive benefit mother return state h child found resident canada tax purpose different residency required immigration purpose may entitled receive fund account child include canada child tax benefit national child benefit supplement state h early child tax benefit good service tax credit m k say benefit could flow mother described exhibit affidavit father sworn 24 april 2015 showing entitlement cad 395 government benefit credit per month advised general minimum wage state h cad 10 25 per hour department 8 may 2015 filed submission relation condition court may impose pre condition return order affected department argues condition sought mother onerous mostly unable met father submitted condition sought invite inappropriate interference matter properly canadian court submitted condition go well beyond proper necessary protect child grave risk return expose physical psychological harm otherwise place intolerable situation department referred court 2014 decision full court inwolford attorney general department 2014 famcafc 197 case full court referred decisionsin mcdonald full court set paragraph 75 follows making easier child place habitual residence undertaking condition imposed unnecessary rather give effect abduction convention undermine department referred word butler schloss lj inre abduction undertaking 1995 1 flr 1021 1025 requirement make return child easier provide necessity roof head adequate maintenance etc court habitual residence become seized proceeding brought jurisdiction oral submission department put father might required file application obtain return date parenting proceeding canada department confirmed father position money pay bond submitted period six eight week required subject financial condition time might reasonably predicted would take parenting application canadian court submitted mother australian pension payment continue period six week following departure australia cad 1 240 per month source department conceded order made court return could constructed around proximity return date father application conceded father could required pay child support mother departs mother provided submission mother need front payment obtain housing immediately step plane canada answer question mother said clear whether able open bank account canada arrives country payment required pre condition could made conclusionthe condition opinion required imposed order uphold convention meet need child determined grave risk harm returned without mother mother canadian court hear parenting case follows father pay airfare mother child australia canada father commenced proceeding canadian court served mother copy proceeding might enter appearance file response return canada father move canadian court instituted parenting proceeding appoint date urgent hearing necessary interim order providing proper support mother child together interim order party might seek court upon court allocating date father provide notice date together copy court order made relevant date prior mother required leave australia canada child pursuant order made herein father provide sum cad 1 000 mother depositing bank account nominated mother canada event mother access bank account canada fund deposited equivalent australian dollar australian bank account nominated mother fund intended cover accommodation cost mother child upon immediate arrival canada period may take find suitable affordable rental accommodation occupy father pay lawyer sum cad 3 210 sum retained upon trust father mother paid mother rate cad 535 per week time arrival mother child canada time canadian court ceased matter make order relation fund maintenance payment made mother father lawyer advise mother writing hold fund instruction pay mother required pre condition mother child required travel canada pursuant court order mother need fund immediately available meet accommodation cost canada provision cad 1 000 view sufficient obtain hotel motel accommodation day mother search apartment rental accommodation mother receive income predicted reason cad 1 240 per month australian pension period six week receive cad 172 per month child support father cad 217 per month spouse support receive cad 395 per month canadian government payment making total cad 2 024 per month mother estimated monthly requirement canada follows expressed canadian dollar two bedroom apartment 940 per month ii food mother child 1 215 per month iii phone 300 per month iv health insurance mother child 200 per month v public transport 100 per month make total cad 2 755 per month thus seen available income short reasonable need expense might reasonably considered reducible cost rental mother opting one bedroom accommodation however even circumstance expense available income therefore need cad 731 per month cad 169 per week assuming able access immediately canadian benefit payment father spouse maintenance child support assessment reasonable mother able access fund sum cad 349 per week period six week following arrival canada weekly difference amount receive australian government payment weekly expense calculated calculating sum assumed certainty mother receiving australian government assistance six week period therefore cad 1 240 per month source cad 286 per week however certainty immediate access payment emanating canadian government father child support spouse maintenance reasonable assume payment may take week processed canadian government agency circumstance sum lodged father legal representative cad 2 094 represents six week cad 349 per week clearly mother permitted canadian court remove child canada purpose returning australia face hurdle meeting cost air transport consider appropriate pre empt decision canadian court require father meet cost return travel australia mother child pre condition return propose order return child child company mother canada upon pre condition met outlined certify preceding one hundred thirty eight 138 paragraph true copy reason judgment honourable justice le poer trench delivered 22 may 2015 associate date 22 may 2015 |
Neary v Treasurer of New South Wales [2001] NSWADT 161 (24 September 2001).txt | neary v treasurer new south wale 2001 nswadt 161 24 september 2001 last updated 3 october 2001new south wale administrative decision tribunal general divisioncitation neary v treasurer new south wale 2001 nswadt 161parties applicantvincent nearyrespondenttreasurer new south walesfile number 003394hearing date paperssubmissions closed 22 06 2001decision date 24 09 2001before britton judicial memberlegislation cited administrative decision tribunal act 1997freedom information act 1989cases cited mangoplah pastoral co pty ltd v great southern energy 1999 nsw adt 93rittau v commissioner police 2000 nswadt 186 watkins v chief executive road traffic authority 2000 nswadt 11kay 2 v department corrective service 2000 nswad 67kennedy v commissioner police 2001 nswadt 39chief executive sa trustee corporation v daykin 2000 nswadtap 20commonwealth australia v northern land council 1993 hca 24 1993 176 clr 604application access document cabinet documentsfreedom information act access document cabinet documentsjurisdictionmatter decision principal matterapplicant representative applicantin personrespondent representative respondentn sharp solicitororders decision review affirmed reason decision 1 decision concern application made unders 53of theadministrative decision tribunal act 1997 tribunal act vincent neary review decision treasurer nsw refusing access certain document sought mr neary freedom information foi request 28 september 2000 consent party matter determined paper background2 1 march 1997 thesydney morning heraldpublished story reported treasurer mr egan criticised accounting practice state rail authority sra june 1999 mr neary made foi application similar term present application effect simply add couple category document relating subject matter summary mr neary sought still seek document showed infrastructure fund used sra prop loss making passenger service creative accounting disguised true cost passenger rail service 3 12 july 1999 response 1999 foi request senior treasury official told mr neary document positively identified fell within scope request two document possible relevance supplied sought internal review original determination four document identified relevant application released 4 two document treasury paper entitled funding shortfall saving nsw rail entitities prepared cabinet standing committee budget meeting 12 december 1996 treasury paper entitled department transport sra rail entity interim budget review prepared committee meeting 17 february 1997 refused pursuant schedule 1 part 1 clause 1 thefreedom information act 1989 foi act basis prepared submission cabinet 5 two document minute cabinet committee meeting 12 december 1996 17 february 1997 refused pursuant clause 1 1 e schedule 1 basis cabinet record 6 25 february 2000 pursuant tos 124 4 thetribunal act director general cabinet office mr roger wilkins certified minute cabinet committee meeting together treasury paper prepared meeting cabinet document within meaning clause 1 schedule 1 thefoi act 7 mr neary applied adt review decision refuse access document 3 march 2000 matter came judicial member skinner extempore decision judicial member skinner held 124 certificate conclusive deprived tribunal jurisdiction review treasurer decision refuse grant access document sought dismissed application 8 28 september 2000 mr neary wrote office treasurer nsw seeking document eight separate category relating comment treasurer reported may 1997 9 response request previously noted similar term 1999 request office treasurer letter dated 20 october 2000 identified seven document relevant request press release dated 28 february 1997 treasurer previously disclosed mr neary cabinet submission referred cabinet minute referred addition draft cabinet minute meeting referred mr neary supplied press release previously refused access cabinet submission minute also time refused access draft cabinet minute basis 15 december 2000 mr neary made application adt review decision application 10 matter came planning meeting 16 february 2001 planning meeting applicant raised concern scope document covered 124 4 certificate subsequent meeting director general issued new 124 4 certificate 1 march 2001 proceeding respondent relies 1 march 2001 certificate longer press reliance 25 february 2000 certificate jurisdictional issue11 crown solicitor submits tribunal jurisdiction deal application 124 4 certificate applies document sought applicant section 124 4 thetribunal actenables director general cabinet office certify document cabinet document certificate conclusive fact authorises person would otherwise disclose document lodge tribunal refuse 12 mr neary hand contends tribunal pursuant tos 63of thetribunal act power determine application order disclosure exempt restricted document determines correct preferable decision 13 inmangoplah pastoral co pty ltd v great southern energy 1999 nsw adt 93the tribunal held power pursuant tos 63of thetribunal actto review decision agency refuse access exempt document decision followed number recent tribunal decision includingrittau v commissioner police 2000 nswadt 186 watkins v chief executive road traffic authority 2000 nswadt 11 kay 2 v department corrective service 2000 nswad 67 kennedy v commissioner police 2001 nswadt 39and appeal panel inchief executive sa trustee corporation v daykin 2000 nswadtap 20 date examination issue supreme court 14 crown solicitor submits case point wrongly decided submits discretion override agency decision refuse release exempt document notwithstanding provision ofs 63of thetribunal act summary submits power conferred upon tribunal unders 63of thefoi actto review agency foi application limited bys 124 1 thetribunal act section 124 1 provides nothing thetribunal act apart remaining provision ofs 124 authorises requires body person including tribunal release exempt document matter construction asserts crown solicitor effect ofs 124 1 tribunal power upon review conferred bys 63do extend release exempt document 15 second crown solicitor argues thats 55 thetribunal actclearly prohibits tribunal releasing exempt document section relevantly provides determining review application tribunal ensure reason decisionor otherwise disclose exempt material provision clearly directs tribunal disclose exempt document determining review application whether disclosing reason decisionor otherwise word otherwise wide import context contends crown solicitor extends disclosure exempt materialby mean including making order directing release 16 obviously live issue definitively resolved superior court decision made previously inmangoplahand case cited persuasive force member tribunal nevertheless given decision developed line authority mere isolated outbreak judicial activism independent tribunal member may expected give weight decision preceding attempt appropriate given case ensure consistency decision making think question mean definitively resolved stage appears absence binding authority contrary public interest consistent approach followed tribunal member follow themangoplahline authority relation question jurisdiction 17 member skinner dealt matter pursuant tos 63it seems would open crown solicitor argue application ought dismissed basis effect relitigation substantially issue subject mr neary previous application review mr neary application review dismissed basis 124 4 certificate barred proceeding hearing merit consideration substance mr neary application review themangoplahline authority correct must consider merit application reviewing decision18 object thefoi actare extend far possible right public obtain access information held government ensure record held government concerning personal affair member public incomplete incorrect date misleading 19section 16of thefoi actgives individual legally enforceable right given access agency document accordance act 20 pursuant tos 25 1 agency may refuse access document exempt document section 6 1 thefoi actdefines exempt document include document referred schedule 1 unders 61of thefoi act agency burden proving determination justified conclusive certificate 124 4 discharge onus 21 affidavit filed proceeding m gay bangrove executive officer office treasurer nsw deposed document described 124 4 certificate issued director general 1 march 2001 document identified office treasurer letter applicant dated 20 october 2000 relevant mr neary request document access refused basis evidence accepted document mr neary refused access covered 124 4 certificate exempt document 22section 25 4 thefoi actprovides agency shall refuse access exempt document including restricted document subject ministerial certificate practicable give access copy document exempt matter deleted b appears agency whether term application consultation applicant applicant would wish given access copy 23section 25gives decision maker discretion release exempt document follow established document exempt document decision maker must refuse access document although frequently case would view undermine objective act exercising discretion concerning exempt document decision maker must take object act well public interest example preserving integrity cabinet process 24 said would rare indeed exempt cabinet document especially one covered conclusive certificate disclosed foi applicant reason simple system government depends integrity proper functioning upon cabinet free deliberate crucial question day confidence deliberation conducted frankly best available information minister need able speak listen openly critically order arrive best possible decision capable reaching public interest confidentiality discussion essential critical 25 implied document document subject review nature exempt cabinet document rare event correct preferable decision disclose incommonwealth australia v northern land council 1993 hca 24 1993 176 clr 604 high court considering commonwealthfreedom information act emphasised need watertight protection cabinet deliberation 26 mr neary fighting long apparently bitter campaign prove allegation corruption malpractice within sra signalling section late 1980s clearly belief document seek foi application may provide evidence direct indirect contention regard whistleblower unjustly sacked part nsw public service government conspired 27 position judge truth otherwise belief clear document seek cabinet document exempt document document produced tribunal therefore opportunity examine would appear created treasury official late 1996 early 1997 appear anything corruption signalling section sra 1980s 28 treasurer press release 28 february 1997 reflects tone document one readily gather author treasury document admirer sra treasurer seems unlikely involved covering wrongdoing part sra official time exposing creative accountancy part sra public way press release following cabinet discussion december 1996 february 1997 29 understand thrust mr neary argument government minister cannot relied upon comply legal obligation law thus protect public interest taken action senior sra manager mr neary belief ought exposed punished maladministration contends tribunal ought therefore make correct preferable decision ordering disclosure document seek 30 seems card disclosure certain cabinet document would reveal sort criminal conspiracy minister public servant correct preferable decision would order disclosure document example one consider implication watergate history government united state given long standing tradition cabinet confidentiality collective responsibility ordinarily public interest cabinet document protected disclosure 31 case notwithstanding belief lengthy submission persuaded mr neary demonstrated card disclosure cabinet record seek would reveal directly indirectly misconduct part sra official minister belief shown relevant document made available 32 therefore affirm office treasurer decision refuse access document dispute |
N94_06545 [1995] RRTA 1402 (20 June 1995).txt | n94 06545 1995 rrta 1402 20 june 1995 refugee review tribunaldecision reason decisionrrt reference bn94 06545tribunal k byron memberdate 20 june 1995place sydneydecision tribunal find applicant people included application refugee affirms decision review 1 backgroundthe fact set heading issue applicant citizen fiji arrived australia date deleted inclusion may lead identification applicant previously lived australia 1982 date deleted 7 september 1992 applicant made application department immigration ethnic affair department recognition refugee applicant included husband daughter aged 7 son aged 3 application 4 december 1992 applicant interviewed officer department relation refugee status application 16 december 1992 decision made rejecting application 19 january 1993 applicant applied review existing review body decision review tribunalthe tribunal considers applicant husband child included decision refusing refugee status review application see decision tribunal constituted principal member bn93 00479 p 9 although applicant apply directly tribunal review tribunal satisfied applicant taken made valid application review decision refusing refugee status rrt reviewable decision see s 413 1 b c 411 1 migration act 1958 theact valid application review rrt reviewable decision made tribunal must review decision 414of theact 1 september 1994 application refugee status related entry permit treated application protection visa see 39migration reform act 1992 tribunal considers follows decision refusing refugee status treated reviewed tribunal decision refusing applicant husband child protection visa relevant lawa person granted protection visa certain requirement met s 31 3 65 1 theact r 2 03 cl 866 2 schedule 2 themigration regulation 1994 regulation one requirement protection visa applicant visa person australia protection obligation refugee convention amended refugee protocol s 36 2 5 1 theact cl 866 111 866 221 schedule 2 regulation australia owes protection obligation person refugee convention amended protocol see article 3 34 convention article 1 protocol convention amended protocol relevantly provides refugee person whoowing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country refugee definition issue tribunal therefore whether applicant husband child meet requirement refugee definition meaning term definition considered high court inchan yee kin v minister immigration ethnic affair 1989 hca 62 1989 90 169 clr 379 high court discussion far relevant present case referred later decision evidence tribunalthe applicant gave oral evidence tribunal hearing applicant husband attend hearing chose provide written submission tribunal tribunal access departmental file relating applicant refugee status application file provided tribunal secretary department see 418of theact file content include applicant refugee status application supporting document tape recording applicant interview departmental officer applicant review application tribunal considered content written submission tribunal applicant adviser dated 13 april 1995 attachment tribunal also considered evidence fiji general nature latter evidence obtained tribunal pursuant tos 425 1 b theact evidence tribunal applicant said held fear family well fiji applicant said fear related experience child fiji family experience fiji 1987 subsequently economic political problem fiji detail evidence matter set evidence applicantchildhood experiencesthe applicant gave tribunal account tragic childhood applicant told tribunal said evidence natural father chinese ethnicity natural mother melanesian ethnicity applicant said baby kidnapped natural parent father mother given father brother wife child applicant said contact since natural mother according applicant oral evidence adoptive parent migrated fiji without eight year old given another father brother brother already seven child according applicant insufficient money support child adequately applicant adopted child seen lowest priority education applicant said attendance school irregular result education patchy applicant said teased child school applicant described indian school performance school appearance applicant said told go back china according applicant result teasing attendance school became even irregular applicant said also verbally abused local market place appearance people threw rotten tomato applicant said interview fijian police concerned abuse applicant told tribunal sexually abused child applicant said men drank home second adoptive parent bad thing applicant said used go sleep hiding bed attempt avoid abuse applicant said abuse went live another father brother also sexually abused household worker came house applicant said order live household required work uncle nature workplace deleted inclusion may lead identification applicant applicant said sexually harassed worker workplace used hide nature hiding place deleted inclusion may lead identification applicant avoid applicant ten year old stage applicant 14 year old came australia first occasion applicant said trip financed first adoptive family still life australia applicant deported australia date deleted date deleted applicant travelled australia stowaway applicant gave tribunal understand circumstance stowing away involved element sexual extortion applicant married husband fijian citizen melanesian ethnicity australia 1986 applicant said able confide husband childhood abuse sought professional counselling scared medicare card applicant told tribunal feared child could suffer experience child applicant said family could bear thought child teased applicant said feared child might also sexually abused communal household tribunal noted comparative stability applicant present family situation ethnicity applicant husband queried chance child suffering applicant applicant told tribunal could bear thought ofany chanceof child suffering said would suicide rather see child subjected risk applicant said husband could protect child could time applicant family experience 1987the applicant told tribunal said evidence second adoptive family suffered soon first military coup fiji may 1987 applicant said army took family home business premise questioned applicant adoptive father applicant also said melanesian fijian damaged family home action taken security force perpetrator according applicant adoptive father chinese ethnicity applicant told tribunal family experienced problem since 1987 business premise destroyed fire year deleted inclusion may lead identification applicant applicant said family suspected jealous melanesian fijian worker responsible starting fire cause fire established according applicant family received insurance settlement looking purchase another business applicant also said oral evidence second adoptive father arrested date deleted inclusion may lead identification applicant know arrested detail relating arrest applicant said father told arrest nothing worry problem fijithe applicant adviser submitted applicant faced harm fiji relating favouring fijian citizen melanesian ethnicity regarding employment housing loan interest rate education fiji political system possible future political instability inadequate discriminatory police protection applicant however express fear tribunal relation matter relation employment applicant told tribunal would difficulty finding work lack education applicant said fiji would look work housemaid getting job depended knowing someone case tourism industry looking traditional applicant said look traditional herpart chineseethnicity applicant said husband able find work lived fiji applicant told tribunal husband accommodation available family fiji regarding fiji political system applicant told tribunal unsure whether would registered ethnic fijian ethnic indian voter see applicant said feel much fijian would upset vote general voter although applicant said interview felt constitution right thing family paid tax tribunal asked applicant fear relevant lack police protection applicant told tribunal fiji unfriendly neighbour stood outside house late night looking applicant said believed police would protect harm people saying believe care applicant husband written submission told tribunal family poor fiji older sibling favoured family applicant husband said believed could give child better life australia evidence fijipolitical systemthe evidence following paragraph drawn publicationsthe far east australia 1994 2 andcountry report human right practice 1994 3 fiji constitution promulgated 1990 non elected interim government constitution contains provision restrict freedom choice elector vote candidate ethnicity constitution contains provision ensure elected representative fijian citizen melanesian ethnicity form parliamentary majority require prime minister fiji melanesian ethnicity dominance upper parliamentary house fijian citizen melanesian ethnicity also ensured issue voting ethnicity person mixed parentage considered fijian court would appear applicant child ethnic fijian mother may right registered ethnic fijian voter would also appear however applicant registration may dependent acceptance mother smataqali kinship group seeah koy fight poll fiji time 1 december 1993 4 abuse childrenthere evidence assault including sexual assault child fiji thecountry report human right practice 1994 5 state c hanges centered around undermining traditional village extended family based society improvement record keeping revealed major problem child abuse fiji reported case almost doubled last 4 year legal system inadequate protecting right child child testimony inadmissible unless corroborated adult government created child welfare committee 1993 address problem likely remain reluctant become involved family matter co ordinator fiji woman crisis centre suva reported said child sexual abuse area increased concern seethe fiji time 30 june 1994 pp 19 20 racially motivated violencethere evidence fijian army responsible violence human right abuse following 1987 coup seecountry report human right practice 1987 6 p 695 also said widespreadracial violence emphasis added first coup 1987 far east australasia 1994 op cit p 675 evidence however decline level abuse since 1987 abuse reported declined substantially late 1987 country report human right practice 1987 op cit p 695 thecountry report human right practicesconcerning event fiji 1993 state fijian citizen non melanesian ethnicity 7 subject occasionalharassment crime based race 8 emphasis added reference however racially motivated abuse thecountry report human right practice 1994 9 conclusion factual issuesthe tribunal accepts applicant oral evidence husband written evidence truthful tribunal note applicant although distressed interview refer specifically sexual abuse tribunal considers however omission concern given sensitive nature matter based applicant oral evidence despite reference harm written material submitted applicant behalf tribunal find applicant fear child suffer abuse absence evidence tribunal assume applicant two child hold corresponding fear abuse tribunal also find applicant fear suffer economic problem constitutional restriction fiji fear harm related family experience 1987 unwanted attention neighbour based written evidence tribunal find applicant husband fear economic problem fiji conclusion refugee statusthe tribunal found applicant husband child hold certain fear refugee definition requires tribunal consider whether fear amount well founded fear persecuted convention reason race religion nationality membership particular social group political opinion inchan high court considered meaning persecuted considered persecution involves serious punishment penalty significant detriment disadvantage mason c j p 388 court also considered persecution involves threat harm part course selective harassment systematic conduct although necessary series act mason c j p 388 mchugh j pp 429 430 court also considered meaning awell foundedfear persecuted majority justice high court considered fear persecuted well founded real chance persecution occurring mason c j p 389 dawson j p 398 toohey j p 407 mchugh j p 429 court considered real chance one substantial remote see mason c j p 389 dawson j p 398 reason following tribunal considers applicant husband child meet requirement refugee definition abuse childrenthe tribunal considered child imputed fear sexual abuse tribunal assume sexual abuse constitutes persecution leaf aside issue whether persecution would occur reason child membership particular social group tribunal considers evidence justify conclusion remote chance child sexually abused tribunal considered evidence incidence sexual abuse child fiji however evidence particular case suggest environment applicant child might become victim abuse applicant concern avoid repetition experience suggests would seek avoid environment tribunal considered harm theapplicantfrom fear child welfare tribunal considers however harm could constitute persecuted absence conduct directed towards applicant could considered systematic conduct selective harassment tribunal considered race related teasing marketplace incident referred applicant evidence corresponding fear imputed tribunal applicant child leaving aside issue well foundedness fear tribunal considers condoning abuse abuse sufficiently serious harm constitute persecuted racially motivated violencethe tribunal considered applicant fear harm related family 1987 experience unwanted attention neighbour despite evidence violence 1987 tribunal considers chance applicant suffering abuse foreseeable future 10 remote tribunal come view evidence decreased racially motivated violence fiji since 1987 evidence violence 1993 occasional absence evidence violence 1994 applicant evidence family suffer violence 1987 tribunal noted evidence suspected arson family business employee tribunal satisfied however view evidence employee motivation first mentioned evidence evidence supporting well founded fear racially motivated violence tribunal leaf aside issue well foundedness applicant fear unwanted attention unfriendly neighbour tribunal satisfied present evidence attention sufficiently serious harm constitute persecuted constitutional restrictionsthe applicant fear restricted political right obviously well founded tribunal considers however restriction discriminatory tribunal view admired cause applicant harm sufficiently serious constitute persecution economic problemsthe tribunal considered family fear economic hardship tribunal considers however harm also cannot considered persecuted absence element systematic conduct selective harassment harm reason set applicant husband child meet requirement refugee definition well founded fear persecuted unnecessary consider requirement definition applicant husband child therefore refugee according definition person must refugee owed protection obligation must owed protection obligation granted protection visa decision review taken decision refusing applicant husband child protection visa must affirmed although tribunal must affirm decision review tribunal note evidence applicant traumatised childhood experience fiji result feeling returning threaten physical mental well tribunal note return applicant fiji circumstance might considered amount inhumane degrading punishment referred theguidelines stay australia humanitarian ground 11 decisionthe tribunal find applicant husband child refugee affirms decision review 1 accordance withs 431of themigration act1958 |
Blevins, Margaret Elizabeth Phyllis [2002] MRTA 5991 (15 October 2002).txt | blevins margaret elizabeth phyllis 2002 mrta 5991 15 october 2002 last updated 12 march 2003 2002 mrta 5991catchwords review visa refusal subclass 804 aged parent public interest criterion health requirementreview applicant margaret elizabeth phyllis blevinssally ann blevinsvisa applicant abovetribunal migration review tribunalpresiding member joy whitakermrt file number v02 03464dept file number clf2000 54951date decision 15 october 2002at melbournedecision tribunal affirms decision review finding visa applicant entitled grant aged parent residence class bp visa statement reason decisionapplication review1 application review decision made delegate minister immigration multicultural indigenous affair delegate mr margaret elizabeth phyllis blevins primary visa applicant national republic south africa born 12 june 1911 applied daughter sally ann blevins secondary applicant born 18 july 1942 aged parent residence class bp visa 1 march 2000 delegate decided refuse grant visa 7 may 2002 jurisdiction standing2 visa applicant lodged application review tribunal 20 may 2002 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 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 generally member family unit applied visa together least one visa applicant must meet primary criterion visa applicant need meet secondary criterion 6 criterion policy immediately relevant review legislation item 1124a schedule 1 regulationspart 804of schedule 2 regulationsschedule 4 criterion 4005 regulation 2 25a policyprocedure advice manual 37 tribunal generally regard regulation stood time visa application however subsequent amendment may apply circumstance evidence8 tribunal following document t1 mrt case file v02 03464 folio numbered 1 39 d1 departmental case file clf2000 54951 folio numbered 1 117 9 primary visa applicant secondary applicant last entered australia 14 september 1999 holder subclass 686 tourist long term visa 1 march 2000 applied subclass 804 visa subject review currently hold bridging visa 10 application based claim primary visa applicant aged parent daughter lynette rosemary kaiser nominator secondary applicant member primary applicant family unit nominator australian citizen 11 delegate decided refuse visa basis opinion medical officer commonwealth moc primary visa applicant failed meet public interest criterion set regulation 4005 required subclass 804 visa applicant regulation 804 225 12 primary visa applicant invited 5 june 2002 tribunal submit updated medical report support review application responded 19 june 2002 indicated would rely previous report submitted february 2002 13 review medical officer commonwealth rmoc health assessment service requested give opinion medical report previously assessed moc health service australia 4 july 2002 rmoc responded stated primary applicant meet criterion set regulation 4005 following reason applicant frail aged person cannot live independently dependent care regulation apply person condition e person would require health care community service period proposed stay australia provision health care community service case would likely result significant cost australian community area health care community service regardless whether health care community service actually used therefore applicant meet public interest criterion 4005 14 23 july 2002 tribunal invited primary visa applicant section 359a act comment rmoc report 4 july 2002 tribunal received response tribunal satisfied application appeared little prospect success tribunal decided section 359c 2 act exercise discretion determine review without conducting hearing section 360 2 c findings15 time visa application lodged aged parent residence class bp contained one subclass namely subclass 804 aged parent 16 visa application made basis primary visa applicant aged parent daughter nominator australian citizen 17 necessary criterion subclass 804 aged parent visa set regulation 804 225 requires visa applicant must satisfy several public interest criterion including health criterion specified regulation 4005 applicant satisfies public interest criterion 4001 4002 4003 4004 4005 4009 4010 18 criterion 4005 state applicant free tuberculosis b free disease condition may result applicant threat public health australia danger australian community c person disease condition following subparagraphs apply disease condition person would likely require health care community service b meet medical criterion provision community service period applicant proposed stay australia ii provision health care community service relating disease condition would likely result significant cost australian community area health care community service b prejudice access australian citizen permanent resident health care community service regardless whether health care community service actually used connection applicant 19 tribunal bound byregulation 2 25a 3 follow opinion rmoc deciding specified matter regulation 2 25astates 1 determining whether applicant satisfies criterion grant visa minister must seek opinion medical officer commonwealth whether person whether applicant another person meet requirement paragraph 4005 4005 b 4005 c 4006a 1 4006a 1 b 4006a 1 c 4007 1 4007 1 b 4007 1 c schedule 4 unless application temporary visa information known immigration either application otherwise effect person may meet requirement b application permanent visa made country country specified gazette notice purpose paragraph information known immigration either application otherwise effect person may meet requirement 3 minister take opinion medical officer commonwealth matter referred subregulation 1 correct purpose deciding whether person meet requirement satisfies criterion 20 therefore based opinion medical officer commonwealth tribunal satisfied primary visa applicant satisfy public interest criterion 4005 accordingly tribunal find primary visa applicant fails satisfy clause 804 226 conclusion21 given finding made tribunal alternative affirm decision review decision22 tribunal affirms decision review finding visa applicant entitled grant aged parent residence class bp visa |
Guthrie & Williams v Owners Corporation SP 53457 (Strata & Community Schemes) [2007] NSWCTTT 35 (10 January 2007).txt | guthrie williams v owner corporation sp 53457 stratum community scheme 2007 nswcttt 35 10 january 2007 last updated 31 january 2007guthrie williams v owner corporation sp 53457 stratum community scheme 2007 nswcttt 35 10 january 2007 consumer trader tenancy tribunalstrata community scheme divisionapplication sc 06 10380applicant robert guthriemr mr williamsrespondent owner corporation stratum plan 53457application appeal order adjudicator dismissing mr guthrie application seeking access certain common property areasordersthe order adjudicator made 6 february 2006 affirmed reason decisionapplicationan appeal order adjudicator dismissing application far relates prevention access common area toilet block backgroundmr guthrie applied adjudicator tribunal behalf mr mr williams appellant owner two lot stratum plan complex north sydney lot commercial premise complex also includes 100 residential unit complex consists two building block block b two commercial premise one coffee shop one small mixed business block block also common property toilet gymnasium communication room adjacent toilet block including security telecommunication fire alarm owner corporation decided close common property toilet block lot owner result employee owner two commercial premise obliged use common property toilet block b mr guthrie application adjudicator order decision set aside also decision owner corporation regard gymnasium also part application adjudicator however appeal part adjudicator decision jurisdictionthere decision adjudicator relating dispute exercise function imposed thestrata scheme management act1996 |
Watermark Glenelg [2005] SALC 17 (22 December 2005).txt | watermark glenelg 2005 salc 17 22 december 2005 last updated 23 march 2007in licensing court south australiaadelaidebefore honour judge beazleyin matterof theliquor licensing act 1997 act andin matterof application variation extended trading authorisation elmes hotel pty ltd r j j elmes pty ltd trustee watermark unit trust respect premise situate 631 anzac highway glenelg north known asthewatermark glenelginterveners city holdfast bayreasons decisiondelivered thursday 22 december 2005counsel applicant mr j firth barrister solicitor applicant mr tillett duncan basheer hannon counsel theintervenerthe city holdfast bay mr beamond mr w webster mellor olsson application licensee watermark glenelg situate 631 anzac highway glenelg north pursuant tosection 44of theliquor licensing act 1997 act extended trading authorisation applicant already significant extended trading right applicant seek vary extended trading authorisation permit consumption licensed premise area marked 1 2 approved plan monday friday inclusive sunday 3 00 day following present hour permitted licensee special circumstance licence number 51203481 consumption licensed premise follows monday friday 5 00 2 00 following day saturday day preceding public holiday 5 00 3 00 following day sunday 6 00 2 00 following day good friday midnight 2 00 city holdfast bay council intervened amended notice intervention dated 16 december 2005 ground intervention 1 application variance holdfast bay liquor licensing accord holdfast bay liquor licence policy may render accord policy difficult achieve maintain application granted 2 premise located vicinity residential property proposed application may result undue offence annoyance disturbance inconvenience people work reside worship vicinity 3 application may result increase patron congregating car park adjacent premise close residential area early hour morning 4 application may result increase movement patron licensed premise early hour morning 5 additional hour sought may give rise undesirable precedent trading hour licensed premise vicinity 6 may already adequate access gaming machine vicinity premise 7 application may contrary condition licence dispute therefore concern one extra hour per day saturday already permit 3 00 closing application heard 19 21 december 2005 whilst would preferred longer time give detailed reason response submission necessary deliver reason impending christmas break taken account submission put respective counsel ultimately little dispute fact backgroundthe applicant special circumstance licence contains unusual condition particular condition 3 prohibits licensee trading advertising premise name lennies lennies tavern condition condition licence imposed consequence numerous noise complaint made nearby resident many year ago premise operated different licensee advertised interchangeably st leonard hotel alternatively lennies tavern premise stage operated essentially discotheque early hour morning unusual condition imposed upon licence reduce impact activity upon nearby resident condition required notice given application vary condition secretary aquarius stratum corporation maintainsa large residential building abutting licensed premise intervener commissioner police named served notice nearby resident none objected sole intervener city holdfast bay intervener submitted condition 5 licence ought construed mean unless intervener consented licensee could proceed application vary condition separate ex tempore reason concluded condition simply required notice given notice requirement complied enormous change respect licensed premise glenelg area since time condition imposed area jetty road moseley square glenelg st vincent hotel extensively refurbished caters younger clientele name glenelg jetty hotel moseley square dublin hotel recently opened irish theme may accommodate 310 person stamford grand hotel also sited moseley square obtained extended trading authorisation licensed area grand hotel different closing time however area permitted trade consumption premise 3 00 attracts younger clientele large bar known pier pine grand hotel five star hotel catering wide range activity common ground case glenelg receives approximately three million visitor per annum including international interstate tourist clearly established adelaide major suburban tourist attraction ramada plaza pier hotel recently established holdfast promenade holdfast shore approximately 400 metre watermark glenelg also permitted term hotel licence trade consumption licensed premise many area 3 00 grand hotel ramada plaza pier hotel provide late night entertainment attractive younger clientele significant change however redevelopment applicant watermark glenelg present licensee dramatically changed nature operation business premise since 1997 expended approximately 4 5 million dollar renovating premise discontinued discotheque type operation mainstay st leonard hotel business restricted entertainment pianist occasionally duo anzac cove bar principal business food operation described largest food operation hotel south australia gaming operation applicant marketed age group 30 50 year provides accommodation 14 motel unit 3 5 star level 75 occupancy extended trading authorisationin order succeed application licensee must satisfy court matter set insection 44 2 act obtain favourable exercise discretion insection 53thereof relevant matter insection 44are grant authorisation would unlikely result undue offence annoyance disturbance noise inconvenience people example reside work study worship vicinity licensed premise b licensee implement appropriate policy practice guard harmful hazardous use liquor applicant satisfied matter overwhelmingly intervener properly conceded evidence suggest offence annoyance disturbance noise inconvenience caused applicant current hour evidence applicant director mr elmes accept entirety establishes ensure change state affair consequence extra hour trade satisfied continuously continue appropriate policy practice required b evidenceon behalf applicant director mr elmes gave evidence significant change taken place indicated since family taken conduct hotel renovated changed nature target market hotel single complaint directed hotel respect noise inconvenience stressed purpose application provide one extra hour gaming licensed premise experience established late night custom came people resided area travelled city employee numerous restaurant wanted wind quiet area finishing work early morning experience saturday night trading 3 00 next day successful operation even various bar permitted remain open problem noise complaint consequence 3 00 trading suggested ramada pier grand hotel permitted trade 3 00 market five star accommodation aimed tourist pointed fact may cause concern resident establishment attract younger clientele provide loud music also deposed fact premise also attract tourist even tourist different attend five star premise described established need addition hour disclosed attend premise saturday night 3 00 consequence experience way hotel operated would cause inconvenience undue noise nearby resident cross examined policy consideration intervener contained document entitled holdfast bay liquor licensing accord prepared 1996 document prepared basis recommendation licensed premise holdfast bay council area would closing time 1 00 generally 2 00 saturday document supplanted document revised 2005 specify recommended hour operation separate document adopted various licensee liquor licence policy approved intervener september 2005 application lodged mr elmes accept ever accord sense agreement event policy applied respect either grand hotel ramada pier similarly applicant always traded 3 00 one day per week applicant called two nearby resident mr baird mr hall evidence contradicted problem noise inconvenience subject premise case intervener large movement people early hour morning licensed premise license premise inference asked draw movement caused difference trading hour intervener called witness david helyard representative various unit owner major residential structure west colley terrace m suzanne tiley councillor intervener neither able give direct evidence noise difficulty associated operation watermark hotel complained large number people seemed travel particularly moseley square licensed premise ramada pier holdfast shore development m tilley referred problem associated licensed premise known salt holdfast promenade generally genuinely concerned need limit hour late night trading licensed premise city holdfast bay although observed people moving ramada pier general direction watermark unable say whether attending watermark hotel returning home unit might adelphi terrace gave evidence concern constituent generally respect need accord council area limit hour licensee operated generally assessment applicationthe basis application enable gaming operate week time saturday namely 3 00 informed policy requirement liquor gambling commissioner event gaming area remains open must also one bar open accommodate person wish partake gaming difficulty presented case area number 3 plan effectively front bar hotel mr elmes wish area open might indeed attract people may cause difficulty past taken policy step closing early new year eve despite profitable period guard noise problem neighbour remaining area described area 1 large area capable accommodating 600 people area embrace large dining area area described cocktail bar bar known anzac cove mr beamond appeared intervener stressed special right intervention council insection 76of act stated council policy must given great deal weight amenity aspiration community expressly referred object act insection 3thereof referred tostate planning authority v tanczos 1979 20 sasr 210 acknowledged even intervener role decision maker planning matter must consider application separately defer pre ordained policy accept intervener justified concern late hour trading however accept extending authorisation applicant one hour match hour saturday competitor ramada pier stanford grand send wrong signal quite different premise area evidence establish younger clientele seeking different type entertainment premise grand ramada pier unlikely move subject premise hour trade premise conclusioni taken account given equal weight object insection 3of act tourist area may well tourist attend stamford grand hotel area five star nature fact 3 million tourist glenelg would significant percentage would prefer attend premise overlook concern expressed witness called behalf intervener large number licensed premise glenelg area many special circumstance licence would laudable achievement licence similar closing time prevent crowd moving one area another fact moment crowd leave stamford grand area attend pier hotel trade 3 00 indeed movement watermark hotel pier hotel may well people required leave former 2 00 accept increase hour 3 00 match hour stamford hotel pier hotel give rise concern object exercise accommodate seeking extra hour gaming seeking late night entertainment clearly despite best endeavour intervener simply accord licensed premise cease trading 2 00 repeat applicant two competitor trade 3 00 licensee permitted trade saturday 3 00 following morning applicant premise much family style hotel operation already found prerequisite insection 44 2 act overwhelmingly satisfied opinion discretionary reason refusing grant application mr beamond suggested applicant style operation may change future intervener resident would remedy available act including asection 106complaint therefore grant application extended trading monday friday sunday 3 00 following day restrict trading 2 00 3 00 area marked 2 licensed plan gaming area part area 1 identified anzac cove bar conservatory cocktail bar deposited plan informed counsel applicant area would isolated partition large dining area area 1 would therefore closed counsel also accepted avoid public confusion condition ought varied consistent day licensee permitted trade saturday 3 00 consumption area condition varied week authorised sell liquor consumption licensed premise 2 00 3 00 day following area 2 part area 1 identified deposited plan anzac cove bar conservatory cocktail bar grant trial period 12 month commencing today 22 december 2005 order become final without necessity party returning court expiration 12 month bona fide objection received within timeframe objection received matter listed consideration note initial application extend time entertainment consent withdrawn entertainment consent also provide entertainment permitted licensed premise 2 00 3 00 day |
Bettina Dorothy Ogilvy (Legal Personal Representative of Walter William Ogilvy - Deceased) and Repatriation Commission [1995] AATA 123; (1995) 37 ALD 737
(9 May 1995).txt | bettina dorothy ogilvy legal personal representative walter william ogilvy deceased repatriation commission 1995 aata 123 1995 37 ald 737 9 may 1995 administrative appeal tribunalbettina dorothy ogilvy legal personal representative walterwilliam ogilvy deceased v repatriation commissionno p93 548aat 10170number page 8veterans entitlement 1995 aata 123 1995 37 ald 737courtadministrative appeal tribunalveterans appeal divisionm lewis senior member e c thorpe member r horton member catchwordsveterans entitlement whether veteran rendered operational service interpretation actual combat enemy actual operational involvement veteran state readiness reached army battalion training within meaning necessity veteran direct involvement act hostility even conduct defensive rather offensive veteran entitlement act 1986s6 1 n s36 ahrenfeld v repatriation commission 1990 fca 319 1991 101 alr 71repatriation commission v ahrenfeld 1991 101 alr 86re ahrenfeld repatriation commission 1992 28 ald 921repatriation commission v thompson 1988 82 alr 352willcocks v repatriation commission 1992 fca 564 1992 111 alr 639re mcconville repatriation commission unreported aat 6889 1 may1991 repatriation commission srhoy unreported aat 6275 3 september 1990 hearingsydney 31 january 19959 5 1995counsel applicant mr p gerbersolicitors applicant vardanega robertsmr b topperwein legal service group department veteran affair central office appeared respondent orderthe tribunal determines walter william ogilvy undertake operational service pursuant tosection 6 1 n theveterans entitlement act 1986 decisionm lewis e c thorpe r horton application lodged 15 december 1993 review tribunal decision repatriation commission respondent dated 16 september 1992 refuse claim lodged walter william ogilvy veteran respect cholangiocarcinoma related war service veteran sought review decision veteran review board vrb 23 november 1992 died 15 december 1992 vrb reviewed decision veteran widow bettina dorothy ogilvy applicant approved continue application legal personal representative 19 september 1993 vrb affirmed decision respondent 2 tribunal agreed consider preliminary issue whether veteran rendered operational service defined in 6 1 n theveterans entitlement act 1986 hearing conducted 31 january 1995 relation issue hearing tribunal document provided respondent pursuant tos 37of theadministrative appeal tribunal act 1975 behalf applicant chapter 12 book entitled project kingfisher athol moffitt cmg qc ba llb angus robertson sydney 1989 tendered exhibit together extract war diary held australian war memorial relation 1st australian parachute battalion compiled sergeant murphy 1957 58 exhibit b 3 following publication tendered behalf respondent final campaign gavin long australian war memorial canberra exhibit 1 high command australia allied strategy 1939 1945 mhorner george allen unwin exhibit 2 island campaign allan walker australian war memorial canberra exhibit 3 4 veteran born 9 march 1920 served australian army 3 january 1942 14 june 1946 completed course signal school western australia december 1942 february 1943 went tocumwal new south wale later richmond qualified parachutist transferred 1st australian parachute battalion stationed atherton tableland 5 evidence hon athol moffitt cmg qc exhibit 1945 well advanced plan major rescue operation 1st australian parachute battalion respect 1500 allied prisoner war japanese sandakan borneo thesis moffitt operation command lieutenant colonel later sir john overall get way lack aircraft ship transport australian paratroops unpreparedness united state america assist australian army providing transport operation materialise confirmed horner exhibit 2 long exhibit 1 long comment respect 1st australian parachute battalion though often warned duty field never went action 6 conceded behalf applicant veteran travel outside australia except flight went richmond williamtown evans head beaudesert flight australian eastern coast submitted behalf applicant flight went outside australian territorial water 7 oral evidence given behalf applicant alban francis meyers previously sergeant 1st australian parachute battalion commenced training parachutist tocumwal november 1942 excessive injury hard ground tocumwal battalion moved richmond april 1943 although walter ogilvy tocumwal time mr meyers get know mr ogilvy well company formed richmond platoon mr meyers section leader recalled mr ogilvy remained unit moved mareeba demobilisation 8 evidence mr meyers respect air trip richmond williamtown evans head beaudesert travelled williamtown evans head night took evans head landing beaudesert first light mr meyers gave following evidence counsel recall relation coastline meyers well dark certain water senior member lewis say certain wereover water meyers well take much notice really counsel trying clarify evidence yousay certain certain overwater meyers well retrospect say certain overwater 9 asked say certain water mr meyers said normal practice air force go water easier flying able dodge great dividing range along coast 10 respect evidence tribunal find assumption mr meyers based belief normal practice flying water journey richmond beaudesert evidence applicant travelled outside australian water find balance probability applicant travel outside australian water 11 mr meyers described intensive jungle training atherton tableland high quality communication equipment also considered fully equipped war respect ammunition relation knowledge mission evidence counsel period mareeba told youknow training specifically meyers well ready anything could take anythingon counsel point vp day perhaps six month orso till date anything happen relation operationsor activity recall meyers received cholera injection shortly thatwe got word commander chief co thecommander chief go leave immediately took bemeaning embarkation leave pre operational leave theusual thing day counsel apart cholera injection period leave indication given anything wassaid done anybody would indicated unit wasgoing involved might involved way ofoperations meyers well security weregoing move would briefed normal channel theyhad order group would come formation ourbattalion battalion would form order right toplatoon level think sufficiently trained stageto able execute order given would say atthat stage probably best trained infantry battalion inaustralia 12 mr meyers also explained year ago 1957 58 sergeant bill murphy company visited war memorial obtain extract unit war diary time mr meyers given copy exhibit b covered period 19 april 1943 29 january 1946 extract noted 1 december 1945 party provides guard honour lord louis mountbatten singapore mr meyers said opportunity go decided go knowledge whether mr ogilvy went party said party went two plane said know first plane load took according toveterans affair entitled termed called returnedsoldiers second plane certain cut date second plane load went little bit later got thereafter cut date returned soldier tget benefit course 13 purpose theveterans entitlement act 1986 vea veteran service must meet requirement paragraph 6 1 n accepted operational service paragraph 6 1 n provides person rendering continuous full time service amember defence force within australia world war 2 insuch circumstance service opinion thecommission treated service actual combat enemyshall taken rendering operational service theperson rendering continuous full time service 14 counsel applicant relied decision einfeld j federal court ahrenfeld v repatriation commission 1990 fca 319 1991 101 alr 71which subsequently accepted full court federal court repatriation commission v ahrenfeld 1991 101 alr 86at 93 interpretation paragraph 6 1 n wilcox gummow hill jj said primary judge favoured view expression actualcombat enemy would include conduct answered thedescription integral participation activity directlyintended encounter enemy whether offensive ordefensive character agree treatment matter fact found aat could answer description whetheror onslow actually bombed respondent aradio operator engaged passing information enemyincursions western area headquarters remained duty aspresumably required even aircraft theimmediate area least one enemy aircraft passed onslow onat least one night may activity comprising lessinvolvement found aat case would beembraced within meaning actual combat enemy sufficient present purpose say fact whichanswer description propounded primary judge would inlaw afford basis formation opinion thecommission service actual combat theenemy 15 submitted applicant tribunal asked take test one step matter u submitted veteran involved operation activated andthey taken would actually gone theprocess attacking japanese going combat would matter going getting prisonersand leaving would matter taking prison guard enemy coming would submit borneout sort plan revealed moffitt exhibit p 246 16 submitted applicant exhibit describes 1st australian parachute battalion ready go evidence mr meyers consistent although acknowledged unit told standby applicant case effect unit reached state readiness level involvement considered within meaning actual combat enemy 17 respondent submitted following remittal full federal court administrative appeal tribunal rehearing ahrenfeld tribunal noted expression actual combat enemy found mr justice einfeld federal court first instance mean integral participation activity directly intended encounter enemy ahrenfeld v repatriation commission 1990 fca 319 1991 101 alr 71at 80 view upheld review full federal court also added word whether offensive defensive character repatriation commission v ahrenfeld 1991 101 alr 86 93 reheard tribunal said ahrenfeld repatriation commission 1992 28 ald 921 taken literally word used would extremely wideapplication kind service armed forcesanywhere australia war time might properly described asconduct answering description integral participation anactivity intended encounter enemy noother reason organisation army war time except toparticipate activity intended encounter enemy thus unless test applied manner believe wasintended would apply equal validity cook melbourne sentry outside hmas penguin sydney view cannot intended honour use word directly indicates must proximate connectionbetween activity intended encounter enemy andthe conduct veteran although conduct may defensive directly involved act hostility extentof involvement must ultimately question degree ouremphasis 18 respondent referred decision full federal court repatriation commission v thompson 1988 82 alr 352where davy wilcox foster jj said respect term incurred danger hostile force enemy in 36 vea approaching statutory provision necessary keep inmind word used word ordinary parlance usedin ordinary sense word in 36 ambiguous noambiguity arises order word used noambiguity arises context provision found word require juristic extrapolation mean theysay le read 19 respondent submitted word paragraph 6 1 n service actual combat enemy ought also reasonably clear 20 respondent also referred decision federal court willcocks v repatriation commission 1992 fca 564 1992 111 alr 639where cooper j considered word context phrase military operation enemy mean hostility active opposition cooper j considered context refers hostile offensive defensive encounter exchange enemy mere contact enemy mean encounter enemy honour said 647 accordingly view word phrase militaryoperations enemy used sense hostilityor active opposition common meaning generalusage word context section requiresservice inter alia military operation enemy inthe sense operation hostility opposition enemy full court decision ahrenfeld support theapplicant contention mere contact enemy issufficient case held expression actualcombat enemy would include conduct answered thedescription integral participation activity directlyintended encounter enemy whether offensive ordefensive character view phrase encounter withthe enemy mean mere contact enemy refers toa hostile offensive defensive encounter exchange theenemy 21 respondent submitted activity regarded enemy must hostility active opposition enemy also necessarily assumes presence enemy submitted similar meaning given word context actual combat enemy given fact anticipated encounter enemy many thousand mile away firm date occur respondent submitted could many reason veteran might never sent engaged combat enemy thus breaking purported nexus activity intended encounter enemy apart unavailability transport area planned deployment 1st australian parachute battalion respondent submitted probable veteran serious acne problem would sufficient excluded sent overseas also noted veteran selected part 120 member unit left australia 26 august 1945 go singapore part 75 member unit went singapore september 1945 exhibit 1 22 thes 37documents record p 13 veteran hospitalised 28 april 1945 26 may 1945 suffering acne conglobata discharge unfit carry pack also recorded suffered condition since 1942 respondent relied work dr allan walker exhibit 3 support submission 21 per cent service personnel admitted medical unit borneo suffered skin affection unlikely therefore veteran would sent borneo significant skin condition decision turn issue tribunal make finding respect part respondent submission 23 respondent conceded veteran involved training combat submitted evidence ever active opposition enemy hostility towards enemy 24 respondent referred decision tribunal mcconville repatriation commission unreported aat 6889 1 may 1991 applicant present darwin bombing raid wharf area army service corp driver matter senior member allen considered perversion language statute hold amember force albeit best military reason wassheltering slit trench course air raid besaid engaged actual combat enemy tohave rendered operational service pursuant paragraph 6 1 n 25 senior member allen considered case classic illustration test applied commented anti aircraft gunner engaging enemy aircraft raid engaged actual combat army service corp driver delivered gun line engaged actual combat 26 repatriation commission srhoy unreported aat 6275 3 september 1990 submitted veteran state readiness throughout period battalion service rottnest island suggested movement order operational instruction operational standing order battalion found war diary sufficient meet test actual combat enemy tribunal rejected submission found exercise involved two day rottnest island merely training exercise conducted circumstance could treated service actual combat enemy 27 respondent submitted must presence enemy shape form mere expectation encounter enemy sufficient satisfy criterion test actual combat enemy one difficult consider vacuum need considered context particular circumstance veteran service respondent submitted test may well met enemy actually present veteran carried duty direct connection enemy presence opposed anticipated suspected feared connection enemy test respondent accepted ahrenfeld operational service two day enemy aircraft flew onslow area without need bomb actually fallen fact ahrenfeld involved time duty direct connection enemy incursion relation full court statement may activity comprising le involvement found aat case would embraced within meaning actual combat enemy respondent submitted specific reference court activity onslow two night incursion occurred rather activity service personnel part australia 28 view tribunal reheard ahrenfled full court intend overly wide interpretation phrase actual combat enemy respect adopt interpretation preferred tribunal must proximate connection activity intended encounter enemy conduct veteran veteran activity directly involved act hostility 29 find evidence 1st australian parachute battalion well trained well equipped ready action time stationed atherton tableland although planned unit would land sandakan borneo rescue allied pow find action could seen commenced unit left australian territory 30 find veteran directly involved act hostility enemy merely mareeba state readiness undertake journey borneo exercise commence absence essential transport war zone circumstance case find veteran service actual combat enemy meet requirement operational service defined paragraph 6 1 n veteran served australian army 3 january 1942 14 june 1946 within australia eligible service pursuant tosection 7of vea |
Casey C17 (PSA) [2001] PPV 22 (14 March 2001).txt | casey c17 psa 2001 ppv 22 14 march 2001 last updated 24 december 2009_______________________________casey planning schemeamendment ci7 andplanning application p10 00________________________________casey planning schemeamendment c17 andplanning application p10 00panel reportt eugene kneebone chairpersonchristine daly membermarch 2001contentsexhibited amendmentmodified proposalschedule tabled documentsfurther information provided proponentfurther information provided responsible authority1 introduction1 1 panelthis report panel appointed delegation minister planning consider amendment c17 concurrent town planning permit application p10 00 casey planning scheme casey city council planning authority panel appointed undersections 96b 153 155of theplanning environment act 1987on 8 december 2000 panel comprised eugene kneebone chairperson christine daly member confirmed hearing independent conflict interest matter panel 1 2 panel taskthe main task panel hear consider submission aboveamendment panel directed use strategic assessment guideline toguide consideration matter line planning reform objective party hearing attention directed need respond matter canvassed guideline strategic assessment guideline included appendix 1 3 procedings paneladirection hearingwas held city casey municipal office 21 december 2000 meeting various procedural preliminary matter discussed subsequently confirmed writing interested party included date timetable public hearing accompanied site inspection document made available panel including expert witness report direction thatthe responsible authority proponent specifically address submission strategic issue associated proposed amendment outlined sppf lppf ms relevant strategic documentation panel completed accompaniedsite inspectionon morning wednesday 24 january 2001 vacant site 25 27 hartley link associated surrounding street development attended included city casey officer councillor cr brian oates myuna ward cr rob wilson heatherton ward mr harry nicholls mr john gledhill proponent various proponent consultant m dianne fox 22 hartley link neighbouring submitter thepublic hearingwas held morning afternoon early evening wednesday 24 january meet preference requested heard panel considered written submission made concerning amendment c17 expressed concern various matter commercial submitter laura thomas hame sharley behalf armstrong jones owner endeavour hill shopping centre residential submitter max de souza 67 john fawkner drive owner lot 67 hartley link dianne fox ian anderson 22 hartley linkgerry r julie stone 51 lawson waydiwakar w sharma 23 hartley linkplus petition nine local signatory head petitioner diwakar sharma also expressing concern comment also received sixreferral authority environment protection authority melbourne water southeast water natural resource environment gpu powernet none expressed objection epa requested however certain condition pertaining noise construction activity included issued permit presentedto panel public hearing included craigtate senior planning officer city caseycatherine hezky consultant planner taylor surveyor planner proponenthenry h turnbull turnbull fenner expert traffic engineering witness proponentsean j hamilton berwick drafting design service expert building design witness proponentrosemary manion landscape designer expert landscape witness proponentswee wah yuen resident 219 james cook drive behalf 12 non submitting resident dianne fox 22 hartley linkmax de souza 67 john falkner drive owner lot 67 hartley link noted owner agent hame sharley main commercial submitter endeavour hill shopping centre specifically invited attend public hearing speak written submission invitation taken hame sharley public hearing proceeded orderly manner party present given opportunity present point view several local resident present content let others speak behalf hearing became clear revised permit application would need made correcting land description subject site describing alteration existing car parking layout together formal request consequential car parking reduction revised application duly submitted responsible authority 29 january 2001 panel present report within required six week public hearing agreed provision follow documentation proponent responsible authority see appendix e appendix f 2 proposed amendment2 1 background site amendmentthe site hartley link located growing outer suburban location endeavour hill 30 km south east central melbourne via monash freeway site south heatherton road immediately adjacent east endeavour hill shopping centre existing community service located south include library leisure centre community health medical centre child care centre normal approach site car would via matthew flinders avenue dog legged raymond mcmahon boulevard see melway page 91 ref e5 site presently vacant abuts terrace convenience shopping centre developed 14 year ago immediately south north east site largely built residential subdivision developed past two year land generally sloping heatherton road north south hartley link fully constructed serviced court allow traffic panel noted hartley link western termination road pavement approximately one metre higher land west comprises endeavour hill shopping centre car park although chain wire fence secures car park presently breached near termination hartley link access terrace shopping centre endeavour hill shopping centre formally available pedestrian via pathway western boundary subject site proposed amendmentseeks rezone land lot number 55 56 57 ps423792 hartley link endeavour hill residential 1 zone business 1 zone casey planning scheme proponent also lodged planning application p10 00 construction additional shop requesting application considered concurrently amendment mechanism available new format planning scheme allow permit issue shop subject approval proposed amendment see appendix b since lodgement original proposal early 1999 proponent modified site layout floor area number shop architectural expression together proposed change landscape planting traffic circulation seek respond concern raised submitter council advertised proposal see appendix c modified proposal proposed draft permitthere number stage get present status matter presented panel whilst relevant chronology set benefit panel participant familiar town planning system best confused worst suspicious process employed responsible authority partically applies fact detail considerable modification planning permit application considered benefit concerned submitter whilst considered council november 2000 made available interested party day public hearing panel belief city casey therefore review communication process affected stakeholder planning proposal amendment c17 avoid understandable negative implication suspicion emerging mind ordinary citizen affected proposal relevant chronologyof planning decision regard subject site follows plan subdivision p 423792 incorporating subject site endorsed 11 february 1999 lot comprising subject site released title office 12 may 1999 negotiation proponent purchase subject site commence 5 august 1998 conclude 22 february 1999 new format casey planning scheme came effect 26 august 1999 informal negotiation officer level extending 1999 council received current formal request rezone lot 55 56 57 hartley link 19 november 1999 council resolved exhibit amendment c17 rezone subject land residential 1 zone business 1 zone concurrently council agreed consider planning application number p10 00 facilitate addition eight shop undersection 96a 2 theplanning environment act 1987on 4 april 2000 permit application lodged 7 january 2000 amendment subsequently exhibited 11 april 15 may including artist impression displayed site 4 may 2000 august 2000 response council received five opposing submission opposing petition following review proponent responded traffic access image general amenity concern revised plan including animated three dimensional video model submitted council 17 october 2000 meeting 9 november 2000 consideration modified proposal officer recommendation council decided proceed amendment including planning permit basis modified plan referring matter panel consideration panel shownthe modified proposal including animated video formed view following change would reduce detriment neighbouring resident modification included landscape buffering hartley link northern boundary lowering building respect view hartley link number shop reduced extension terrace eight six consequential reduction floor space rear shop hartley link take contextual domestic appearance shop frontage match existing shop terrace easement pedestrian pathway recognised respected additional car parking provision including reorganisation space existing car park removal casual space hartley link building footprint provides buffer neighbouring property north creating enclosed space within shopping centre matter canvassed detail following section however sufficient note party hearing agreed modified proposal improvement exhibited permit panel observes submitter aware welcomed change earlier many concern would allayed council customer service reputation maintained 3 strategic issue rezoningthe panel belief reviewing city municipal strategic statement ms relevant planning policy framework key strategic issue associated consideration amendment withaccommodating expansionwithin activity centre theappropriate design approved worksand development andsatisfactory safe arrangement traffic pedestrian accessand car parking 3 1 state planning policy framework sppf panel considers two aspect state planning policy framework sppf particularly relevant proposed rezoning clause 14 02metropolitan developmentand clause 17 01activity centre clause 14 02metropolitan development objectiveseeks assist achievement metropolis business environment conducive sustainable long term economic growth enhanced environmental quality livability metropolitan population improved functioning best practice management infrastructure urban development objective implemented relevant follows consolidation residential employment activity encouraged within existing urban area designated growth area major suburban retail commercial administrative health education entertainment cultural development concentrated around activity centre good access integrated transport node panel belief proposed rezoning allow extension terrace shopping centre would consistent objective clause shopping centre form part designated activity centre city casey provide additional business retail facility complement existing adjoining endeavour hill shopping centre benefit local wider community panel accepts evidence presented hearing proposed design layout extension maintain environmental quality livability surrounding resident clause 17 01activity centre objectiveseeks encourage concentration major retail commercial administrative entertainment cultural development activity centre including strip shopping centre provide variety land us highly accessible community objective implemented relevant follows activity centre planned provide range shopping facility location readily accessible community incorporate integrate variety land us including retail office education human service community service recreation entertainment residential us appropriate provide good accessibility available mode transport particularly public transport safe pedestrian cycling route encourage multi purpose trip making centre facilitate ease pedestrian movement component centre public transport interchange parking area maximise opportunity co location multiple use sharing facility minimise effect commercial development amenity residential parkland area example result traffic congestion noise overshadowing panel belief proposal responds consistent clause generally reason presented submission taylor hearing behalf proponent summarised follows proposal increase diversity shopping facility option available activity centre proposal provides transition large scale commercial community precinct residential area north east terrace shopping centre easily accessible car walking bicycle bus pedestrian movement throughout activity centre well established proposed expansion contributes co location multiple use sharing facility endeavour hill activity centre protection residential amenity key consideration design landscaping traffic arrangement proposed development proponent believe adequately addressed issue revised proposal matter dealt detail later report summary panel satisfied proposed rezoning subsequent expansion terrace shopping centre consistent relevant clause state planning policy framework 3 2 local planning policy framework lppf council proponent argued hearing proposed amendment resulting development proposal accord various clause municipal strategic statement ms local policy local planning policy framework lppf panel agrees note amendment propose change part local planning policy framework relevant clause considered follows 3 2 1 municipal strategic statement ms clause 21 05 built areathe subject land located within built area region defined municipal strategic statement relevant objective provide local employment opportunity main employment centre reduce car dependency amongst casey community optimise use existing proposed infrastructure service relevant strategy strengthen hierarchy activity centre require development gateway activity centre along main road maintain high design standard panel considering city submission belief proposed amendment consistent objective strategy provide additional employment opportunity within strengthened endeavour hill activity centre support contribute established pedestrian network within activity centre optimise parking road service infrastructure exists terrace shopping centre specifically locality generally proposed building design particularly along hartley link high aesthetic standard minimise impact commercial development residential area clause 21 11 employmentthe limited number employment opportunity city addressed clause objective relevant proposal expand number employment opportunity casey provide employment opportunity around activity centre make employment centre accessible mode transport objective achieved strategy encourage business investment generates significant employment opportunity locate accessible area activity centre public transport node panel view proposed rezoning residential 1 zone business 1 zone allow expansion terrace shopping centre within existing endeavour hill sub regional activity centre resulting employment opportunity would create implement strategy clause 21 12 imageit council objective build positive image casey desirable place live order attract business investment create employment opportunity attract future resident instill community pride existing resident achieved follows ensure commercial industrial major development prominent area municipality conform applicable urban design strategy structure plan adopt principle contextual design demonstrate proposed development visually attractive functional layout responsive site constraint panel agrees council submission proposed development complies strategy clause 21 13 accessibilityobjectives clause include co locate commercial community facility provide casey resident range commercial centre service different need panel note appear relevant operational strategy clause achieve objective panel considers proposed expansion commercial facility within existing sub regional activity centre endeavour hill provide opportunity wider range facility service currently available immediate wider community summary panel considers proposed amendment development implement consistent relevant objective strategy espoused council municipal strategic statement 3 2 2 local planning policiesclause 22 07 activity centre policythis policy implement various strategy municipal strategic statement discussed previously report see clause 21 11 employment clause 21 05 built area clause 21 13 accessibility proposed amendment retail expansion consistent objective policy statement local policy council advised panel local policy reviewed basis activitiy centre strategy understood however amendment process commenced see appendix f 3 3 activity centre strategycouncil recently published activity centre strategy although formally adopted set hierarchy city activity centre presented panel relevant strategic document support proposed development identifies endeavour hill sub regional centre comprising endeavour hill leisure precinct endeavour hill shopping centre terrace shopping centre full range sub regional neighbourhood convenience function provided part one strategy detail strategy framework comprises purpose vision series goal floorspace allocation future activity centre system also includes way implementing strategy specific reference made expansion terrace shopping centre part inpart two activity centre assessment individual activity centre proposed expansion opportunity potential action described proposed development terrace shopping centre included one several small expansion endeavour hill sub regional centre amendment consideration panel single action listed activity centre written submission made behalf endeavour hill shopping centre argued shopping centre alone provides full range sub regional neighbourhood convenience need local resident expansion nearby shopping centre undermine compromise position able pursue matter hearing panel agree argument put forward submission function referred part one strategy relate provision retail good service community facility across activity centre within endeavour hill shopping centre panel note endeavour hill leisure centre terrace shopping centre integral component endeavour hill sub regional activity centre submission also raised issue apparent inconsistency statement regarding expansion terrace shopping centre part one part two strategy part one strategytable 3 recommended new floorspace allocation 2016 new floorspace endeavour hill sub regional centre recommended however part two activity centre assessment proposed development terrace shopping centre included one several small expansion endeavour hill sub regional centre hearing panel advised confusion arises table 3 part one opportunity four sub regional centre endeavour hill berwick casey central hampton park increase floorspace using part 35 000 square metresunallocated reserve however additional floorspace later explained justified part two activity centre assessment panel belief footnote added totable 3 recommended new floorspace allocation 2016to clarify scope expansion within sub regional centre cross reference could also made relevant section part two strategy clarify matter summary panel considers proposed amendment development consistent recommendation council activity centre strategy panel advised council considering strategy shortly would expect formal adoption inclusion planning scheme thereafter 3 4 amenity issue proposed development3 4 1 building designthe original proposalfrom documentation tabled hearing panel noted original proposal exhibited amendment c17 composed eight shop development total floor area 515 square metre rear four shop facing residential property 23 hartley link remainder facing hartley link five car parking space accessed directly hartley link parking also available along hartley link pedestrian access via walkway accessed hartley link 2 0 metre wide easement commercial façade along hartley link minimum 3 metre setback hartley link landscaping revised proposalas noted response submission concern raised council officer design site layout proposal significantly modified panel advised revised plan circulated submitter prior panel hearing therefore little time properly consider change prior hearing revised proposal illustrated tabled plan animated video show façade along hartley link redesigned give appearance two separate attached residential property building sunk approximately 1 metre hartley link street level reduce visual bulk building number new shop reduced 8 6 reduced total floor area approximately 455 square metre rear shop facing hartley link building setback hartley link increased minimum 5 54 metre landscaped accordance landscape plan see discussion shop 11 abuts residential property east window pedestrian access along boundary extensive planting proposed protect residential amenity adjoining dwelling central walkway 2 0 metre wide easement enclosed maintain residential façade along hartley link direct access available hartley link walkway access storage area structure readily removed allow access service beneath required pedestrian access hartley link via existing constructed council path along western property boundary car parking space accessed hartley link removed addition adjacent street parking permitted proposal proposed new retail façade seen raymond mcmahon boulevard match closely possible existing shopping centre built form using similar detailing material colour finish architectural style panel heard evidence building designer behalf proponent set design intent panel considers outlined change design layout proposed extension terrace shopping centre negotiated developer council address many local resident concern residential façade along hartley link consistent complement emerging residential character urban design standard area single storey building floor level one metre hartley link maintain view currently enjoyed residence north hartley link together landscaping proposed provide attractive outlook south new design specifically address protection residential amenity dwelling 23 hartley link four metre wide landscape buffer planted various tree shrub screen solid brick wall shop 11 adjacent residence window along wall footpath service area car parking space along full length subject land eastern boundary addition brick wall planting separate nearest car space residential property overall panel belief revised design site layout proposal provides positive refreshing response complexity residential business interface many way revised scheme provides model small scale extension retail centre generally residential context 3 5 landscaping proposalslandscape architect rosemary manion appointed prepare landscape plan existing proposed terrace shopping centre development exhibition amendment c17 planning application p10 100 plan report submitted panel hearing however distributed submitter prior hearing landscape buffer along eastern property boundary comprises selected tree shrub different height texture panel belief treatment effectively screen shopping centre adjacent residential property garden within approximate 6 metre setback along hartley link designed reflect residential garden grassed area intermingled tree various height garden bed flowering shrub ground cover adjacent building wall landscape architect state design intended soften north facing facade rear development provide attractive outlook neighbour visitor area garden designed blend existing mature streetscape reinforce domestic character hartley link panel belief choice tree shrub specie complement residential façade proposed new building contribute establishing streetscape along southern side hartley link panel support redesign rationalise existing car park landscape area additional tree shrub grassed area building softened planting climber along verandah proposed work provide functional attractive area worker visitor alike summary panel concludes landscape plan referred condition planning permit complement enhance residential character hartley link façade panel belief provide screening required improve raymond mcmahon boulevard streetscape 3 6 traffic parking access issues3 6 1 council viewthe issue associated safe arrangement traffic pedestrian access together provision sufficient workable car parking arrangement became discussed matter hearing matter however finally resolved modified proposal view submitter mr tate behalf city casey argued ms objective accessibility among thing would encourageco locationof commercial community facility reduce need journey advantage increased accessibility convenience reduced travel cost choice travel mode better use existing infrastructure brought panel whilst acknowledging relatively small scale proposed extension respect total activity centre would agree amount retail floor space located isolation elsewhere would generate trip hence traffic 3 6 2 car parking provisionmrhenry h turnbullwas sole expert witness provided evidence traffic engineering matter providing revised assessment modified proposal january 2001 report associated verbal comment panel term car parking generation turnbullfenner based conclusion observation made thursday 20 may saturday 29 may 1999 site associated car parking turning movement count mr turnbull indicated reasonable expect traffic parking generated existing shopping centre could extrapolated project likely need expanded centre survey conducted hourly basis 9am 9pm found 34 parked vehicle maximum noted occurred 7pm friday evening associated activity fast food outlet mr turnbull assessment car parking need related additional generated car parking directly additional proposed leasable floor area 455m2 present planing scheme parking provision use shop rate 8 100m2would require 36 space whereas total 24 additional space proposed site modified proposal provision made planning scheme reduce car parking provision subject permit reference decision guideline set clause 52 06 1 panel noted apart merit modified proposal reduction sought date consequence proponent undertook submit responsible authority amended planning application sought car parking reduction subject site abutting existing centre consolidated onto single title subsequently received council see appendix e turnbullfenner empirical assessment car parking need indicated present mix office 3 5 space per 100 m2 shop 8 space per 100 m2 terrace adequate result evident 75 provision total 35 actual space compared calculated need 47 space mr turnbull note mixed nature present centre project likely future distribution shop office lower car parking generation proponent reinforced point firm expression interest tabled panel information indicated likely take new premise office type us shop e accountant solicitor estate agent also pointed panel various us tended share parking example fast food customer peak coming quite different time day week say retail florist also presently proposed factor mr turnbull able project future generated car parking rate lower existing demonstrated peak demand 6 3 space per 100m2generally friday evening traffic consultant gave panel professional view follows turnbullfenner undertaken various survey specialty shop opinion rate 4 5 5 space per 100m2are appropriate period peak parking demand appropriate rate office us order 3 5 space per 100m2 basis mr turnbull calculates belief conservatively additional parking demand 24 space would generated modified proposal belief reorganised car park total 58 site space creating additional 24 space provide adequate number site car space meet peak parking demand turnbullfenner believe improved pedestrian connectivity adjacent shopping centre residential development immediately north peak parking demand reduced matter also addressed hame sharley opposing submission state clear centre unreasonably rely availability offsite carparking endeavour hill shopping centre provide excess car parking demand generated proposal submission view expansion smaller neighbouring centre opportunistic development competitor regard claim opportunism without forming final view matter panel belief element opportunism risk exist entrepreneurial investment represented development shopping centre generally range size location believed negative consideration clear panel site inspection tension already exists two centre regard co operative parking arrangement particular note presence chain wire fence restricting pedestrian access north blocking vehicular access raymond mc mahon boulevard main centre near entry point terrace panel would agree hame sharley contention reduction car parking permitted proposal would unlikely proceed panel however belief car parking requirement reasonable appropriate particular circumstance individual centre council submission refers city traffic engineer endorse reduction 12 car parking space proposed extension due mixture office shop dispersal peak operating time additional space provided reconfiguration existing somewhat confusing parking layout panel accepts evidence turnbullfenner parallel opinion council officer reduction parking suggested modified proposal appropriate case panel belief small degree effect traffic car parking generated three element activity centre two shopping centre community facility would tend spill territory considered panel normal situation desirable synergy complementary activity centre element achieved panel would endorse additional desirable outcome present physical barrier centre removed mutual agreement mutual advantage 3 6 3 access issuesresidentsexpressed concern possibility casual shopper seeking say fast food purchase accessing terrace via hartley link instead preferred route via raymond mc mahon boulevard perceived congestion end truncated court led council support exhibited application 5 parallel car parking place hartley link accommodate eventuality proponent modified proposal consultation council abandon car parking provision hartley link relying domestic feel image extension together easy pedestrian route hartley link discourage traffic movement council representative traffic engineering expert witness could guarantee aforementioned strategy would dissuadeallpotential casual parker termination hartley link mr turnbull point however alternative land use outcome three large dwelling would generate 30 traffic movement per day together associated street car parking pointed panel would exist direct access extension public pathway south subject site used pedestrian lazy casual parker would largely discouraged panel noted council original statement elimination amenity loss casual parker hartly link modified proposal correctly read substantially reduce panel belief practice prove small concern time council could consider resulting need signage parking enforcement eventuality incidence casual parker attracted terrace increase unacceptably brought proposed extension 3 6 4 mattersother evidence submitted turnbullfenner report absence contention contrary access delivery vehicle turning queuing raymond mcmahon boulevard answered panel satisfaction 4 neighbourhood implications4 1 submitter concernsthere general reluctance residential submitter speak public hearing even although encouraged panel partially explained previous lack knowledge modified proposal referred previously 4 1 1 amenity issuesmr swee wah yuen 128 james cook drive signatory opposing petition spoke behalf 12 party made submission time public exhibition signatory generally located distant proposed development original submitter nevertheless wished support concern raised formal submission amenity issue odour vermin increased traffic pollution associated additional shop cited whilst traffic issue dealt panel satisfaction issue unwelcome emission food outlet addressed mr harry nicholls behalf nicholls gledhill speaking owner operator existing centre proponent extension able claim never one complaint emission suchlike 14 year history terrace operation including three existing fast food establishment panel absence claim contrary accepts proponent site estate agent landlord run tidy ship panel belief tabled expression interest documentation likely additional food outlet would specialty bakery whose odour unlikely unwelcome neighbouring resident issue visual intrusion raised submission m dianne foxof number 22 hartley link kind enough allow panel view proposed site elevated vantage point front porch clear panel position residence north side hartley link would continue enjoy uninterrupted view medium far distant skyline largely due domestic scale modified proposal settlement one metre western slope site proposed work fact le intrusive existing adjacent residence considerably le potential mass three two storey dwelling proposed amendment proceed reason m fox reasonably accepting modified proposal reinforced open offer mr nicholls discus outstanding project detail still concern neighbouring resident stated wished maintain good relationship immediate community several resident indicated hearing intended take mr nicholls offer 4 1 2 concernsthe final opposing submitter present mr max de souza indicated satisfied described modified proposal cosmetic change raised doubt need additional shop impact residential character surrounding neighbourhood particular dwelling hartley link council representative covered issue need relationship adopted strategic direction presence net community benefit represented proposal accepted panel de souzas however maintained additional matter share submitter go first informed prospect expansion terrace entered contract purchase lot vicinity time negotiation proponent council commenced early 1999 direction hearing regard matter panel mr de souza request asked council investigate circumstance 1998 contract sale sale 80 heatherton road endeavour hill thesection 173agreement contained within hearing council reported contract sale relates stage four residential subdivision 80 heatherton road endeavour hill includes as173agreement applicant villa world council although agreement subdivision relate residential development land including lot 55 56 57 hartley link nothing agreement preventing owner subject site subsequently applying rezone land council subsequently also confirmed council policy thatprevents rezoning land certain time period de souzas would expected whilst panel understand frustration purchaser land soon subjected potential rezoning immediate vicinity would endorse right owner pursue planning change based merit backed strategic intent mr de souza criticising council silence matter proposed amendment prior becoming public end 1999 take account council need maintain commercial confidentiality formally considered proposal applicant residual concern mr de souza land marketing program former owner villa world limited matter panel reflect panel remains satisfied matter raised various written verbal submission either adequately addressed change contained modified proposal carry sufficient planning weight panel support amendment revised proposal 5 conclusion recommendations5 1 conclusionsthe panel concludes amendment c17 together planning application p10 00 incorporating modified proposal appropriately respond state local strategic intention regard expansion activity centre city casey generally endeavour hill activity centre specifically panel concludes aesthetic built form landscaping traffic arrangement contained modified proposal commendable approach minimising potential negative impact interface business zone residential zone action proponent ie submission amended planning application received responsible authority formally include may 2000 activity centre strategy casey planning scheme necessary conclude matter put panel city casey may need review planning administrative procedure would include timely informing submitter proposal substantial modification proposed prior consideration proposal responsible authority panel 5 2 recommendationsin response appointment consideration proposal panel recommends amendment c17 casey planning scheme exhibited approved andthat planning permit p10 00 generally modified issued subject following correct description subject land submitted panel subsequent hearing accurate description modified proposal including proponent request reduce car parking provision clause 52 06 draft permit condition exhibited modified accordingly including reference tabled landscape plan achieve consistency appendix astrategic assessment guidelinesplanning panel victoriastrategic assessment guidelinesthe broad issue panel advisory committee need consider strategic basis amendment proposal amendment proposal properly considered implication state planning policy framework local planning policy framework change municipal strategic statement local policy dealt amendment documentation would consequence necessary proposed change municipal strategic statement local policy result amendment proposal assist panel advisory committee considering issue following matter specifically addressed planning authority submission panel advisory committee commented panel advisory committee report matter relevant stated reason rather matter simply ignored sppfwhat aspect state planning policy frameworkare relevant amendment proposal respond state planning policy framework consistent msshow amendment proposal accord municipal strategic statement seek implement strategy amendment proposal accord municipal strategic statement seek implement way proposed change municipal strategic statement strategic basis change municipal strategic statement sought amendment proposal proposes change municipal strategic statement planning authority support change effect change municipal strategic statement rest municipal strategic statement right cumulatively change may made municipal strategic statement amendment proposal local policieswhat local policy amendment proposal affect affected amendment introduces change local policy done respond demonstrated need discretion local policy assist council exercising policy assist exercise discretion add decision guideline already planning scheme performance basis prescriptive another better tool could used ministerial directionshas amendment proposal considered relevant ministerial direction appendixbexhibited amendmentappendix cmodified proposalappendix dschedule tabled documentsschedule tabled documentsaerial photograph site activity centreearly proposal commercial development site october 9 1998 zoning mapsurvey plan piney ridge heatherton road endeavour hill tentative plan subdivision heatherton road endeavour hill planning permit p537 97 subdivision land heatherton road endeavour hill letter city casey regarding possible rezoning subject land dated 11 9 98 13 8 98expressions interest proponent potential lessee proposed extension terrace appendix efurther information providedby proponentappendix ffurther information providedby responsible authority |
Melton City Council v Minister for Planning [2022] VSCA 144 (26 July 2022).txt | melton city council v minister planning 2022 vsca 144 26 july 2022 last updated 26 july 2022supreme court victoriacourt appeal eapci 2021 0133melton city councilapplicantvminister planningrespondent judge emerton p niall osborn jjawhere held melbournedate hearing 6 june 2022date judgment 26 july 2022medium neutral citation 2022 vsca 144judgment appealed 2021 vsc 700 richardsj administrative law minister reason exemption unders 20 4 theplanning environment act 1987 vic referred approval environment management plan subsequently found valid whether judge erred failing find error law face record alternatively jurisdictional error whether approval material decision leave appeal refused counselapplicantmr e nekvapil m c mintzrespondent mr cj horan qc mr bc chessellsolicitorsapplicant best hooper lawyersrespondent victorian government solicitor officeemerton pniall jaosborn ja west gate tunnel project major infrastructure undertaking west melbourne project excavation twin tunnel produce vast quantity spoil may contain contaminant part project tender sought disposal spoil cleanaway operation pty ltd cleanaway tendered basis would take spoil treatment storage site operated melbourne regional landfill ravenhall proposal municipality melton applicant responsible local government authority council order operate site purpose necessary meet two independent regulatory condition planning approval approval theenvironment protection act 1970 environment act 1 two regime independent sense relevant decision made different decision maker applying different statutory criterion order proposal lawfully undertaken approval required satisfying one regime mean approval would follow regime planning scheme approvalin order proposal proceed planning perspective necessary relevant planning scheme melton planning scheme amended end 31 july 2020 cleanaway requested minister planning minister amend melton planning scheme facilitate use development part melbourne regional landfill ravenhall spoil processing facility minister subsequently prepared amendment c222melt amendment would approved insert incorporated document titled ravenhall spoil processing facility october 2020 melton planning scheme incorporated document section 35of theplanning environment act 1987 planning act empowers minister amend planning scheme section 17 18 19 planning act set certain requirement giving notice proposed amendment planning scheme purpose allowing participation process section 20 4 provides minister may exempt requirement s 17 18 19 respect amendment minister considers compliance requirement warranted interest victoria part victoria make exemption appropriate 19 november 2020 minister made two decision planning act decision 20 4 exempt requirement s 17 18 19 respect amendment exemption decision b decision 35 approve amendment approval decision notice approval amendment published government gazette 23 november 2020 required 36 1 planning act effect decision give planning approval 2 use development site ravenhall spoil processing facility receipt storage treatment handling testing analysis containment placement removal site spoil generated construction project reason exemption decision minister able make approval decision without first complying notice public submission requirement pt 3 planning act respect amendment 3 minister planning authority one consequence exemption 20 4 requirement 19 minister receive submission proposed amendment need refer panel consideration minister gave written reason decision minister reason environment act decisionstheenvironment protection management tunnel boring machine spoil regulations2020 |
O'Hearn (formerly DAO (No 4)) v R [2021] NSWCCA 103 (21 May 2021).txt | hearn formerly dao 4 v r 2021 nswcca 103 21 may 2021 last updated 3 june 2021court criminal appealsupreme courtnew south walescase name hearn formerly dao 4 v rmedium neutral citation 2021 nswcca 103hearing date 26 april 2021decision date 21 may 2021before hoeben cj cl 1 n adam j 2 hidden aj 3 decision 1 application extension time granted 2 leave appeal refused catchword criminal law application leave appeal conviction charge sexual abuse child credibility prosecution witness committed offence kind claim witness revealed whole offending witness subsequently convicted offence kind conviction relied upon fresh evidence whether conviction could used evidence witness guilt additional offenceslegislation cited crime act 1900 nsw 474dcriminal appeal act 1912 nsw 5 1 b evidence act 1995 nsw s 91 106vexatious proceeding act 2008 nsw case cited ainsworth v burden 2005 nswca 174dao v r 2 2014 nswcca 126hollington v hewthorn co ltd 1943 kb 587mrw v r 2011 nswcca 260r v abou chabake 2004 nswcca 356 149 crim r 417r v davidson 1 2019 nswsc 980r v heuston 2003 nswcca 172 140 crim r 422category principal judgmentparties david anthony hearn applicant regina respondent representation counsel dalton sc curry applicant h robert respondent solicitor bannister lawyer applicant director public prosecution respondent file number 2009 60628 2012 352940decision appeal court tribunal district court nswjurisdiction criminalcitation n adate decision 22 august 2016before cogswell sc dcjfile number 2009 60628 2012 352940judgmenthoeben cj cl agree order proposed hidden aj reason provided honour n adam j agree order proposed hidden aj reason provided honour hidden aj applicant catholic priest tried several year respect multiple allegation historical child sexual abuse one trial conducted 2012 involved number complainant including two identified initial sm mb applicant found guilty offence charged successfully appealed conviction dao v r 2 2014 nswcca 126 relation sm mb court ordered new trial trial comprising offence alleged sm mb another complainant took place 2016 applicant found guilty offence relating sm mb jury unable agree upon verdict respect allegation third complainant proceeding applicant seek leave appeal pursuant tos 5 1 b thecriminal appeal act 1912 nsw conviction respect sm mb principal focus argument case relating mb seen sole ground application founded upon said fresh evidence arising trial another catholic priest vincent ryan took place 2019 allowing later development application still time reason set affidavit applicant solicitor however appropriately crown prosecutor court accepted question leave extend time turn merit application evidencegiven limited issue raised application relevant evidence trial summarised briefly retrial evidence complainant presented playing recording evidence original trial sm born 1973 lived muswelbrook 1987 13 year old applicant appointed assistant parish priest time sm attending local catholic high school altar boy church applicant conducted youth group sm member one activity group wrestling sm difficult time home school applicant invited come presbytery chat sexual abuse alleged taken place detail allegation need set sufficient say three occasion presbytery applicant alleged sexual contact boy course wrestling mb born 1980 offence relating alleged committed 1990 1991 1990 applicant appointed assistant priest cessnock vincent ryan parish priest also applicant running church youth group mb also displaying behavioural difficulty home applicant giving personal attention beyond involvement group permission mb parent applicant began attend police citizen youth club played squash twice week applicant would pick home drive squash court period time applicant would take park called kitchener park instead squash court applicant talked mb behaviour kitchener park sexual abuse alleged begun also need recite detail abuse sufficient convey gave rise number count indecent assault sexual intercourse without consent comprising indecent touching fellatio offence said occurred kitchener park presbytery applicant gave evidence denying offence sm said never invited presbytery unless one youth group activity mb denied ever taken kitchener park presbytery indeed denied ever kitchener park period mb evidence applicant would pick white car thought either holden toyota camry relevant time vincent ryan drove white holden commodore applicant gave evidence time driving red camry bought 1989 shortly left cessnock parish may 1991 purchased white camry evidence called defence case supporting assertion ownership use red car vincent ryan use white sedan mb made complaint abuse 2008 later 20 altar boy cessnock relevant time evidence altar boy responsibility vincent ryan gave description applicant inconsistent evidence crown case evidence conveyed consistent appearance vincent ryan put mb cross examination may mistaken vincent ryan applicant abuser firmly denied vincent ryan called crown case convicted numerous charge sexual abuse boy period many year pleaded guilty charge served lengthy term imprisonment gave evidence mid 1990s confessed police whole offending identified victim including 18 boy known police amounted 27 boy evidence certain mb one boy said recollection mb know mb family never home never played squash never cessnock pcyc time vincent ryan gave evidence charged offence sexual abuse boy involving two additional complainant denied allegation awaiting trial respect charge relation one complainant alleged sexual interference cessnock 1987 1991 altar boy church sexual conduct alleged relation complainant similar alleged mb present case put mr ryan cross examination charged offence sexual nature boy priest although nature circumstance conduct alleged put agreed charged offence said denied absolutely applicationthe present application focussing conviction relating mb brought following ground absence fresh evidence trial led miscarriage justice trial vincent ryan charge relation two additional complainant referred took place yehia sc dcj sitting without jury early 2019 five count four relating complainant cessnock one relating complainant earlier time different location honour found guilty count fifth related cessnock complainant conviction constitute fresh evidence relied upon court applicant represented mr dalton sc m curry neither appeared trial written submission characterised fresh evidence mr ryan subsequent conviction trial offence never admitted committed two additional victim never disclosed argued important jury proper consideration defence case trial particular whether crown excluded reasonable hypothesis father ryan committed offence mb fresh evidence also argued directly relevant jury proper consideration credibility reliability mr ryan evidence tending prove either deliberately lying evidence mistaken otherwise compelling evidence recalled every one victim although submission refer conviction fresh evidence implicit relied upon simply bare fact conviction particularly far cessnock complainant concerned detail offence found proved reliance placed decision court inr v heuston 2003 nswcca 172 140 crim r 422 reference court following review 474d thecrimes act 1900 nsw court allowed fresh evidence evidence given police royal commission pattern corrupt conduct part police officer involved investigation offence alleged appellant evidence would enabled strong attack upon credibility officer court allowed appeal directed new trial familiar principle governing court reception fresh evidence summarised comprehensively kirby j inr v abou chabake 2004 nswcca 356 149 crim r 417at 63 427 8 recently expressed succinctly bathurst cj james johnson jj agreed inmrw v r 2011 nswcca 260at 46 follows circumstance sought conviction quashed new trial ordered three question need considered first evidence fresh evidence sense available appellant time trial second credible capable belief third significant possibility jury acting reasonably would acquitted appellant effect written submission criterion clearly met fresh evidence relied upon present case submitted crown prosecutor dispute conviction relating mb set aside also would relating sm trial mb allegation admitted tendency evidence crown case relation sm response crown prosecutor relied upons 91of theevidence act 1995 nsw provides exclusion evidence judgment conviction 1 evidence decision finding fact australian overseas proceeding admissible prove existence fact issue proceeding 2 evidence part admissible prove existence fact may used prove fact even relevant another purpose written submission crown prosecutor noted section reflects common law position established inhollington v hewthorn co ltd 1943 kb 587 held evidence magistrate conviction driver careless driving inadmissible subsequent action damage negligence way example application ofs 91 crown prosecutor cited decision davy j inr v davidson 1 2019 nswsc 980 crown sought lead evidence accused tendency inflict violence particular manner tender agreed fact previous prosecution district court reason sentence judge matter davy j held 38 evidence precluded bys 91 inattorney general new south wale v martin 2015 nswsc 1372 simpson j occasion considers 91in context tender certain decision judgment proceeding thevexatious proceeding act 2008 nsw honour explained approach issue 13 way whether 91 operates exclude use decision judgment depend upon analysis three thing fact issue proceeding ii fact found decision iii use attorney general seek put judgment fact seek prove use applying analysis present case crown prosecutor argued fact issue judge yehia trial whether vincent ryan sexually abused two additional complainant honour found crown prosecutor put inference conviction honour rejected ryan evidence found offence occurred alleged complainant fact acquitted one count respect cessnock complainant immaterial present purpose crown prosecutor noted reliance placed conviction prove mr ryan either deliberately lying mistaken evidence recalled every one victim thereby relying upon judge yehia finding ryan credibility reliability prove witness lacking credibility applicant trial via finding committed offence two complainant unrelated applicant trial proceeding argued precluded 91 toheuston crown prosecutor pointed evidence given police royal commission finding commission received fresh evidence see leading judgment hodgson ja 28 35 written submission reply counsel applicant developed orally mr dalton issue sought addressed somewhat different approach said reliance placed upon judge yehia reason herfindingsas mr ryan credibility reliability prove witness lacking credibility applicant trial simply fact mr ryan conviction judge yehia relied upon noting applicant trial mr ryan denied committing offence relating additional complainant submitted conviction would admissible pursuant tos 106of theevidence act section course division 1 ofpart 3 7 dealing credibility rule relevantly present purpose 106provides 106 exception rebutting denial evidence 1 credibility rule apply evidence relevant witness credibility adduced otherwise witness cross examination witness substance evidence put witness ii witness denied admit agree substance evidence b court give leave adduce evidence 2 leave subsection 1 b required evidence tends prove witness b convicted offence including offence law foreign country submitted retrial conviction would relevant mr ryan credibility would admissible without leave court virtue ofs 106 2 b accordingly would relevant another purpose within meaning ofs 91 2 however although logically conveyed finding fact adverse applicant credibility upon based could conformably subsection used establish fact reference made consideration ofs 91 2 inainsworth v burden 2005 nswca 174 put shortly defamation proceeding based upon allegation made defendant respondent imputing plaintiff appellant fit proper person hold gaming licence associated holder licence appeal related trial judge rejection plaintiff tender judgment licensing court accepting fit proper person plaintiff case demonstrated malice part defendant persistence asserting truth allegation face finding contrary licensing court trial judge rejected evidence basis present relevance court appeal held error however 108 109 hunt aja handley mccoll jja agreed considered application evidence ofs 91 noting 108 trial judge acknowledged thats 91 2 would permitted admission tendered prove fact found judgment honour continued 109 clear thats 91doesnotprevent tender judgment contain finding existence fact relevant issue trial tendered merely prevents judgment tendered purpose proving existence fact admissible purpose present case order demonstrate would persuaded honest minded person defendant allegation false may used prove existence fact submitted notional retrial applicant mr ryan credibility could tested cross examination basis evidence led 2019 trial complainant witness acknowledged decision regard would matter trial judge court order retrial fleshing oral evidence mr dalton said retrial would mr ryan conviction admissible unders 106 could also cross examined detail offence maintained denial two additional complainant could called give evidence event acknowledged would matter jury ass evidence ofs 91 2 jury would directed disregard conviction assessment process would effectively involve trial within trial direction might easy one jury grasp mr dalton accepted conviction amount fresh evidence evidence mr ryan trial upon based presumably available time applicant trial although mr dalton questioned whether trial judge would allowed complainant give evidence mr ryan trial still pending crown prosecutor pointed notional retrial mr ryan conviction would admissible unders 106simply denied offence giving evidence trial presently consideration section 106is directed denial conviction conduct upon based however retrial could put cross examination unlikely event denied could proved one way conviction could evidence question however purpose would evidence doubt acknowledging fact conviction mr ryan would continue protest innocence offence nevertheless fact conviction would admissible significance would limited credibility generally applicant trial jury made aware mr ryan convicted numerous offence sexual abuse involving 27 boy difficult see evidence conviction sexual abuse two boy would significant impact upon jury assessment credibility cannot said without additional evidence significant possibility jury acting reasonably would acquitted applicant fundamental question whether absence fresh evidence applicant trial led miscarriage justice fresh evidence mr ryan 2019 conviction could miscarriage conviction would available applicant trial evidence mr ryan indeed committed additional offence virtue ofs 91they available purpose accordingly concluded present application insufficient merit warrant grant leave appeal would grant application extension time would refuse leave appeal amendments03 june 2021 title amended 3 june 2021 update judgment number 4 dao v r 3 handed published 2016 2016 nswcca 282 03 june 2021 anonymisation applicant name lifted request party case name party amended reflect change |
Carter, Charles [2003] MRTA 5326 (25 July 2003).txt | carter charles 2003 mrta 5326 25 july 2003 last updated 25 september 2003 2003 mrta 5326catchwords review visa refusal class bq subclass 139 skilled designated area sponsored visa public interest criterion 4005review applicant charles cartershirley emily carterdavid charles carteramanda jane carterjoshua william carteroliver george carterbethany louise cartervisa applicant abovetribunal migration review tribunalpresiding member steve karasmrt file number s03 03077dept file number 2001 014800date decision 25 july 2003at canberradecision tribunal remit application made visa applicant skilled australian sponsored migrant class bq visa department immigration multicultural indigenous affair reconsideration direction visa applicant joshua william carter meet health requirement referred regulation 139 231 schedule 2 regulation subclass 139 skilled designated area sponsored visa statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural indigenous affair delegate mr david charles carter primary visa applicant national england born 20 march 1963 applied wife amanda jane carter three child joshua william carter oliver george carter bethany louise carter skilled australian sponsored migrant class bq visa 4 december 2001 delegate decided refuse grant visa 4 february 2003 jurisdiction standing2 review applicant charles carter wife shirley emily carter parent primary visa applicant lodged application review tribunal 29 april 2003 decision refuse primary visa applicant family subclass 139 visa 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 generally member family unit applied visa together least one visa applicant must meet primary criterion visa applicant need meet secondary criterion 6 criterion policy immediately relevant review legislation item 1128b schedule 1 regulationsregulation 139 231 schedule 2 regulations7 tribunal generally regard regulation stood time visa application however subsequent amendment may apply circumstance evidence8 tribunal following document t1 mrt case file s03 03077 d1 departmental file 2001 014800 9 delegate stated visa granted basis primary visa applicant child joshua william carter meet health requirement therefore applicant meet public criterion 4005 particular section 4005 c ii review applicant stated lodging application review decision maker erred fact law finding applicant joshua william carter satisfy public criterion 4005 decision maker erred finding applicant satisfy regulation 139 231 10 23 july 2003 tribunal advised facsimile medical officer commonwealth indicated joshua william carter met health requirement granted medical clearance dated 2 july 2003 consequently satisfies regulation 4005 c ii regulation findings11 time visa application lodged skilled australian sponsored migrant class bq contained following subclass subclass 139 skilled designated area sponsored subclass 138 skilled australian sponsored subclass respect claim advanced subclass 139 skilled designated area sponsored suggested submitted visa applicant meet key criterion subclass 12 tribunal find evidence material applicant joshua william carter meet health criterion referred regulation 139 231 regulation reason conclusion13 given finding made appropriate course remit visa application department consider remaining criterion visa applied decision14 tribunal remit application made visa applicant skilled australian sponsored migrant class bq visa department immigration multicultural indigenous affair reconsideration direction visa applicant joshua william carter meet health requirement referred regulation 139 231 schedule 2 regulation subclass 139 skilled designated area sponsored visa |
B [2002] MRTA 6443 (4 November 2002).txt | b 2002 mrta 6443 4 november 2002 last updated 31 march 2003 2002 mrta 6443catchwords review visa refusal subclass 050 bridging e abide condition security decisionvisa applicant btribunal migration review tribunalpresiding member michael northcottmrt file number n02 07613dima file number clf2001 66496clf2001 67060date decision 4 november 2002at sydneydecision tribunal remit decision review reconsideration direction visa applicant meet criterion 050 211 050 212 050 221 050 223 grant bridging visa e class andthe tribunal remit decision relation requiring security direction security amount 3 000 required security compliance condition 8101 8401 8505 8506 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 applied bridging visa e class 23 october 2002 delegate decision refuse grant visa made 25 october 2002 jurisdiction standing2 visa applicant lodged application review tribunal 27 october 2002 application review decision refuse visa section 338 4 act review decision request security paragraph 4 02 4 f regulation 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 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 issued 16 may 2002 msi 336 bridging e visa subclass 050 legislative framework guideline issued 13 september 2001 effect 1 november 2001 case tennakoon 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 tribunal generally regard regulation regulation stood time visa application however subsequent amendment may apply circumstance 8 applicant bridging e visa subclass 050 general must satisfy primary criterion set inpart 050of schedule 2 regulation date application date decision 9 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 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 10 case delegate satisfied visa applicant would abide condition would imposed visa one granted amount security would satisfied delegate visa applicant would tribunal must therefore consider whether satisfied visa applicant abide condition imposed visa whether security required compliance condition much security evidence11 tribunal mrt case file n02 07613 department case file clf2001 66496 clf2001 67060 reveal following 12 visa applicant arrived australia 8 october 2001 holder visitor visa due cease 28 december 2001 wife accompanied 13 13 december 2001 officer department located visa applicant wife property rural victoria officer claim property renowned housing people work adjacent property area fruit picking visa applicant visitor visa cancelled breach condition 8101 work visa applicant maintained working rather visiting area holiday detained 14 visa applicant attempted lodge protection visa 29 january 2002 application deemed ineligible application accompanied application fee 15 visa applicant next lodged application protection visa 1 february 2002 associated application application bridging visa subclass 050 16 4 february 2002 decision made refuse grant visa applicant bridging visa subclass 050 delegate would satisfied visa applicant would abided condition attached visa security 5000 lodged security lodged application refused 17 20 february 2002 decision made refuse grant visa applicant protection visa decision affirmed refugee review tribunal 16 april 2002 18 visa applicant lodged appeal federal court 8 may 2002 19 25 july 2002 visa applicant lodged application bridging visa subclass 050 refused 26 july 2002 visa applicant failed lodge security 5000 visa applicant seek review decision 20 visa applicant federal court appeal decided department favour 18 september 2002 lodged appeal full federal court 4 october 2002 appeal still outstanding 21 23 october 2002 visa applicant lodged another application bridging visa subclass 050 offering lodge security 3000 delegate however considered amount security would ensure visa applicant would abide condition would imposed upon visa refused grant 25 october 2002 22 application review lodged migration review tribunal 25 october 2002 23 visa applicant direction hearing full federal court appeal 30 october 2002 officer tribunal informed time decision appeal still pending 24 hearing visa applicant gave evidence may summarised follows confirmed immigration history given b working detained wife farm 2 day 3 night waiting friend steven return c asleep officer located wife brought 5 000 australia detained australia 2 month time still retained 5 000 e released wife live mr mr spasaro mr mr spasaro also provide food f wife retain small amount saving emergency g wife report department directed wife advice department address advise department change address 2 day prior change h wife lodge security 4 000 mr mr spasaro lodge security 1 500 3000 fund lodged behalf j understands may forfeit security abide condition attached visa 25 mr mr spasaro gave evidence known visa applicant 3 month met detention centre able offer visa applicant accommodation food also able lodge security 1 500 understand visa applicant abide condition attached visa security may forfeited finding reasons26 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 27 basis evidence 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 28 tribunal must satisfied date primary application date decision criterion subclause 050 212 1 met criterion satisfied must established least one ground subclauses 050 212 2 9 met 29 visa applicant sought establish meet clause ground outstanding appeal full federal court decision refuse grant protection visa appeal lodged 4 october 2002 tribunal accepts evidence relation application find time application visa applicant met criterion subclause 050 212 1 person outstanding judicial review application decision refuse substantive visa finally determined meet subclause 050 212 3a 30 necessary visa applicant continue meet clause 050 212 time tribunal decision clause 050 221 tribunal satisfied visa applicant full federal court appeal finalised time tribunal decision tribunal find visa applicant satisfied clause 050 211 050 212 time decision visa applicant therefore satisfies clause 050 221 31 two remaining issue tribunal determine firstly whether visa applicant released detention abide condition imposed secondly whether decision request security ensure visa applicant would abide condition visa appropriate amount sought 32 considering whether visa applicant abide condition visa tribunal pursuant clause 050 612a must impose condition 8101 tribunal may also impose one condition 8201 8207 8401 8403 8505 8506 8507 8508 8510 8511 8512 tribunal considered condition 8401 8505 8506 appropriate case condition follows 81018101 holder must engage work australia 84018401 holder must report time time b place specified minister purpose 85058505 holder must continue live address specified applicant grant visa85068506 holder must notify immigration least 2 working day advance change holder address 33 tribunal taken account factor set msi 336 consideration whether visa applicant would abide condition regard visa applicant immigration history past dealing department 34 tribunal accepts visa applicant evidence abide condition 8401 8505 8506 nothing manner visa applicant gave evidence suggest way trying mislead tribunal 35 visa applicant visitor visa cancelled alleged working evidence relied department cancellation view tribunal scant particularly visa applicant evidence considered however visa applicant seek overturn cancellation raise small doubt tribunal mind visa applicant may abide condition 8101 may therefore visa applicant cannot satisfy clause 050 223 36 determining whether visa applicant meet requirement clause 050 223 tribunal must also consider whether payment security would provide added assurance necessary visa applicant would abide visa condition 37 visa applicant also made application review decision relating security deciding whether request security amount security request tribunal considered msi 336 issued 13 september 2001 msi 336 give guidance issue security state part 3 3 5 10 limit amount security officer may request bridging e visa applicant decision maker take account individual circumstance applicant financial circumstance guarantor decision maker decides ask security must ensure level security bond sufficiently high act strong incentive encourage compliance condition 3 3 5 11 general would appropriate request security amount le 5 000 unlikely act strong incentive compliance based department experience dealing security 3 3 5 12 case amount least 10 000 considered meaningful incentive compliance substantially higher security order 45 000 50 000 considered circumstance indicator due history applicant dealing department lesser amount likely act strong incentive compliance 3 3 5 13 applicant asked lodge high security one following factor history breached immigration law visa cancelled refused identify satisfaction compliance officer refused complete travel documentation depart australia previously absconded may forfeited earlier security actively avoided detained 38 security 3 000 lodged tribunal satisfied amount although small considered outline msi 336 sufficient ensure visa applicant abide condition 8101 39 tribunal therefore find visa applicant satisfies clause 050 223 40 application deemed also application subclass 051 protection visa claimed apparent evidence fact case satisfy criterion subclass 051 visa therefore tribunal find visa applicant eligible grant subclass 051 visa conclusion41 visa applicant satisfies clause 050 211 050 212 050 221 050 223 application review must succeed decision42 tribunal remit decision review reconsideration direction visa applicant meet criterion 050 211 050 212 050 221 050 223 grant bridging visa e class and43 tribunal remit decision relation requiring security direction security amount 3 000 required security compliance condition 8101 8401 8505 8506 |
Collie v Merlaw Nominees Pty Ltd (No 2) [2001] VSC 60 (9 March 2001).txt | collie v merlaw nominee pty ltd 2 2001 vsc 60 9 march 2001 last updated 15 march 2001supreme court victoriacommercial equity divisionnot restrictedno 5565 2000geoffrey malcolm collieplaintiffvmerlaw nominee pty ltd liquidation andfirst defendantdamien john nolansecond defendant judge warren jwhere held melbournedate hearing 7 march 2001date judgment 9 march 2001case may cited collie v merlaw nominee pty ltd 2 medium neutral citation 2001 vsc 60 receiver appointment receiver trust asset trustee liquidation liquidator whether liquidator would carry term trust whether liquidator receiver cost cost sought solicitor client basis interest statutory interest mortgage mortgagee possession trust asset whether creditor trust seek appointment receiver notice mortgagee possession appearance counselsolicitorsfor plaintiffmr g r ritter qc withmr murphyhowie maherfor first defendantmr r randall withms birdd e phillipsfor second defendantmr c harrisonvoitin walker davisher honour 28 february 2001 published reason proceeding adjourned matter enable party consider reason formulate final order matter return making order plaintiff seek essence order nature declaratory relief appointment receiver prudent trust statutory interest order judgment byrne j 24 november 1999 onwards cost solicitor client basis proposed order opposed second defendant represented occasion mr c harrison counsel urged second defendant appropriate declaratory order made largely proposed plaintiff otherwise order judgment plaintiff without appointment receiver whilst cost party party basis consented opposition articulated mr harrison behalf second defendant first defendant represented mr r randall m bird counsel position liquidator prepared administer prudent trust accordance reason judgment 28 february 2001 course final order may made hence said mr randall appointment receiver far client concerned considered unnecessary alternatively urged liquidator prepared appointed receiver prudent trust fact court disposed appoint receiver turn consider three aspect order urged plaintiff appointment receiverin prayer relief statement claim plaintiff always sought appointment receiver prudent trust appointment urged mr g ritter qc appeared mr murphy plaintiff basis relief consequential upon reason judgment liquidator turn urged receiver unnecessary appointment stand ready willing able carry order reflective reason mr harrison urged behalf second defendant appointment receiver relief last resort drastic nature seenational australia bank limited or v bond brewing holding limited 1991 vicrp 31 1991 1 vr 386 argued behalf second defendant evidence court support drastic relief nature appointment receiver informed mr harrison bar table order made 15 december 2000 judgment possession kew property mr nolan favour first mortgagee mbf investment pty ltd mbf supreme court proceeding 7348 2000 approximately 640 000 owing support first mortgage informed debt owed australia new zealand banking group limited anz order 220 000 debt owed trust including sum approximately 200 000 terranol connected associated interest mr nolan addition mr harrison informed amount owed way land tax also matter cost liquidator winding merlaw informed kew property valued present order 1 5 2 million hence said could reasonably anticipated first mortgagee would sell kew property pay mortgage thereafter liquidator could available fund meet trust creditor none matter deposed affidavit informed bar table mr nolan wife continue occupy kew property notwithstanding order possession made 15 december 2000 one view number compelling reason appropriate appointment receiver matter first time defendant aware plaintiff claimed consequential relief nature appointment receiver thus course trial proceeding open defendant lead evidence matter appointment receiver alternatively least time publication reason 28 february 2001 defendant notice evidence concerning appointment receiver ought properly court defendant availed opportunity putting evidence court find therefore restricted evidence trial history present proceeding first proceeding byrne j absence circumstance might said evidence trial prevailing history support appointment receiver second factor supporting receivership notwithstanding order made byrne j 24 november 1999 primary judgment delivered 22 december 1998 mr nolan capacity trustee prudent trust taken step comply order judgment byrne j little confidence therefore mr nolan take step comply order may make present proceeding said behalf unable take step relation kew property event injunction ordered previously beach j observe application made indeed foreshadowed vary dissolve injunction ordered beach j enable kew property sold meet trust creditor might said mr nolan ever intention fulfilling obligation trustee relation trust creditor demonstrated preparedness relevant purpose third matter argued favour receivership past conduct liquidator future role mr rambaldi ready willing able carry term prudent trust much demonstrated fact bring present proceeding behalf trust rather plaintiff mr collie resort self help inability liquidator pursue matter notwithstanding present position liquidator would comply reason judgment consequential order limited confidence overall circumstance matter liquidator would able say critical liquidator personally rather reflection difficulty prevail matter particular ongoing dispute nolan interest collie interest fifth matter argued support receivership fact arising published reason found indemnity subrogated mr collie basis subrogation appropriate receiver appointed considered another occasion principle applied appointment receiver trust seeyunghanns v candoora 19 pty ltd 1 suffice say present purpose court may appoint receiver trust asset necessary wellbeing trust seeattorney general v schonfield 2 furthermore 37 1 thesupreme court act1986 |
Van De Wiel and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 136 (1 March 2011).txt | van de wiel secretary department family housing community service indigenous affair 2011 aata 136 1 march 2011 last updated 1 march 2011administrative appeal tribunaldecision reason decision 2011 aata 136administrative appeal tribunal 2010 4324general administrative division restan van de wielapplicantandsecretary department family housing community service indigenous affairsrespondentdecisiontribunalmr egon fice senior memberdate1 march 2011placemelbournedecisionthe tribunal affirms decision made social security appeal tribunal dated 31 august 2010 sgd egon fice senior membersocial security age pension claim form delay lodging form holiday special circumstance backdating provision reasonably practicablesocial security administration act 1999ss 11 1 13 13 1 13 3a 16 16 2 schedule 2 clause 3beadle v director general social security 1984 aata 176 1985 7 ald 670boscolo v secretary department social security 1999 fca 106 1999 53 ald 277groth v secretary department social security 1995 fca 1708 1995 40 ald 541re andrew australian research council 2007 aata 1026 2007 44 aar 407chamber 21stcentury dictionaryshorter oxford english dictionaryreasons decision1 march 2011mr egon fice senior membermr stan van de wiel became eligible age pension 17 march 2010 reached age 65 year day attended centrelink office following day order complete claim form age pension centrelink office claim form available mr van de wiel offered provide photocopy form rather wait day mr van de wiel agreed posted residential address centrelink duly posted claim form mr van de wiel 18 march 2010 number reason set mr van de wiel lodge claim form age pension 27 may 2010 granted age pension 15 june 2010 although centrelink informed payment would commence 27 may 2010 mr van de wiel dissatisfied decision particularly spoken centrelink 18 march 2010 regarding applying age pension sought review decision authorised review officer aro 5 august 2010 aro informed mr van de wiel centrelink decision commence payment age pension 27 may 2010 correct mr van de wiel sought review aro decision social security appeal tribunal ssat 31 august 2010 ssat affirmed aro decision mr van de wiel lodged application review ssat decision tribunal 7 october 2010 issue arise determination whether mr van de wiel receive age pension 18 march 2010 b answer negative whether special circumstance reasonably practicable mr van de wiel lodge claim earlier date therefore claim deemed made day department contacted mr van de wiel contact centrelinkmr van de wiel testified attended centrelink office 18 march 2010 intending lodge claim age pension wait one hour served reached counter told office age pension claim form could complete centrelink officer told mr van de wiel would photocopy form would need wait period time centrelink officer suggested could copy form post mr van de wiel mr van de wiel agreed course action cover letter dated 18 march 2010 cheltenham office centrelink posted mr van de wiel age pension claim form cover letter stated need make sure receive payment earliest date possible must return claim request documentation 01 april 2010 reason cannot please contact u immediately time mr van de wiel overseas visitor staying temporary accommodation small flat mr van de wiel said two bedroom flat lack room slept couch visitor shared bedroom 19 march 2010 accompanied guest holiday tasmania stayed two week went sydney return mr van de wiel flat 1 may 2010 opened mail decided could deal completing age pension claim form visitor left said needed get information document storage likely take time believed obliged look guest extended intended stay australia due volcanic eruption iceland grounded aircraft throughout europe mr van de wiel said visitor left 7 may 2010 attended completing age pension claim form took entire day searching box storage locate material necessary obtain information enable complete claim form mr van de wiel read cover letter attached claim form stating form needed returned 14 day contact centrelink unable mr van de wiel also said read first page claim age pension pension bonus form plainly state return completed claim form centrelink customer service centre within 14 day able contact centrelink extra time statement regarding returning claim form within 14 day bold type event mr van de wiel said contact centrelink international office hobart regarding dutch pension believed centrelink information required also said detail required provided age pension claim required information receipt payment netherlands government detail pension took time locate although mr van de wiel finally lodge claim form 27 may 2010 unable provide explanation delay lodging claim 7 may 2010 visitor left europe payment age pensiona person eligible age pension must make claim pension person wish paid section 11 1 thesocial security administration act 1999 administration act provides 1 subject subsection 2 subdivision b person want granted social security payment b concession card must make claim payment card accordance division section 16 administration act explains person make claim social security payment provides claim made lodging written claim payment manner approved secretary department family housing community service indigenous affair secretary furthermore 16 2 administration act provides 2 written claim purpose subsection 1 one social security payment concession card must accordance form approved secretary claim lodged delivered person apparently performing duty place manner approved purpose secretary example centrelink office therefore order mr van de wiel made claim age pension required submit prescribed claim form centrelink office mr van de wiel fact 27 may 2010 schedule 2 administration act deal rule working start day payment social security benefit pension general rule set clause 3 clause 3 provides 3 start day general rule 1 person make claim social security payment b person qualified payment day claim made person start day relation payment day claim made therefore absence legislative provision mr van de wiel start day would 27 may 2010 however certain circumstance claim may deemed made earlier date provided certain condition met section 13 administration act deems claim made prior date lodged department contacted behalf person relation claim social security payment b person day department contacted qualified social security payment c secretary give person written notice acknowledging department contacted relation making claim person lodge claim social security payment within 14 day department contacted dispute fact mr van de wiel attendance centrelink office 18 march 2010 satisfies 18 march mr van de wiel reached age 65 year australian citizen resident australia question whether qualified receive age pension date therefore satisfying b although mr van de wiel lodge application date claim form sent cover letter dated 18 march 2010 letter confirmed centrelink contacted day regarding mr van de wiel intention claim age pension also explained needed return claim form requested documentation 1 april 2010 14 day mr van de wiel contacted department therefore condition set c satisfied problem course lie mr van de wiel lodge claim social security payment within 14 day contacted centrelink indicating intended claim age pension therefore find deeming provision set 13 1 administration act cannot apply mr van de wiel backdate start date age pension 18 march 2010 special circumstance provisionthere provision administration act may permit backdating start day person age pension lodged claim 14 day receiving acknowledgement letter centrelink contacted relation making claim may apply provided claim lodged 13 week department contacted condition application section set 13 3a administration act provides 3a purpose social security law department contacted behalf person relation claim social security payment b person day department contacted qualified social security payment c secretary give person written notice acknowledging department contacted relation making claim person lodge claim social security payment 14 day 13 week department contacted e secretary satisfied special circumstance case reasonably practicable person lodge claim earlier person taken made claim social security payment day department contacted expressionspecial circumstance usedin context social security act subject judicial comment many year full court federal court inbeadle v director general social security 1984 aata 176 1985 7 ald 670 said 674 difficult would question ignorance illiteracy isolation illness like would depend upon circumstance particular case whether constituted special circumstance think possible lay precise limit precise rule matter one director general bearing mind purpose power given phrase special circumstance although lacking precision sufficiently understood view require judicial gloss inboscolo v secretary department social security 1999 fca 106 1999 53 ald 277 french j said 281 282 18 word special conditioning reason circumstance guard entrance exercise many different statutory discretion generally futile search meaning term word essence instrumental direction decision maker discretion constrains lightly enlivened core requirement special circumstance special reason something unusual different take matter subject discretion ordinary course minister community service health v chee keong thoo 1988 fca 54 1988 78 alr 307at 324 burchett j require case extremely unusual uncommon exceptional secretary department social security v hodgson 1992 fca 338 1992 37 fcr 32 27 ald 309 108 alr 322 ingroth v secretary department social security 1995 fca 1708 1995 40 ald 541 kiefel j said 545 referring tobeadle scase present purpose sufficient observe would require something distinguish mr groth case others take usual ordinary case would course follow one conclude something unfair unintended unjust occurred must feature ordinary essence order avail backdating provision set 13 3a administration act mr van de wiel needed demonstrate circumstance unusual ordinary case mentioned mr van de wiel said open letter centrelink dated 18 march 2010 returned holidaying overseas visitor early may 2010 mr van de wiel conceded tell centrelink officer 18 march 2010 go away holiday would normal place residence week future doubt done centrelink officer would pointed would need lodge claim form day otherwise start day payment age pension would 18 march 2010 therefore find fact mr van de wiel went holiday away following two week period first contact centrelink circumstance could said usual ordinary case mr van de wiel simply failed inform centrelink would place residence mr van de wiel make enquiry start date age pension payment mr van de wiel also submitted understood centrelink essential detail regarding age residence nationality result prior contact regarding income support payment netherland government therefore concerned time lapse lodging age pension claim form however respect mr van de wiel assumption warranted certainly unusual ordinary circumstance many social security applicant receive pension payment overseas provided detail centrelink payment nevertheless required lodge claim form find cannot described aspecial circumstance mr van de wiel also explained even upon return place residence melbourne able complete claim form stated temporary accommodation look overseas guest stranded australia due iceland volcanic eruption particularly small unit lacked privacy respect submission reason mr van de wiel could simply contacted centrelink office explained circumstance time said landline flat rather mobile phone last occasion attempted contact centrelink left holding half hour respect mr van de wiel cannot find circumstance time described asspecial sufficiently concerned start date pension payment reason apparent evidence mr van de wiel could contacted centrelink office explain circumstance necessary lodge claim form time fact even overseas guest departed mr van de wiel complete lodge claim form three week explanation given delay found circumstance surrounding mr van de wiel delay lodging age pension claim form special strictly necessary determine whether reasonably practicable mr van de wiel lodge claim earlier date however event wrong special circumstance issue say something whether reasonably practicable mr van de wiel lodge claim earlier date expressionreasonably practicableis defined administration act must therefore given ordinary meaning regard context appears legislation wordpracticableis defined 1 capable done used successfully carried feasible chamber 21stcentury dictionary chamber dictionary also compare meaning ofpracticableandpractical word meanable done used etcbut practical connotation ofefficient sensible useful therefore judgemental view fair say wordpracticablehas implication necessary connotation reasonableness wordreasonableis defined theshorter oxford english dictionaryas 4 going beyond limit assigned reason extravagant excessive moderate therefore two word combined seems intended use expression context administration act must possible lodge claim form within stipulated time although cause excessive inordinate hardship inconvenience expressionas soon practicablehas judicially considered although context administration act frequently occurred migration case deputy president forgie inre andrew australian research council 2007 aata 1026 2007 44 aar 407 427 said referring number authority 52 authority reveal amount time permitted person must comply obligation act soon practicable must judged reference circumstance pertaining person person capacity comply obligation well reference obligation viewed way mr van de wiel capacity lodged claim form earlier date cannot doubt simply needed make clear centrelink 18 march 2010 going away holiday following day would therefore able lodge claim form week first contact occurred reason doubt mr van de wiel would completed form day fact queue long waiting period significant nothing mr van de wiel evidence suggest could waited complete form day furthermore add centrelink officer duty inform mr van de wiel start day could affected lodge form shortly first contact centrelink fact centrelink attempted inform cover letter 18 march 2010 course front page claim form regardless clear statement 14 day time limit mr van de wiel either overlooked disregarded whichever cannot say reasonably practicable lodge claim earlier time apparent said find mr van de wiel circumstance special reasonably practicable lodge claim earlier time therefore cannot satisfy provision allow extended period time first contact centrelink lodge age pension claim thereby preserving start date conclusiondespite making enquiry centrelink 18 march 2010 age pension date eligible receive mr van de wiel lodge claim 27 may 2010 failure lodge claim form within 14 day first contact centrelink mean start date cannot deemed 18 march 2010 although mr van de wiel explained reason late lodgement age pension claim form found circumstance time special reasonably practicable lodge claim earlier date therefore correct start date payment mr van de wiel age pension 27 may 2010 decision made ssat 31 august 2010 correct affirm decision certify thirty three 33 preceding paragraph true copy reason decision herein ofmr egon fice senior membersigned sgd e montalto associatedate hearing 17 february 2011date decision 1 march 2011representative applicant self representedrepresentative respondent carson centrelink advocacy branch |
Duegd, Shashikala [2003] MRTA 8785 (31 December 2003).txt | duegd shashikala 2003 mrta 8785 31 december 2003 last updated 3 march 2004 2003 mrta 8785catchwords review visa refusal subclass 115 remaining relative contactreview applicantnote cm data merge provides first review applicant detail please check cm insert review applicant detail necessary shashikala de deugdvisa applicantnote cm data merge provides first visa applicant detail please check cm insert visa applicant detail necessary jayaprakash ramamurthytribunal migration review tribunalpresiding member andrew carsonmrt file number v02 08476dept file number osf2000 116182date decision 31 december 2003at melbournedecision tribunal affirms decision review finding visa applicant entitled grant family migrant class bo visa statement decision reasonsapplication converting fe draft decision anautotextentry need inserted beginning heading sodr press f3 insert heading statement decision reason review1 application review decision made delegate minister immigration multicultural indigenous affair delegate mr jayaprakash ramamurthy visa applicant national india born 10 october 1960 applied family migrant class bo visa 1 february 2000 delegate decision refuse grant visa made 25 september 2002 jurisdiction standing2 mr shashikala de deugd review applicant stated sister visa applicant lodged valid application review tribunal 25 november 2002 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 item 1123a schedule 1 regulationspart 115of schedule 2 regulationsregulation 1 15 definition remaining relative regulation 1 03 definition relative policy procedure advice manual 3 pam3 interpretation remaining relative 6 tribunal generally regard regulation stood time visa application however subsequent amendment may apply circumstance evidence7 tribunal following document t1 mrt case file v02 08476 folio numbered 1 43 d1 departmental case file 2000 116182 folio numbered 1 146 8 visa applicant applied subclass 115 visa australian high commission new delhi sponsored shashikala de deugd aka kerkvliet nee ramurthy review applicant migrant entry australia review applicant granted australian citizenship 27 january 1998 9 review applicant provided various document showing use various surname including variation maiden surname muniswamappa ramurthy married surname kerkvliet unclear surname de deugd derives name review applicant used review application first name remains throughout 10 review applicant provided review application tribunal copy delegate decision record set information relied upon department file visa applicant indicated interview 24 september 2002 department regular ongoing contact brother u stated visa applicant interviewed english visa applicant speaking fluent english indicating fully understood question asked stated end interview visa applicant also asked hindi confirm statement made indicated fully understood question asked confirmed response visa applicant recorded indicating interview regular contact u based brother talked regular basis every 25 day since brother move u around 1980 stated information given visa applicant department telephone 8 august 2002 also interview 24 september 2002 visa applicant claimed maintained telephone contact casual talk brother u every 25 30 day noted visa applicant 2 sibling parent australia married brother u maintains contact 11 delegate refused application basis visa applicant able meet requirement ofregulation 1 15 1 c 12 review applicant lodged application review tribunal 25 november 2002 stating believed visa applicant aremaining relativeand consider visa applicant meaningful contact relative outside australia mentioned provided application copy delegate decision record 13 tribunal sent letter review applicant agent advising hearing scheduled 18 september 2003 17 september 2003 agent sent tribunal letter confirming neither review applicant visa applicant comfortable attending scheduled hearing requested decision made paper review applicant provided faxed letter dated 17 september 2003 stated family considered matter decided nothing able add hearing relation matter findings14 review applicant invited appear tribunal 18 september 2003 appear tribunal scheduled time agent advised previous day neither review applicant visa applicant would participating hearing view review applicant failure attend scheduled hearing tribunal decided subsection 362b 1 b act make decision review without taking action allow enable review applicant appear 15 time visa application lodged family migrant class bo contained following subclass 115 remaining relative 114 aged dependent relative 116 carer subclass respect claim advanced subclass 115 remaining relative claim evidence presented establish visa applicant meet key criterion subclass 16 order succeed application visa regulation necessary visa applicant satisfy criterion grant visa set inpart 115of schedule 2 regulation applicant must meet clause 115 211 115 212 time application time decision applicant must meet clause 115 221 basis delegate decision information relied upon making decision clear decision record submitted review applicant review application 17 clause 115 211 state 1 applicant remaining relative australian relative applicant 2 clause australian relative relation applicant mean relative applicant australian citizen australian permanent resident eligible new zealand citizen 18 visa applicant sponsored time application review applicant claimed visa applicant sister australian citizen lawfully permanently resident australia although visa applicant share surname review applicant married substantive evidence prove familial relationship tribunal note department accepted visa applicant review applicant sibling 19 time application time decision visa applicant must come within definition ofremaining relativedefined inregulation 1 15as follows 1 applicant visa remaining relative another person australian citizen australian permanent resident eligible new zealand citizen applicant satisfies minister person parent brother sister step parent step brother step sister applicant b person usually resident australia c applicant applicant spouse overseas near relative applicant applicant spouse usually reside country australia different country relative resides ii neither applicant applicant spouse contact relative within reasonable period making application applicant applicant spouse together 3 overseas near relative e applicant child turned 18 ii adopted australian citizen australian permanent resident eligible new zealand citizen adoptive parent overseas time making application adoptive parent residing overseas period least 12 month 2 regulation overseas near relative relation applicant mean person parent brother sister step parent step brother step sister applicant applicant spouse b child including step child applicant applicant spouse child turned 18 dependent child applicant applicant spouse ii turned 18 wholly substantially daily care control applicant applicant spouse relative kind c australian citizen australian permanent resident eligible new zealand citizen usually resident australia 3 purpose paragraph 1 c overseas near relative taken reside last known country residence unless applicant satisfies minister relative resides another country 20 definition ofremaining relativeinregulation 1 15sets three requirement must met visa applicant first requirement visa applicant must relative brother sister parent step brother step sister step parent australian citizen australian permanent resident eligible new zealand citizen second requirement relative usually resident australia third requirement visa applicant disqualified remaining relative operation subregulations 1 15 1 c 1 15 1 1 15 1 e 21 relation first requirement visa applicant claim review applicant sister australian citizen delegate appears accepted relationship applicant appears meet requirement paragraph 1 15 1 definition ofremaining relative 22 relation second requirement review applicant resided australia time visa application continues currently tribunal accepts requirement subregulation 1 15 1 b met 23 relation third requirement four ground specified subregulation 1 15 1 visa applicant may disqualified remaining relative ground visa applicant spouse usually reside country australia overseas near relative visa applicant spouse contact overseas near relative reasonable period preceding application visa applicant spouse together three overseas near relative visa applicant child turned 18 adopted australian adoptive parent overseas time application adoptive parent residing overseas period least 12 month 24 tribunal find evidence presented visa applicant brother u anoverseas near relativefor purpose definition subregulation 1 15 2 review applicant confirmed review application visa applicant residential address continues india address department communicated initial decision september 2002 regard subregulation 1 15 3 tribunal satisfied evidence presented visa applicant usually resides india whereas brother overseas near relative resides u stated decision record visa applicant clearly informed department regular contact u based brother telephone consequently tribunal satisfied visa applicant disqualified requirement subparagraph 1 15 1 c ii aremaining relative tribunal find time application visa applicant satisfy requirement definition ofremaining relativeand time application meet requirement clause 115 211 view need consider criterion would need met conclusion25 given finding made tribunal alternative affirm decision review decision26 tribunal affirms decision review finding visa applicant entitled grant family migrant class bo visa |
Gilbert, J. & Others v Jodaway Management Pty Ltd [2006] QCCTRV 2 (8 August 2006).txt | gilbert j others v jodaway management pty ltd 2006 qcctrv 2 8 august 2006 last updated 17 october 2006_______________________commercial consumertribunalcitation gilbert well listed attachment 1 application filed 02 august 2005 v jodaway management pty ltd 2006 cct v007 05parties gilbert june well listed attachment 1 application filed 02 august 2005vjodaway management pty ltdapplication number v007 05delivered 8 august 2006delivered brisbanehearing date 19 june 2006decision mr g spender mr p toohey mr greencatchwords retirement village dispute validity resident committeeretirement village act 1999 section 21 22 127 128 129 130 131 132 133 167 and191representation counsel applicant mr flemingrespondent mr prenticesolicitors applicant mr barr butler mcdermott egan solicitorsrespondent mr marshall john connor associate solicitorsdecision category classification anumber paragraph 54reasons decisionintroduction1this application filed 1 august 2005 undersection 167of theretirement village act 1999 theact five resident applicant palm spring retirement village village situated 15 carmichael court wynnum west seeking declaration resident committee established valid applicant june gilbert jack knight estelle walsh lillie haigh aukusitina lafaele member resident committee question jodaway management pty ltd respondent scheme operator theact manager village 2there 66 resident living 77 unit village one occupied live caretaker remaining 76 unit 42 owned jodaway pty ltd number unit leased resident long term lease pursuant original tenure jodaway pty ltd acquired village remaining unit owned resident occupy resident acquired freehold estate conversion village freehold occurred 2002 jodaway pty ltd acquired village village registered community title scheme body corporate unit owner member 3at hearing party submitted statement agreed fact five statement filed proceeding exhibit 1 2 3 5 6 admitted consent evidence statement director respondent mr issakidis admitted consent exception part paragraph 10 exhibit 4 minute annual general meeting resident 15 march 2005 also admitted consent exhibit 7 admission witness statement consent obviated need call oral evidence hearing application proceeded basis oral submission legal representative party agreed facts4the agreed fact applicant resident within meaning term resident contained insection 9of theact b 13 february 2005 notice delivered close practical resident placement notice door unit believed applicant occupied meeting take place dining room 17 february 2005 consider establishment resident committee c 14 february 2005 copy notice proposed meeting posted notice board notice removed direction scheme operator second notice posted notice board 15 february 2005 notice also removed direction scheme operator 16 february 2005 respondent issued notice annual general meeting included agenda consideration need otherwise establish resident committee pursuant tosection 127of theact e 16 february 2005 respondent issued notice resident advising resident obligation law otherwise attend applicant meeting f 17 february 2005 approximately 1 08 pm due unavailability dining room group resident attending meeting moved collectively western library room village meeting conducted e walsh walsh j gilbert n holsworthy n shaw r shaw c harbers j jones lafaele l haige bain j knight whereupon present resolved establish resident committee g scheme operator recognise legitimate resident committee established meeting 17 february 2005 h annual general meeting 15 march 2005 majority person present entitled vote voted establishment resident committee however minute agm show 34 people voted issue 9 voted 17 7 abstained issue determined5the issue determined theacta resident committee established period notice must given resident meeting elect inaugural resident committee take place relevant legislationthe provision theactin force material time relevant issue determined aresections 21 22 127 128 129 130 131 132 133 167 and191 21 retirement village dispute 1 aretirement village disputeis dispute scheme operator resident retirement village party right obligation resident residence contract thisact 2 subsection 1 retirement village dispute includes dispute compliance scheme operator resident 2section 91 capital replacement fund thisact whether particular failure comply offence thisact 3 section residentincludes former resident note provision thisactthere mean enforcement apparent face provision enforcement dispute resolution process available section 22 retirement village issuearetirement village issueis retirement village dispute b application order undersections 169to171or173 127 resident committee 1 resident retirement village may establish election conducted among resident committee 2 member resident committee hold office 1 year may elected b may removed time special resolution meeting village resident 3 resident committee may subject tosection 128 decide procedure b form subcommittee decide subcommittee procedure 4 invited resident committee scheme operator may attend resident committee meeting address member meeting 128 resident constitution 1 resident retirement village may majority vote resident resident meeting adopt constitution 2 constitution may inconsistent thisact b must provide matter prescribed regulation 3 committee must conform constitution 129 committee functionthe function resident committee deal scheme operator behalf resident day day running village complaint proposal raised resident 130 resident may make change revoke law 1 resident retirement village may special resolution resident meeting agreement scheme operator make change revoke law village 2 scheme operator agreement must unreasonably withheld 3 law may made non exclusive use enjoyment village 4 inconsistency law provision residence contract village provision prevails extent inconsistency 5 subsection 3 limit resident power another law make change revoke law 131 annual meeting 1 year scheme operator must call annual meeting resident retirement village soon reasonably practicable annual financial statement mentioned section 11321 available maximum penalty 100 penalty unit 2 however scheme operator must give resident least 21 day written notice meeting 3 annual meeting may held simultaneously meeting must held anotheract example meeting may held simultaneously meeting required thebody corporate community management act 1997 4 scheme operator must present statement meeting maximum penalty subsection 4 100 penalty unit 132 meeting 1 scheme operator resident committee retirement village may 14 day written notice given resident village call meeting resident 2 however urgent circumstance scheme operator resident committee may call meeting resident 21section 113 annual financial statement giving resident written notice meeting reasonable circumstance le 2 day 3 scheme operator may attend resident meeting address resident meeting resident meeting called scheme operator b resident meeting called resident committee vote special resolution c invited resident committee 4 scheme operator attends resident meeting called vote special resolution scheme operator must leave meeting scheme operator addressed meeting given reasonable opportunity address meeting special resolution voted unless resident committee invite scheme operator remain 5 scheme operator attends resident meeting resident committee invitation scheme operator must leave meeting scheme operator addressed meeting given reasonable opportunity address meeting unless resident committee invite scheme operator remain 6 section urgent circumstancesmeans circumstance prudent wait usual 14 day written notice meeting given 133 voting 1 following person entitled vote meeting resident retirement village either resident accommodation unit retirement village ii resident special resolution agreed resident retirement village entitled vote resident retirement village b former resident accommodation unit required section 10422 pay whole proportion general service charge 1 former resident accommodation unit 2 resident vote may cast resident b person resident appointed power attorney c person scheme operator resident appointed signed notice vote way proxy vote particular meeting stated notice 3 signed notice subsection 2 c appointing another person vote way proxy vote must relate 1 meeting 4 person may hold 2 proxy vote meeting 5 resident retirement village may cast vote postal vote resident meeting placing resident written vote container provided scheme operator purpose common area village least 24 hour time meeting held 6 scheme operator must provide secure locked container postal vote common area least 24 hour time meeting held maximum penalty 10 penalty unit 7 scheme operator must open allow opened container delivered chairperson meeting maximum penalty 10 penalty unit 8 scheme operator must deliver container chairperson meeting immediately chairperson open meeting maximum penalty 10 penalty unit 167 application reference disputea party retirement village dispute may apply tribunal party dispute reach mediation agreement dispute b party dispute attend mediation conference dispute c dispute settled within 4 month dispute notice given registrar party claim another party mediation agreement complied agreement within time specified time specified within 2 month agreement signed 191 tribunal order generally 1 tribunal may make order tribunal considers resolve retirement village issue 2 example tribunal may make 1 following order order party issue anything anenforcement order b order requiring party issue pay amount including amount compensation specified person apayment order c order party issue required pay amount specified person issue retirement village dispute order setting aside mediation agreement party dispute ii order giving effect settlement agreed party dispute 3 order may specify time compliance 4 without limiting subsection 1 section applies resident applies tribunal order undersection 169 170or171 evidence applicants6mr knight said statement filed 14 november 2005 exhibit 2 63 year age wife purchased unit 2 village 2002 said founding member first social club formed village said since body corporate annual general meeting 2004 body corporate member denied say running village involved planning resident committee 7he said wanted opportunity participate affair village resident needed join together make village peaceful happy place live without discrimination victimisation said village needed panel resident could communicate discus difference occur resident 8mr knight said 13 february 2005 9 00pm delivered copy notice unit number resident village notice informed resident meeting would held 17 february 2005 purpose establishing resident committee said placed notice door unit believed occupied resident saw number resident similarly deliver copy notice unit village said believed copy notice delivered every unit village 9mr knight said next day 14 february 2005 posted village notice board copy notice delivered resident 13 february 2005 also posted notice board nomination form election resident committee notice dated 14 february annexed statement jk2 notice read follows resident palm spring retirement village village currently resident committee provided provision theretirement village act 1999 accordingly provision ofsection 127of thatact meeting called undersigned resident wish participate election meeting held dining room thursday 17thfebruary 2005 1 00p section 127 1 theactprovides resident retirement village may establish election conducted among resident committee mean management present participate election management may attend first election meeting resident committee committee elected law requires election conducted resident among resident committee established call subsequent first meeting resident committee provision ofsection 127 4 retirement village act 1999 management may address resident resident committee meeting mr bill runciman hon secretary association resident queensland retirement village inc chair meeting oversee secret ballot used elect resident committee mr bill runciman available address meeting answer question floor nomination hereby called interested resident fill position chairperson 1 secretary 1 ordinary member 5 estelle walsh june gilbert meg mack tina lafaele jack knight 10mr knight said delivering notice unit spoke resident told proposed meeting 15 february 2005 became aware notice put notice board previous day removed accordingly placed another copy notice board 4 50pm day time caretaker village len sally williams immediately removed notice objected action told notice removed upon instruction scheme operator tried speak mr issakidis director respondent get explanation decision unable contact general manager village mr andrew fleming told acting order respondent instructed caretaker remove notice 11mr knight said 16 february 2005 respondent issued notice annual general meeting resident item 2 agenda contained notice statement meeting would consider need otherwise establish resident committee copy notice annexed mr knight statement jk4 notice state follows retirement village act 1999notice resident annual general meeting resident palm spring retirement village jodaway management pty ltd scheme operator advises annual general meeting pursuant tos131of theretirement village act 1999is held address meeting venue site main amenity area 15 carmichael court wynnum west 4178time date meeting 9 30am tuesday 15thmarch 2005the following agenda set issue considered agenda1 presentation audited annual financial statement palm spring retirement village assistance circulated ten 10 clear day prior meeting owner lot already received audited account part requirement thebody corporate community management act 19972 need otherwise established resident committee pursuant tos127of theretirement village act 1999 3 resident vote establish resident committee date time set meeting resident pursuant tos132of theretirement village act 1999giving le fourteen 14 day notice meeting proxy voting postal voting allowed governed bys133of theretirement village act 1999and calling nomination resident fill position of1 chairperson 1 2 secretary 1 3 ordinary member 5 4 general business 12mr knight said well issuing notice annual general meeting respondent issued notice resident specifically arguing proposed meeting 17 february 2005 establish resident committee respondent tried dissuade resident attending meeting 17 february 2005 emphasising statement notice resident obligation law otherwise attend meeting 17 february 2005 notice also annexed mr knight statement jk 3 notice following term resident palm spring retirement villageenclosed notice annual general meeting theretirement village act 1999 meeting open resident whether owner tenant tuesday 22ndof february 2005 owner unit eligible vote number issue including election committee next 12 month believe owner nominated stand committee elected doubt bring committee next 12 month issue resident require consideration circumstance support think fair action resident assistance outside influence attempted set committee without fair adequate noticeb without regard resident may absent entitled vote proxy postal vote set theretirement village act 1999 c without discussion due consideration resident whether resident want committee fact advised resident large majority writing indicated want committee without approval placed notice common property regarding proposed meeting set committee social committee andrew len sally fully support formed voted next tuesday body corporate committee representation resident seems owner could get support elected social committee know support elected body corporate committee try 2 day notice convene called meeting resident elect denying resident opportunity consider proposal disregard right underretirement village act 1999has supported association resident queensland retirement village impetus act forthe majority resident law conduct meeting resident association information neither spoken resident whole told object wish speak management owner properly convened meeting proper opportunity discussion still wish committee titled resident committee theni support establishment committee placed issue agenda attached notice also distributing set rule company scheme operator pursuant term residence contract rule adopt law body corporate typographical correction rule 1 27 whilst rule 28 40 rule occasioned behaviour one two resident obviously agenda commitment company scheme operator support ensure life resident village spoilt personal inconsiderate action breach rule resident amount breach residence contract protection appropriate legal action taken resident including limited seeking restraining order cost damage obligation law otherwise attend tomorrow meeting 13on 17 february 2005 mr knight attended western library room village proposed meeting commenced approximately 1 00pm present meeting e walsh walsh j gilbert n holsworthy n shaw r shaw c harvest j jones lafaele la haige brain mr knight meeting everyone agreed resident committee established secret vote occurred respect election member committee result vote following people elected chairperson j gilbert b secretary j knight c member e walsh member lafaele e member l haige14mr knight said meeting 17 february 2005 posted secretary letter respondent committee advised establishment sought meet respondent copy letter attached jk5 mr knight statement letter follows provision ofsection 127of theretirement village act 1999a meeting resident wished participate election palm spring retirement village resident committee held 17 02 2005 1 00p meeting elected palm spring retirement village resident committee committee provision ofsection 127 1 theretirement village act 1999was elected secret ballot meeting palm spring retirement village resident committee consists 1 chairperson 1 secretary three ordinary member committee look forward meeting scheme operator mutually acceptable time place discus various issue concern resident palm spring retirement village 15in response letter mr knight received following letter respondent annexed statement jk6 alleged resident committeei refer letter 17thfebruary 2005 note say first sentence meeting resident whowishedto participate election resident wish participate election already stated theydid want resident committee please advise 1 number resident attended meeting 2 called meeting 3 chaired meeting 4 rule relating quorum resident entitled vote 5 constitution presented adoption 6 48 hour notice meeting given 7 continue meeting prior annual general meeting resident called 15thmarch 2004 issue whether resident want resident committee agenda discussed voted 8 make provision resident vote proxy postal vote understanding meeting 3 4 lot represented received signature 2 3 resident resident committee meeting poorly attended obviously support resident represent resident signed prior meeting section 127 retirement village act 1999 say may establish notmust clearly queensland parliament leaving individual resident village decide wanted establish committee resident palm spring overwhelming majority saidno resident saidnoi cannot see say form committee section 127 wish majority complied satisfied requirement theretirement village act 1999 however subject satisfactory answer question posed along 3 4 resident elected may issue wish discus writer objection meeting discus issue written understanding given advance signatory letter reply dealing issue presented group 3 4 may common concern resident committee meeting resident 15thmarch resident including given opportunity speak formation committee majority resident wish committee formed formed pursuant theretirement village act 1999 also wish place record group support majority resident stood withdrew standing social committee owner hence cannot elected body corporate committee called resident committee attempt law overwhelming majority resident give vestige control group collectively individually breach scheme operator rule law misrepresent status resident resident owner take appropriate legal action protect wish majority 16mr knight said view committee validly established prepared agree term meeting scheme operator seeking impose 17on 25 february 2005 mr knight received letter respondent warning relation breach residence contract letter annexed statement jk7 follows law scheme operator rulesi advised 1 allowed notice place door contravention scheme operator rule obtained prior approval required 2 continued move wheelie bin contravention scheme operator rule past behaviour observed diarised noted resident continued contravention scheme operator rule clear breach obligation residence contract leaf u option hereby issue thewarningthat breach scheme operator rule result proceeding instituted restraining order cost damage without notice observed two day left copy scheme operator rule floor door placed management rule third day found corridor outside door placed door doubt futile childish attempt claim sort ignorance obligation well aware copy rule posted notice board 18in statement filed 14 november 2005 exhibit 1 mr gilbert said lived village unit 18 since 1994 said wanted opportunity participate affair retirement village felt much power control scheme operator believed seemed think resident gullible old people said right said law said older people seldom asked question meeting said reason resident would sooner approach member resident committee said january 2004 previously called meeting resident village hope forming resident committee mr gilbert said endorsed aspect statement mr knight said 15 february 2005 distributed letter resident placing mail box resident letter stated case election resident committee letter annexed statement jg2 state follows resident palm springsre formation resident committeei would like nominate committee seriously considered chairperson said committee perhaps like working year reached executive level trained staff given address various organisation attended board meeting etc committee cannot chairperson saying yes subject raised committee member say vote even chairperson final vote matter discussed matter raised must directed chairperson one resident time minute must taken passed appropriate source since 10 year like odd resident tried speak meeting benefit resident home pay due right voting must carried resident actually putting pen paper vote considered invalid two people elected make committee deemed default resident concern scheme operator whose sole interest commercial venture financial gain sat back watched listened elected committee position chairperson shall fair meeting must carried firmly conducted cordial manner man taken step moon together let u take big stride forward palm spring 19in statement filed 19 december 2005 exhibit 3 mr lafaele said lived village since 2003 long standing active committee member village social club said june gilbert one occasion previous february 2004 attempted form resident committee stated believed much power control exerted scheme operator seems believe resident gullible old people say law also endorsed statement mr knight proceeding evidence behalf respondent20in statement filed 23 march 2006 exhibit 4 mr issakidis said wife director respondent became scheme operator village 10 january 2005 wife sole shareholder respondent transferred share respondent 31 october 2005 andrew fleming wife resigned director respondent mr issakidis said time formation alleged resident committee 17 february 2005 company jodaway pty ltd director owned 42 unit palm spring said director scheme operator relevant time director owner number unit village quite prepared support establishment resident committee long established accordance act 21mr issakidis said denied validity resident committee established 17 february 2005 resident may interested participating formation resident committee given reasonable opportunity result called resident committee established fully representative resident village may wish committee mr issakidis said majority resident village want resident committee mr issakidis said proper notice period given meeting 17 february 2005 unusual resident away two three day time example staying family member travelling holidaying 22mr issakidis said considered necessary write letter 16 february 2005 applicant minor group whilst majority clearly want establish resident committee therefore view provision act strictly adhered director scheme operator wish seen supporting meeting called unpopular group acting wish feeling majority 23in statement filed 23 march 2006 exhibit 5 mr gowan said resident village 11 year applicant experience unsettling influence village annexure statement list 39 signature resident said signed document presence saying opposed formation resident committee 24mrs gowan said unusual resident away village week unusual resident away longer period travelling holidaying could recall specifically however away village 17 february 2005 25in statement filed 23 march 2006 exhibit 6 mr andrew fleming said presently sole director respondent employed respondent general manager village said 16 february 2005 given notice informed distributed village reading notice rang person bill runciman whose name appeared notice said aware obligation facilitate meeting resident neither live manager asked consulted date time place proposed meeting 26mr fleming said present village 17 february 2005 mr runciman arrived meeting explained time venue appeared notice clashed bingo session resident village organised alternate area village available informed mr runciman area quite private 27mr fleming said time mr runciman arrived resident village dining room playing bingo submissions28mr fleming behalf applicant submitted act impose requirement respect whether majority resident must vote favour resident committee established b period notice must given vote c manner notice must given 29mr fleming contrasted section 127 1 section 128 131 1 131 2 respect voting notice requirement resident meeting resident committee meeting 30mr fleming pointed inter alia section 133 specifically deal voting requirement resident meeting specific requirement section majority resident must vote order election valid section 127 require resident committee established special resolution contrast section 130 stipulates law may changed resident consent scheme operator special resolution 31mr fleming submitted good reason legislator included section 127 1 requirement contained section act referred firstly majority resident may always interested physically able involved setting resident committee also scheme operator may oppose setting committee particular resident legitimate concern scheme operator could exert pressure especially owns act landlord large proportion unit submitted necessary implication must drawn difference terminology utilised section 127 relaxed approach meeting procedure establishing resident committee contemplated 32mr fleming said respondent actively sought obstruct vote 17 february circulating disparaging letter resident postponing discussion vote annual general meeting removing notice vote public notice board failing provide ballot box obliged section 133 6 33mr fleming said object 3 g act refers resident want involved act intended protect want participate village affair object 3 g provides support argument act contemplates minority resident village entitled form resident committee 34mr prentice submission behalf respondent said relied law meeting common sense arguing inadequate notice meeting 17 february 2005 minority resident entitled establish resident committee act 35mr prentice conceded little act section 127 particular give guidance notice period required meeting establish resident committee said tribunal guided 14 21 day notice period provision act section 127 mr prentice said parliament would contemplated two day notice given adequate said cannot said meeting question extraordinary would justify two day notice period rather meeting establish resident committee normal expected part life village reason two day notice unreasonable fact resident likely away unit two day period notice le likely away 14 21 day period 36mr prentice submitted parliament intended minority resident could establish resident committee express word effect would used section 127 1 said another flaw meeting procedure venue meeting moved last minute effectively disenfranchising resident arriving notified venue 1 00pm 37mr prentice emphasised mr issakidis objection formation resident committee would fact happily resident committee genuinely believed resident committee established valid matter law minority cannot require resident committee established wish majority addition concern clearly inadequate notice meeting mr issakidis considers view majority prevail findings38there dispute applicant made valid application section 167 act reference retirement village dispute tribunal 39section 191 give tribunal power make order resolve retirement village issue retirement village issue defined section 22 including retirement village dispute defined section 21 tribunal find existence retirement village dispute defined dispute respondent applicant applicant right act establish resident committee tribunal jurisdiction therefore make order tribunal considers resolve retirement village dispute 40the dispute firstly period notice must given resident calling resident meeting purpose establishing first time resident committee secondly dispute whether 12 66 resident village resident attend meeting entitled conduct election amongst establish resident committee 41the heading part 7 act state part 7 deal resident participation section 127 contained part 7 provides resident may establish election conducted among resident committee section 127 1 silent issue determined 42division 3 part 7 bear heading resident meeting contains two section section 131 annual meeting section 132 meeting section 131 2 provides scheme operator must give resident least 21 day written notice annual meeting must called soon reasonably practicable financial statement village become available section 132 1 provides scheme operator resident committee may call meeting resident annual meeting giving 14 day written notice section 132 2 provides urgent circumstance scheme operator resident committee may call meeting resident giving resident written notice meeting reasonable circumstance le two day section 132 6 urgent circumstance defined mean circumstance prudent wait usual 14 day written notice meeting given 43section 132 certainly indicates legislative intention resident generally given 14 day written notice resident meeting section expressly apply however situation group individual resident call resident meeting establish resident committee urgent circumstance absence express provision stipulating period notice calling resident meeting establish resident committee consider case urgent circumstance exist reasonable notice le two day 44the tribunal satisfied notice meeting delivered unit village approximately 9 00pm 13 february 2005 fact received vast majority 66 resident clause 3 8 residence contract requires resident notify respondent absent community overnight longer period evidence adduced respondent establish resident absent village night 13 14 15 16 february 2005 however accept evidence mr issakidis mr gowan likely resident may absent village night 45the meeting notice displayed 14 15 february 2005 village notice board albeit short period removed direction respondent think action combined issue respondent 16 february 2005 intimidating notice resident stating obligation attend meeting called 17 february 2005 likely caused significant number resident might favour formation resident committee least would opposed formation attending meeting 17 february consider fact 12 people attended meeting 17 february result inadequate period notice consider notice period almost four day 9 00pm 13 february 1 00pm 17 february although ideal adequate period notice circumstance 46we turn minority voting issue two provision part 7 act relating resolution put resident meeting voted upon passed section 128 1 provides resident may adopt constitution majority vote resident resident meeting section 130 1 provides special resolution must passed resident meeting order make change revoke law village agreement scheme operator must unreasonably withheld special resolution defined dictionary act resolution passed upon 21 day written notice least three quarter person entitled vote vote personally proxy meeting postal ballot special resolution also required section 127 2 b remove member resident committee 47the tribunal reached conclusion proper meaning section 127 1 viewed context section part 7 act dealing voting resident meeting resident committee meeting voting requirement section intended apply election establish first time resident committee minority resident present meeting called establish resident committee upon reasonable written notice conduct election among establish resident committee furthermore number resident present meeting minority resident village 12 resident instant case attended meeting 17 february 2005 voted unanimously favour establishing resident committee minority 66 resident village entitled vote among elect resident committee even though 39 resident mr gowan list opposed establishment committee 48the legislature intended view procedure establishing resident committee relaxed respect requirement voting giving notice required subsequent meeting initial establishment committee view consistent object act contained section 3 g facilitate participation resident want involved affair retirement village order facilitate participation resident resident committee establishment committee intended view extremely simple procedure 49in circumstance find resident committee established applicant resident meeting 17 february 2005 validly established section 127 1 act 50the evidence establishes respondent refused meet resident committee committee thus unable carry statutory function prescribed section 129 deal scheme operator behalf resident day day running village complaint proposal raised resident section 127 2 provides member resident committee hold office one year may elected circumstance order member resident committee formed 17 february 2005 hold office 12 month commencing date decision 51we urge applicant ensure act interest resident urge respondent accept give full support resident committee presently constituted clear intention act resident committee established village view better existence well functioning committee 52there matter draw attention mr fleming director general manager scheme operator order resident committee function properly accordance section 129 necessary view notice resident issued resident committee able placed community notice board without need first obtain consent scheme operator mr issakidis presumably relied clause 3 9 residence contract taking heavy handed action requiring removal mr knight notice notice board 14 february 2005 15 february 2005 clause 3 9 requires resident may put notice anywhere community including notice board without scheme operator consent 53section 45 act provides provision residence contract effect extent inconsistent act purport restrict exclude operation act extent clause 3 9 restricts proper functioning resident committee accordance section 129 therefore effect reason view clause 3 9 entitle scheme operator insist resident committee obtain scheme operator consent placing notice relating resident committee business village notice board orders54being satisfied resident committee validly formed 17 february 2005 permitted function tribunal make following order 1 member resident committee formed 17 february 2005 hold office 12 month period commencing date decision 2 either party seek order cost party file registry two copy deliver party one copy written submission support application 4 00pm 22 august 2006 3 party wish make submission cost reply file registry two copy deliver part one copy submission 4 00pm 5 september 2006______________________________mrs g spender mr p toohey mr greenmember member membercommercial consumer tribunal_______________________commercial consumertribunalordersection 50commercial consumer tribunal act 2003application v007 05applicant june gilbert well listed attachment 1of application filed 02 august 2005c butler mcdermott egan solicitorsattn mr barrpo box 117nambour qld 4560respondent jodaway management pty ltdc john connor companyattn mr j connorgpo box 1661brisbane qld 4001upon hearing mr fleming counsel behalf applicant mr prentice counsel behalf respondent satisfied resident committee validly formed 17 february 2005 permitted function commercial consumer tribunal make following order 1 member resident committee formed 17 february 2005 hold office 12 month period commencing date decision 2 either party seek order cost party file registrytwo copiesand deliver partyone copyof written submission support application 4 00pm 22 august 20063 party wish make submission cost reply file registrytwo copiesand deliver partone copyof submission 4 00pm 5 september 2006___________________mrs g spender mr p toohey mr greenmember member membercommercial consumer tribunaldate 8 august 2006 |
Foneska, K W Arjun Erath Harish De [2003] MRTA 5006 (10 July 2003).txt | foneska k w arjun erath harish de 2003 mrta 5006 10 july 2003 last updated 4 september 2003 2003 mrta 5006catchwords review visa refusal subclass 050 bridging e meet primary criterion acceptable arrangement depart intention departvisa applicant k w arjun erath harish de foneskatribunal migration review tribunalpresiding member amanda macdonaldmrt file number n03 04221dimia file number clf2003 033781date decision 10 july 2003at sydneydecision tribunal remit application made visa applicant bridging e class subclass 050 visa department immigration multicultural affair reconsideration direction visa applicant meet following criterion bridging e class subclass 050 visa clause 050 211 schedule 2 clause 050 212 schedule 2 clause 050 221 schedule 2 clause 050 223 schedule 2 andthe tribunal remit application direction security amount 10 000 required security compliance following condition 8101 8401 8505 8506 8510 8511 8512 specified date departure 15 july 2003 statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural indigenous affair delegate 30 june 2003 refuse bridging visa e class k w arjun erath harish de foneska national sri lanka born 22 august 1969 visa applicant bridging e visa application made 27 june 2003 jurisdiction standing2 visa applicant lodged application review tribunal 30 june 2003 application review decision refuse visa section 338 4 act 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 dimia 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 issued 16 may 2002msi 369 bridging e visa subclass 050 legislative framework guideline issued december 2002cases jiang v minister immigration multicultural affair 2001 fca 282chen v minister immigration multicultural affair 2001 fca 285lin v minister immigration multicultural affair 2001 fca 283tennakoon 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 vaan v minister immigration multicultural affairsthe 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 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 11 case issue tribunal whether visa applicant meet one primary criterion clause 050 212 regulation particular whether making subject acceptable arrangement depart australia time application decision tribunal find visa applicant meet one primary criterion clause 050 212 regulation may go decide whether would abide condition imposed visa whether request security evidence12 tribunal regard material contained tribunal case file n03 04332 department case file clf2003 033781 summary information contained file follows 13 visa applicant first entered australia 19 december 1995 holder subclass 676 visitor visa 5 february 1996 granted subclass 435 visa expired 31 july 1996 subclass 435 visa issued 9 august 1996 bridging visa granted interim period 14 11 october 1997 visa applicant granted subclass 442 visa occupational trainee visa valid 31 october 2000 holder visa departed australia returned 7 january 1999 visa condition 8102 work relation area study attached visa application made 15 20 june 2003 department located visa applicant workplace homebush departmental report state visa applicant aware unlawful status lodged visa application since 30 october 2000 want residing aunt uncle department detained visa applicant transferred villawood immigration detention centre vidc 16 post location interview conducted 24 june 2003 vidc visa applicant recorded stating residential address north ryde immediate family australia aunt uncle entered australia using genuine passport valid april 2004 located aunt uncle home since 1998 employed company located permission work visa expired admitted charged drink driving outstanding matter department asset australia overseas remained australia expiration visa fiancée time longer relationship person also remained wanted stay longer new fiancée australia wish marry depart although respond question regarding cost destination departure 17 27 june 2003 visa applicant applied bridging e visa form stated residential address hunter hill remained australia wanted better life 18 30 june 2003 delegate refused bridging e visa application finding review applicant meet primary criterion grant visa specific attention drawn review applicant desire remain australia fiancée work history period unlawfulness delegate also stated review applicant convicted criminal offence 19 30 june 2003 visa applicant lodged application review bridging visa refusal tribunal review form noted aunt uncle would lodge security passport yet provided department 20 7 july 2003 tribunal sent visa applicant letter inviting provide comment interview hearing 25 june 2003 information tribunal considered would reason part reason affirming decision review essentially information visa applicant might meet primary criterion grant bridging visa letter outlined visa applicant adverse migration history detailed 21 tribunal held hearing 9 july 2003 visa applicant gave evidence uncle mr gordon pereira summary visa applicant evidence follows current passport detention centre aunt uncle booked ticket departure 15 july 2003 intends depart australia arranged depart australia apply another visa visa expired 2000 four half year relationship ended kept working wanted stay australia apply visa personal circumstance relationship past 8 month girlfriend intends travel sri lanka 15 july 2003 shortly resigned employment 2 000 bank aunt uncle would prepared put security 10 000 told aunt uncle migration history would welcome home parent home depart australia arranged 22 mr pereira told tribunal wife paid visa applicant ticket yet collect ticket visa applicant would live departs make sure departs australia arranged thought visa applicant permission stay recently told untruthful contact visa applicant parent willing lodge security 8 000 australian resident since 1988 23 visa applicant submitted copy passport itinerary together letter girlfriend m margaret gate finding reasons24 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 25 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 26 tribunal must satisfied time application decision visa applicant satisfies criterion clause 050 212 visa applicant satisfy clause 050 212 must meet one ground subclauses 050 212 2 9 met 27 time application visa applicant sought establish meet clause ground subject making acceptable arrangement depart australia thus meeting subclause 050 212 2 deciding whether visa applicant meet criterion subclause 050 212 2 tribunal must consider whether visa applicant able satisfy tribunal making subject acceptable arrangement depart australia 28 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 29 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 stated similar conclusion 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 30 inlin v minister immigration multicultural affair 2001 fca 283 carr j considered whether tribunal consider visa applicant intention deciding whether 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 31 tribunal find time application decision visa applicant valid passport tribunal find visa applicant aunt uncle booked paid ticket visa applicant depart australia sri lanka 15 july 2001 tribunal satisfied time application decision visa applicant could obtain ticket depart australia travel acceptable destination within reasonable period 32 tribunal find visa applicant remained australia unlawfully 30 october 2000 department located 20 june 2003 visa applicant stated remained australia broken fiancée four half year tribunal find visa applicant knowingly worked without permission 30 october 2000 visa applicant stated genuinely intends depart australia uncle know visa applicant migration history stated wife ensure visa applicant departs australia although tribunal concerned visa applicant migration history tribunal satisfied visa applicant time application continues genuine intention depart australia tribunal satisfied visa applicant wish return sri lanka girlfriend 33 basis finding tribunal satisfied time application visa applicant made subject acceptable arrangement depart tribunal satisfied visa applicant met subclause 050 212 2 time application therefore clause 050 212 tribunal satisfied visa applicant continues subject acceptable arrangement depart continues meet subclause 050 212 2 time decision tribunal find visa applicant meet clause 050 221 34 found visa applicant meet criterion clause 050 212 tribunal must go determine satisfied visa applicant released detention abide condition imposed 35 tribunal must consider whether visa applicant satisfies clause 050 223 tribunal must satisfied visa applicant released detention abide condition imposed 36 consider issue tribunal must decide condition must imposed condition would appropriate impose case clause 050 614 regulation provides one condition 8101 8104 8201 8401 8403 8505 8506 8507 8508 8510 8511 8512 may imposed tribunal considered would appropriate impose condition 8101 8401 8505 8506 8510 8511 8512 date departure 15 july 2003 case condition set 81018101 holder must engage work australia 84018401 holder must report time time b place specified minister purpose 85058505 holder must continue live address specified applicant grant visa85068506 holder must notify immigration least 2 working day advance change holder address 85108510 within time specified minister purpose holder must either show officer passport force b make arrangement satisfactory minister obtain passport 85118511 within time specified minister purpose holder must show officer ticket travel another country australia minister satisfied allow holder enter arrival 85128512 holder must leave australia date specified minister purpose 37 tribunal taken account factor set msi 369 consideration whether visa applicant would abide condition regard visa applicant immigration history past dealing department 38 although tribunal satisfied visa applicant genuinely intends depart australia tribunal satisfied leave stated date departure 15 july 2003 tribunal found visa applicant remained unlawfully australia since 30 october 2000 failed depart australia apply another visa visa expired reason visa applicant gave leaving australia time broken fiancée wanted stay australia despite visa applicant assurance depart specified date 15 july 2003 tribunal considers likely remain happened 2000 personal circumstance change tribunal satisfied visa applicant comply condition 8512 39 basis finding tribunal satisfied visa applicant meet clause 050 223 40 visa applicant also made application review decision relating security deciding whether request security amount security request tribunal considered msi 369 issued 9 december 2002 msi 369 give guidance issue security state part 3 3 33 limit amount security officer may require bridging e visa applicant decision maker take account individual circumstance applicant financial circumstance guarantor decision maker decides ask security must ensure level security bond sufficiently high act strong incentive encourage compliance condition 3 3 34 general would appropriate request security amount le 5 000 unlikely act strong incentive compliance based department experience dealing security 3 3 35 case amount least 10 000 considered meaningful incentive compliance substantially higher security order 45 000 50 000 considered circumstance indicator due history applicant dealing department lesser amount likely act strong incentive compliance 3 3 36 applicant asked lodge high security one following factor history breached immigration law visa cancelled refused identify satisfaction compliance officer refused complete travel documentation depart australia previously absconded may forfeited earlier security actively avoided detained 41 tribunal must determine whether lodgement security would act sufficient incentive visa applicant comply condition set tribunal satisfied mr pereira willing lodge security 8 000 visa applicant 2 000 bank account tribunal considers security 10 000 would provide meaningful incentive visa applicant abide condition set tribunal considers amount money needed allay concern whether visa applicant comply condition particularly condition 8512 given migration history tribunal satisfied mr pereira willing support visa applicant aware could forfeit money visa applicant fails comply condition visa 42 considered circumstance particularly visa applicant migration history tribunal satisfied 10 000 security would provide meaningful incentive visa applicant comply condition conclusion43 tribunal therefore find provided security 10 000 lodged department tribunal would satisfied visa applicant would abide condition bridging e visa 44 authorised officer yet requested security lodged requirement necessary tribunal satisfied requirement clause 050 223 met time decision however ease administration timeliness party concerned tribunal practice circumstance remit application ground clause 050 223 met directing department arrange security requested security paid visa applicant found met clause 050 224 granted visa security paid visa applicant entitled visa 45 background tribunal find visa applicant also meet requirement clause 050 223 decision46 tribunal remit application made visa applicant bridging e class subclass 050 visa department immigration multicultural affair reconsideration direction visa applicant meet following criterion bridging e class subclass 050 visa clause 050 211 schedule 2 clause 050 212 schedule 2 clause 050 221 schedule 2 clause 050 223 schedule 2 and47 tribunal remit application direction security amount 10 000 required security compliance following condition 8101 8401 8505 8506 8510 8511 8512 specified date departure 15 july 2003 |
1112061 [2014] MRTA 104 (14 January 2014).txt | 1112061 2014 mrta 104 14 january 2014 last updated 30 january 20141112061 2014 mrta 104 14 january 2014 decision recordapplicant miss rojeena shresthamrt case number 1112061dibp reference clf2011 188214tribunal member linda kirkdate decision signed 14 january 2014place decision melbournedecision tribunal set aside decision review substitute decision cancel applicant subclass 572 student temporary class tu visa statement decision reasonsapplication reviewthis application review decision dated 8 november 2011 made delegate minister immigration cancel applicant subclass 572 student temporary class tu visa unders 116 1 b themigration act 1958 act delegate cancelled visa basis applicant comply condition 8104 visa issue present case whether ground cancellation made whether visa cancelled following reason tribunal concluded decision cancel applicant visa set aside consideration claim evidencethe issue present case whether applicant holder student visa breached condition 8104 schedule 8 themigration regulation 1994 regulation applicant breached condition unders 116 1 act visamaybe cancelled applicant comply condition 8104 condition 8104 applies case extracted attachment decision requires visa holder must engage work 20 hour week australia 8104 1 relation student visa family member primary visa holder must engage work australia primary visa holder commenced course study must 20 hour week australia except certain circumstance 8104 2 5 concept week work defined regulation week purpose mean period 7 day commencing monday 8104 6 work defined mean activity australia normally attracts remuneration r 1 03 determining whether activity regarded work matter evaluation degree activity domestic social nature regarded work braun v milgea 1991 fca 611 1991 33 fcr 152at 156 test applied objective one kim v witton 1995 fca 1508 1995 59 fcr 258at 268 requires going beyond nature activity question particular context assistance provided commercial social domestic altruistic motivation may context fact case assist determining whether particular activity undertaken voluntarily one normally attracts remuneration dib v mima 1998 fca 415 1998 82 fcr 489 495 496 background visa cancellation decisionthe applicant granted visa 22 june 2011 visa subject condition 8104 8 november 2011 delegate minister issued notice intention consider cancellation noicc notice applicant visa unders 116of act noicc informs applicant come attention minister may ground cancelling visa basis information provided applicant employer indicating period time working excess work limitation imposed condition 8104 visa 8 november 2011 delegate decided ground cancellation exists cancelled applicant visa considering applicant comment interview delegate applicant dispute working excess 20 hour per week permitted condition 8104 reviewthe applicant applied review delegate decision 14 november 2011 provided copy primary decision record letter dated 11 april 2013 tribunal informed applicant considered material unable make favourable decision basis material alone invited attend hearing 6 may 2013 give evidence present argument relation issue arising review letter identified issue arise hearing invited applicant provide evidence think relevant case 23 april 2013 applicant appointed registered migration agent represent relation review first hearingtheapplicant appeared tribunal 15 may 2013 give evidence present argument applicant husband accompanied hearing representative attended hearing applicant confirmed first arrived australia 2 august 2009 dependant student tu 572 visa valid 25 may 2011 dependant student tu 572 visa granted 22 june 2011 valid 8 november 2011 visa included condition 8104 applicant told tribunal worked mount alexander retirement home october 2009 visa cancelled believed could work full time school holiday tribunal noted information delegate obtained mount alexander retirement home showed applicant worked excess 20 hour per week period 18 july 2011 25 september 2011 applicant confirmed correct work hour week tribunal explained must first answer question whether applicant breached condition 8104 asked applicant whether dispute allegation breaching condition invited present evidence argument told tribunal work excess 20 hour want separated husband husband pathway permanent residency occupation demand chef regional victoria breach condition inadvertent cancellation visa affirmed take case minister representative requested tribunal give consideration making recommendation minister tribunal agreed give consideration ministerial guideline making decision second hearingtheapplicant appeared tribunal 13 january 2014 give evidence present argument representative attended hearing tribunal informed applicant consequence amendment regulation breach condition 8104 nowmayresult cancellation visa accordingly tribunal exercise discretion determining whether visa cancelled found breach condition invited applicant outline compassionate circumstance considers taken account tribunal exercising discretion applicant told tribunal wish separated husband working toowoomba wish join applied permanent residency waiting application processed tribunal indicated willing give consideration compassionate circumstance applicant advanced reason visa cancelled finding reasonsthe tribunal must determine whether ground cancellation unders 116 1 identified delegate made onus establishing fact may lead cancellation minister review tribunal although visa holder must invited show ground cancellation exist place onus visa holder rebut possible ground cancellation identified zhao v mimia 2000 fca 1235at 25 32 applicant visa cancelled basis failure comply condition visa 116 1 b relevant condition identified delegate 8104 delegate found applicant complied condition 8104 applicant employer provided pay record showed applicant worked allowable 20 hour week husband course session whether non compliance visa conditioncondition 8104the tribunal find condition 8104 condition applicant visa tribunal find applicant visa subject cl 8104 3 subsequent clause 8104 4 5 apply applicant delegate received information applicant employer showing worked excess 20 hour week held visa subject condition 8104 applicant dispute breached condition basis tribunal satisfied applicant complied condition accordingly tribunal satisfied applicant complied condition 8104 visa ground cancellation exists consideration discretion cancel visahaving found applicant complied condition visa tribunal must consider whether exercise discretion cancel visa matter specified act regulation required considered relation exercise discretion however tribunal regard matter raised visa holder visa cancelled government policy guideline contained department procedure advice manual pam3 tribunal regard evidence presented applicant hearing tribunal accepts applicant travelled australia member family unit husband married 2008 tribunal accepts applicant husband genuine relationship primary purpose applicant stay australia provide support husband studying support working awaiting outcome application permanent residence tribunal accepts cancellation applicant visa would cause significant hardship applicant husband would separated tribunal note hour worked applicant excess permitted hour accepts applicant believed could work school holiday therefore breach condition 8104 inadvertent evidence tribunal indicate applicant past present behaviour towards department unsatisfactory evidence tribunal applicant breached visa condition considering circumstance whole tribunal concludes visa cancelled decisionthe tribunal set aside decision review substitute decision cancel applicant subclass 572 student temporary class tu visa linda kirk 14 january 2014senior memberattachment relevant extract schedule 8 themigration regulation 1994 1 subject subclauses 2 6 holder must engage work 20 hour week holder australia 2 holder member family unit person satisfies primary criterion grant student visa holder must engage work australia person satisfies primary criterion commenced course study 3 holder able engage work accordance subclause 2 holder must engage work 20 hour week holder australia unless subclause 4 5 applies 4 subclause 3 apply visa primary criterion satisfied subclass 573 higher education sector visa ii subclass 574 postgraduate research sector visa b course study course award master doctorate degree registered commonwealth register institution course overseas student 5 subclause 3 apply visa primary criterion satisfied subclass 576 ausaid defence sector visa b course study course award master doctorate degree 6 clause weekmeans period 7 day commencing monday |
Naxatu Pty Limited v Perpetual Trustee Company Limited [2011] FCA 823 (19 July 2011).txt | naxatu pty limited v perpetual trustee company limited 2011 fca 823 19 july 2011 last updated 26 july 2011federal court australianaxatu pty limited v perpetual trustee company limited 2011 fca 823citation naxatu pty ltd v perpetual trustee company ltd 2011 fca 823appeal application leave appeal naxatu pty limited v perpetual trustee company limited matter sterling estate development corporation pty limited receiver manager appointed subject deed company arrangement 2011 fca 669parties naxatu pty limited v perpetual trustee company limitedfile number nsd 1107 2011judge robertson jdate judgment 19 july 2011catchwords practice procedure leave file serve notice appeal time whether special reason solicitor mistake personal cost orderlegislation federal court rule cth 3 r 2 3 52 r 15 2 case cited jess v scott 1986 12 fcr 187appliedparker v queen 2002 fcafc 133appliedperpetual trustee company ltdv smithand others 2010 fcafc 91 2010 186 fcr 566citedperry v comcare 2006 fca 481distinguisheddate hearing 19 july 2011place sydneydivision general divisioncategory catchwordsnumber paragraph 21counsel applicant mr j thomsonsolicitor applicant cara marasco companycounsel respondent mr p dowdysolicitor respondent norton rosein federal court australianew south wale district registrygeneral divisionnsd 1107 2011between naxatu pty limitedapplicantand perpetual trustee company limitedrespondentjudge robertson jdate order 19 july 2011where made sydneythe court order leave granted applicant file serve notice appeal 4 00 pm 20 july 2011 substantially form document entitled notice appeal stamped filed 6 july 2011 respondent cost application leave paid applicant solicitor personally note settlement entry order dealt order 36 federal court rule text entered order located using federal law search court website federal court australianew south wale district registrygeneral divisionnsd 1107 2011between naxatu pty limitedapplicantand perpetual trustee company limitedrespondentjudge robertson jdate 19 july 2011place sydneyreasons judgmentintroductionthis application 52 r 15 2 thefederal court rulesfor leave file serve notice appeal time fact document entitled notice appeal matter stamped filed 6 july 2011 substance application leave file serve notice appeal issue whether special reason within meaning 52 r 15 2 giving leave principle established decision full court injess v scott 1986 12 fcr 187especially 195 196 particular needed justify extension time indicated r 15 2 word special reason shown special reason appeal permitted proceed though filed expiry twenty one day context expression special reason intended distinguish case usual course according time twenty one day may distinguished necessarily rule give discretion wherever court see ground justify departure general rule particular case ground special reason take case ordinary think use expression special reason implies something narrower proposition cannot accepted r 15 2 intended constrict broad measure justice individual case court could award upon principle ofgatti v shoosmith 1939 ch 841 return contemplated old law discretion court waive rule fettered rule walsh j emphasised discretion relax requirement general rule become entangled web rule spun court discretionary decision tendency decision discussed regard particular factor considered previously light circumstance requiring effect given different situation court later occasion temptation court resist decision authority upon fact upon principle fact must regarded unique particular case light view statement respondent draw court attention kiefel j inperry v comcare 2006 fca 481 particularly 8 general context honour found 10 applicant clearly lacked reasonable prospect chronologyin application judgment respect leave file serve notice appeal sought given foster j 10 june 2011 appears affidavit support application solicitor carriage matter mistakenly thought last day lodge appeal 8 july 2011 whereas 21 day fact expired 1 july 2011 suggestion counsel applicant one day 21 day period public holiday shorter period leave necessary reado 3 r 2 3 thefederal court rule relevant chronology 17 june 2011 solicitor applicant wrote solicitor respondent saying client currently process obtaining senior counsel advice relation appealing judgment justice foster 22 june 2011 solicitor applicant wrote solicitor respondent saying instructed advise client lodging appeal making application stay judgment 29 june 2011 solicitor applicant wrote solicitor respondent follows refer letter 27 june 2011 previously indicated client intends appeal decision justice foster lodge application stay counsel process preparing document solicitor error realised 5 july 2011 conversation senior counsel said appeal filed last friday solicitor applicant contacted solicitor respondent asking whether objected lodging appeal 6 july 2011 conversation included solicitor applicant saying aware time short time ago get client instruction consent filed shortly thereafter respondent solicitor notified applicant solicitor respondent consent proposed notice appeal fact filed 6 july 2011 considerationas indicated relevant principle set injess v scott also note injess v scottthe court granted leave subject condition applicant solicitor offered accept respondent cost application borne applicant solicitor personally present case respondent make submission respect merit present application leave submitted matter court whether special reason sufficiently made justify leave granted thus respondent submit ground appeal proper ground respondent suffer prejudice leave granted applicant respondent refer unreported decision inperryv comcare 2006 fca 481at 8 considered respondent also point evidence le complete occurring date judgment foster j conversation solicitor applicant 1 july 2011 illustrative error last date filing referred 8 july rather 1 july discretion exercised regard relevant factor assessing whether factor taken together take case ordinary adopt observation inparker v queen 2002 fcafc 133at 6 applied later full court inperpetual trustee company ltdv smithand others 2010 fcafc 91 2010 186 fcr 566at 13 application extension time granted unless proper legislated time limit ignored applicant must show acceptable explanation delay must fair equitable circumstance extend time action taken applicant way making application review relevant consideration question whether acceptable explanation delay furnished prejudice respondent defending proceeding caused delay material factor militating grant extension however mere absence prejudice enough justify grant extension andthe merit substantial application taken account considering whether extension time granted present case take account particular relatively short period time leave required need leave due mistake part present applicant solicitor prescribed time appealing although different context present respondent put notice applicant intention appeal correspondence exchanged 1 july 2011 lack prejudice respondent andthe merit substantive proposed appeal last respect take account respondent make submission respect merit application leave although respondent consent otherwise crucial matter view relevant sense respondent contend notice appeal unsustainable unarguable similarly defective certify preceding twenty one 21 numbered paragraph true copy reason judgment herein honourable justice robertson associate dated 26 july 2011 |
Causebrook & Anor v Ryde City Council [2007] NSWLEC 742 (26 October 2007).txt | causebrook anor v ryde city council 2007 nswlec 742 26 october 2007 last updated 20 december 2007new south wale land environment courtcitation causebrook anor v ryde city council 2007 nswlec 742parties applicantdarrel margaret causebrookrespondentryde city councilfile number 10732 2007catchwords development application alteration solar privacy impact neighbouring propertieslegislation cited environmental planning assessment act 1979ryde development control plancases cited coram hussey cdates hearing 26 10 2007ex tempore date 26 october 2007legal representativesapplicantms k gerathy solicitorof home wilkinson lowryrespondentmr j stratti solicitorfor ryde city counciljudgment land andenvironment courtof new south waleshussey c26 october 200710732 2007 causebrook anor v ryde city councilthis decision given extemporaneously revised edited prior publication judgment1 appeal lodged council refusal development application alteration addition ground floor rear first floor together pergola dwelling situated 42 trelawney street eastwood 2 main reason refusal concerned inadequate provision storm water disposal considering land relatively steep fall away street council control allow pumped stormwater discharge system particularly geotechnical condition prevail site 3 consequently applicant undertaken negotiation downstream owner regarding acquisition drainage easement stormwater disposal via 1m wide easement incorporate 150mm dia pipe whilst negotiation successful council engineer support method stormwater disposal 4 accordingly party agreed consent order made subject deferred commencement condition requires acquisition drainage easement 5 option assessed mr bewsher consulting engineer say proposal downstream piping 35 buena vista could drilled little risk damage property noted council engineer support proposal basis 6 however objection lodged neighbouring owner mr wehbe 44 trelawney street objection concern possible overshadowing privacy loss due overlooking proposed balcony area new building construction 44 trelawney street 7 objection satisfied way revision privacy screen balcony party agree satisfactory covered condition consent accept agreement reasonable 8 objection concern adverse solar impact along side boundary north facing window 9 mr wehbe explained steep topography site imposed constraint overall height new dwelling due sloping ground level restriction height consequently design dwelling included placement series window along northern side living room access natural light indicated window designated 1 2 3 living room particular concern would receive sunlight nominated daylight hour cause disamenity 10 submission made overshadowing impact adequately assessed previously despite number reference council report 11 however party agreed shadow diagram exhibit representative window 1 2 3 northern wall 44 would shadowed comply provision clause 3 2 2 dcp12 control section 3 2 2 dcp provide performance criterion building sited designed ensure daylight habitable room adjacent dwelling significantly reduced overshadowing neighbouring secluded open space main living area window significantly increased also provides number control b c together statement window north facing living area receive least 3 hour sun 9am 5pm 21 june proportion surface 13 hearing applicant house designer m schultz said considered sensitivity addition existing dwelling potential conservation area context tried minimise impact neighbouring property 44 even though final building design available time building complies overall council control provides additional side boundary along common boundary 3 1 minimum requirement 1 5 14 mr c young council town planner involved assessment proposal evidence regarding shadowing nominated window 1 2 3 significant maintains support consent order particular say due allowance given number point 1 east west orientation land generally restricts solar access along side boundary 2 topography land imposes constraint building however subject proposal complying development satisfies existing building zone criterion height control 3 considers subject living room orientated east main window door focusing rear pool area window 1 2 3 side window even though shadowed nevertheless living room achieves reasonable solar access therefore consider shading significant circumstance 15 assessment considered evidence initially accept m schultz evidence proposed extension carefully designed complement existing dwelling suit steep site topography accordingly first floor roof restricted height ceiling control somewhat limit amenity room 16 however proposal still result complying development provides additional side boundary set back along common boundary 44 presumably reduction roof ceiling height would improve shadowing impact window 1 2 3 consider would significantly compromise amenity proposal 17 planning evidence presented court mr young maintained position proposal reasonable term satisfying provision clause 3 2 2 dcp 18 circumstance case accept mr young opinion due regard given site topography east west orientation lot discretion exercised non compliance provision clause 3 2 2 19 importantly however consider window 1 2 3 side secondary highlight window living room primarily focused east satisfactory solar access circumstance case rely mr young opinion shading highlight window warrant significant modification refusal 20 notwithstanding considered mr wehbe evidence solar access window could improved window permitted raised building progress would still allow note applicant indicated objection modification 21 appears reasonable compromise balance circumstance ultimate give determining weight proposal complying building envelope relatively generous provision side boundary setback overall satisfaction planning control granting consent order 22 also satisfied engineering evidence proposed stormwater control disposal via 1m easement 35 buena vista consistent council dcp reasonably necessary development proceed 23 therefore court make order consent 1 appeal undersection 97of theenvironmental planning assessment actis upheld 2 development application number 583 2005 lodged respondent council 1 july 2005 demolish garage carry alteration addition existing dwelling lot 33 dp 16433b number 42 trelawney street eastwood 2122 approved subject conditionspart 1 12part 2 42in annexure ___________________r husseycommissioner courtljr |
Singh (Migration) [2019] AATA 1320 (15 April 2019).txt | singh migration 2019 aata 1320 15 april 2019 last updated 18 june 2019singh migration 2019 aata 1320 15 april 2019 decision recorddivision migration refugee divisionapplicant mr manpreet singhcase number 1720429home affair reference bcc2017 1787335member peter boothdate 15 april 2019place decision melbournedecision tribunal affirms decision grant applicant student temporary class tu visa statement made 15 april 2019 4 02pmcatchwordsmigration student temporary class tu visa subclass 500 student genuine temporary entrant incentive return home country disparity earning capacity employment history australia personal tie home country time already spent australia value course applicant future decision review affirmedlegislationmigration act 1958 cth 65migration regulation 1994 cth schedule 2 cl 500 212statement decision reasonsapplication reviewthis application review decision made delegate minister immigration border protection 16 august 2017 refuse grant applicant student temporary class tu visa unders 65of themigration act 1958 act applicant applied visa 19 may 2017 time application class tu contained two subclass subclass 500 student subclass 590 student guardian applicant applied visa undertake study australia claim meet criterion subclass 590 student guardian visa delegate case refused grant visa basis applicant satisfy requirement cl 500 212 schedule 2 themigration regulation 1994 regulation theapplicant appeared tribunal 19 march 2019 give evidence present argument applicant assisted relation review registered migration agent following reason tribunal concluded decision review affirmed consideration claim evidencethe criterion subclass 500 student visa set inpart 500of schedule 2 regulation primary criterion cl 500 211 cl 500 218 must satisfied least one applicant member family unit applicant visa need satisfy secondary criterion issue present case whether applicant genuine temporary entrant clause 500 212 requires follows applicant genuine applicant entry stay student applicant intends genuinely stay australia temporarily regard applicant circumstance ii applicant immigration history iii applicant minor intention parent legal guardian spouse applicant iv relevant matter b applicant intends comply condition subject visa granted regard applicant record compliance condition visa previously held applicant ii applicant stated intention comply condition visa may subject c relevant matter applicant intend genuinely stay australia temporarily considering whether applicant satisfies cl 500 212 tribunal must regard direction 69 assessing genuine temporary entrant criterion student visa student guardian visa application made 499 act direction requires tribunal regard number specified factor relation applicant circumstance home country potential circumstance australia value course applicant future applicant immigration history including previous application australian visa visa country previous travel australia country applicant minor intention parent legal guardian spouse applicant andany relevant information provided applicant information otherwise available decision maker including information may either beneficial unfavourable applicant direction indicates factor specified used checklist rather intended guide decision maker considering applicant circumstance whole reaching finding whether applicant satisfies genuine temporary entrant criterion applicant initially granted offshore visa tu subclass 572 vocational education training visa 26 november 2009 purpose study undertake general english course certificate iii hospitality commercial cooking applicant gave evidence hearing regarding study following effect certificate iii hospitality course started 5 march 2010 completed early 2011 general english course started 14 december 2009 completed 22 january 2010 certificate iv hospitality started 22 february 2010 completed 21 june 2011 diploma hospitality started 1 august 2011 completed 21 april 2012 advanced diploma hospitality started 24 july 2017 completed said completed course provider wanted additional 7 000 applicant said married 2013 fellow student obtained spouse visa 30 july 2013 obtained work visa 4 may 2015 basis marriage wife student visa 19 may 2017 applied higher education sector visa 2015 2017 said working part time intended study bachelor business 24 july 2017 30 june 2020 offered stotts business college gave evidence commenced course reason commencing course obtain skill management complete applicant worked aangan restaurant fitzroy 2011 2012 sovereign view restaurant ballarat 2014 month uber driver 2015 2016 currently work taxi driver aangan restaurant shepparton life tarneit divorced wife september 2018 applicant relative india including father mother brother sister asset india although family owns farm could estimate value farm applicant currently earns 620 per week tax labour cook applicant estimated would earn 600aud per month cook india applicant said intends study australian institute interpretership english ability course started 18 march 2019 continue 22 april 2019 also would like study bachelor tourism hospitality academy australasian polytechnic aap course start june 2019 continue 2021 produced certificate enrolment aap course applicant filed written submission dated 21 february 2019 support application review tribunal submission generally consistent evidence hearing submission added intends start business although articulate type nature business although appears hospitality tourism contained general laudatory comment regarding aap course desired pursue career cook obtain supervisor manager role later turn business opportunity start something submission also asserted found hard cope separation divorce sought consideration exceptional compassionate circumstance applicant completed several vocational course hospitality early 2010 mid 2011 19 may 2017 applied student visa subclass 500 higher education sector basis said intended study bachelor business study 30 july 2013 became dependent spouse undertook study time 2011 applicant series job cook currently working taxi driver left australia period 32 day since arrived early 2010 whilst family india chosen live away 9 year tribunal informed applicant concern approximately 9 year australia several visa applicant wish embark higher education course applicant said wanted complete study much work cook india response question tribunal said job market cook india 2009 wage low evidence would restriction applicant returning india adverse consequence tribunal considered evidence taken account applicant economic circumstance applicant home country relative applicant potential circumstance australia given disparity economic circumstance india australia tribunal cannot satisfied applicant significant incentive return india applicant unable demonstrate substantial tie personal asset applicant home country diminishes applicant incentive return india tribunal concerned applicant intention live australia may motivated factor study applicant demonstrated clear substantial improvement arising applicant proposed study outlay significant time monetary commitment course require therefore tribunal satisfied applicant demonstrated value applicant proposed course applicant future tribunal considered applicant personal tie india tribunal accepts applicant may family tie india given time applicant spent australia intended period future stay australia tribunal satisfied significant incentive applicant return india tribunal give weight evidence since applicant arrival australia applicant spent approximately 9 year australia 32 day outside australia indicates applicant appear strong personal tie india based evidence tribunal ass applicant incentive return india minimal balance tribunal satisfied applicant genuine temporary entrant stay full time student whilst applicant clearly wish stay continue study australia noted applicant previously granted visa specifically enable applicant achieve goal appears tribunal applicant commenced studying purpose visa application order secure stay australia rather due genuine interest area study tribunal also given regard whether relevant matter find relevant matter assessment applicant intention stay australia temporarily tribunal considered information provided applicant support applicant application balance tribunal satisfied information applicant provided regarding applicant circumstance applicant home country potential circumstance australia value proposed course applicant future applicant immigration history relevant matter sufficient demonstrate applicant genuine temporary entrant contrary factor indicate applicant appears enrolled present course purpose securing student visa rather view genuine interest study overall academic progress applicant appears using student visa program mean maintaining ongoing residence australia genuine intention stay australia temporarily regard evidence oral testimony applicant tribunal satisfied applicant genuine temporary entrant purpose study basis tribunal satisfied applicant intends genuinely stay australia temporarily accordingly applicant meet cl 500 212 decisionthe tribunal affirms decision grant applicant student temporary class tu visa peter boothmember |
Queensland College of Teachers v Teacher DSM [2018] QCAT 181 (20 June 2018).txt | queensland college teacher v teacher dsm 2018 qcat 181 20 june 2018 last updated 28 june 2018queensland civil andadministrative tribunalcitation queensland college teacher v teacher dsm 2018 qcat 181parties queensland college teacher applicant vteacher dsm respondent application ocr091 18matter type occupational regulation mattersdelivered 20 june 2018hearing date papersheard brisbanedecision member cranwellorders suspension registration teacher dsm continued party proceeding order tribunal publication information may identify teacher dsm name person may identified material filed party proceeding prohibited catchword education training registration teacher suspension teacher charged serious offence whether exceptional case whether suspension continuecriminal code act1899 qld 349 352criminal code act1983 nt 188 192education queensland college teacher act2005 |
Hart v Comcare Australia [2005] HCATrans 1028 (16 December 2005).txt | hart v comcare australia 2005 hcatrans 1028 16 december 2005 hart v comcare australia 2005 hcatrans 1028 16 december 2005 last updated 23 december 2005 2005 hcatrans 1028in high court australiaregistry c8 2005b e w e e n olga hartapplicantandcomcare australiarespondentapplication special leave appealgleeson cjgummow jtranscript proceedingsat canberra friday 16 december 2005 9 37 amcopyright high court australiamr j l glissan qc court please appear learned friend mr anforth applicant instructed elrington boardman allport mr g watson may please court appear mr b h j dube respondent instructed phillips fox gleeson cj yes mr glissan mr glissan court please honour say narrow issue interpretation proper construction section 4 might term src act matter requires special leave important broad application commonwealth generally act number statute adopt definition injury case peculiarly appropriate vehicle determination important issue raised perhaps deal latter point first vehicle point honour issue starkly thrown finding fact aat member member mowbray page 24 25 application book ask honour go essence determined illness disease depending described applicant suffered brought number contributing causation number clearly injury within meaning section 4 however read indeed way section structured injury within meaning section subject exemption clause privative clause proviso however one like describe appears end determined tribunal member made good one cause fell within proviso section 4 notwithstanding causal element clearly compensable applicant entitled succeed gleeson cj say paragraph 11 judgment justice whitlam page 44 application book mr glissan yes thank honour resolved favour full court federal court appeal called spurious distinction honour referred picking expression occurred earlier case full court federal court case take honour quickly determined paragraph 26 bottom page 59 book gleeson cj yes mr glissan necessarily inappropriate disposes justice whitlam spurious distinction go deal term really answer trust honour chief justice question gummow j one bear mind earlier said full court paragraph 21 page 59 paragraph 21 22 mr glissan yes one gummow j reasoning mr glissan indeed really thrust argument honour proviso expressed term causation term commonly used causation something result term used proviso section 4 quite clear one reason say important mind given close attention differ differ substantially honour referred justice drummond inmooi justice heerey case oftrewinand justice priestley collateral similar provision northern territory legislation inrivard judge took view multiple causation one would bring worker properly within provision section 4 definition injury sufficient honour may say consistent general approach law australia take causation multiple competing causation mean take honour something neither list even current law occasion preparing case look 1966 edition glass mchugh slightly different context talking multiple defendant substitute causal factor expressed law remained law ever since factor causally relevant plaintiff damage often multiple normally act combine produce damage contribution necessarily sine qua non production damage responsibility part cause sufficient attract liability severally responsible whole general proposition applied statute gummow j full court aware case said end paragraph 22 mr glissan indeed justice drummond justice heerey justice priestley say interpretation taken full court interpretation open case mind differ case full court pronounced way deprives large number worker opportunity obtaining compensation circumstance major part injury may flow compensable cause minor materially contributing part may said something injury result deprived opportunity obtain compensation circumstance say first full court reasoning neither purposive construction statute consistent general policy law general policy statute say matter fully ventilated court matter put finally rest interpretation taken full court correct respect say let court say say vehicle appropriate one court determine issue really know 20 minute long time one making special leave application one short one would almost say whole appeal could argued 20 minute narrow point point make beyond urging review law necessary beyond telling honour anecdotally made inquiry somewhere 10 dozen case pending determination aat canberra registry based result proceeding readily seen small matter matter profound effect across community one need resolution submission honour understand point nothing say gleeson cj thank mr glissan need hear mr watson view insufficient prospect success appeal warrant grant special leave matter application dismissed cost 9 46 matter concluded |
LANDVISION and WESTERN AUSTRALIAN PLANNING COMMISSION [2010] WASAT 3 (13 January 2010).txt | landvision western australian planning commission 2010 wasat 3 13 january 2010 last updated 15 january 2010jurisdiction state administrative tribunalstream development resourcesact planning development act 2005 wa citation landvision western australian planning commission 2010 wasat 3member mr l graham senior sessional member heard 18 november 2009delivered 13 january 2010file dr 336 2009between landvisionapplicantandwestern australian planning commissionrespondentcatchwords town planning application subdivision orderly proper planning residential amenity undesirable precedent minimum average lot size requirement alternative approach implementing local housing strategy corner lot density bonuslegislation city gosnells town planning scheme 6 cl 1 6 cl 1 6 cl 2 1 cl 2 2 cl 2 3 cl 4 2 cl 5 2metropolitan region schemeplanning development act 2005 wa 26 138 3 241 1 251 1 residential design code western australia 2008 table 1western australian planning commission development control policy dc 2 2 cl 3 2 3 cl 3 4 1result application review dismissedcategory brepresentation counsel applicant mr moran representative respondent mr jr bouwhuis representative solicitor applicant landvisionrespondent western australian planning commissioncase referred decision landpark holding pty ltd western australian planning commission 2007 wasat 130nicholls western australian planning commission 2005 wasat 40 2005 149 lgera 117reasons decision tribunalsummary tribunal decision1 application review lodged decision western australian planning commission refuse two lot subdivision 2 lot 41 nethercott street huntingdale 2 undertaking review tribunal examined respective position party background proposal relevant legislation policy provision matter relating orderly proper planning residential amenity undesirable precedent residential bonus corner lot 3 tribunal determined favourable decision applicant matter inoffensive innocuous two lot subdivision may appear would help erode orderly proper planning process create undesirable precedent similar lot elsewhere city gosnells could prove disadvantageous city gosnells current long overdue planning programme advance local housing strategy within statutory framework 4 application review dismissed introduction5 application review dated 4 september 2009 lodged landvision behalf damien moran economic consultant applicant decision western australian planning commission respondent wapc commission 7 august 2009 refuse application subdivision 2 lot 41 nethercott street huntingdale subject land city gosnells 6 application review lodged provision ofs 251 1 theplanning development act 2005 wa pd act 7 although three reason refusal included letter relayed respondent applicant 10 august 2009 tribunal advised hearing matter 18 november 2009 reason 1 would pursued respondent reason 1 state commission prepared approve subdivision resultant lot size would minimum indicated local government town planning scheme approval subdivision would set undesirable precedent creation lot minimum requirement advice applicantthe commission note although city gosnells local housing strategy identify subject land potentially suitable r35 north huntingdale housing precinct plan state density suggested increase zoning density exempt usual proper planning process case scheme amendment rezone land proper assessment impact increase residential density section 7 3of local housing strategy state corner lot connected sewer minimum lot size 600 square metre eligible density bonus application said density bonus occur immediately rather town planning scheme process also state provision density bonus need incorporated town planning scheme 6 facilitated via amendment modify scheme text accordingly approval subdivision ground either point presented part subdivision application would create precedent subdivision lot within area identified r35 north huntingdale housing precinct plan corner lot within area identified city local housing strategy subject land immediate locality8 subject land located corner nethercott street mildenhall street huntingdale found certificate title volume 1342 folio 732 plan number 10410 9 subject land area 712 square metre 730 square metre inclusive corner truncation northern rear boundary 19 51 metre eastern side boundary 36 43 metre southern front boundary 14 74 metre 8 53 metre truncation western side boundary 29 87 metre 10 existing dwelling facing nethercott street small metal shed north east corner site intended existing residence would remain attached rear pergola would removed subdivision proceed 11 abutting subject land opposite side mildenhall street huntingdale shopping centre principally serf local community 12 within street block contains subject land 28 lot 683 square metre another corner lot 689 square metre inclusive 18 square metre truncation street block together nearby adjacent land north comprises north huntingdale housing precinct 8 11 nhhp legislation policy framework13 subject land zoned urban themetropolitan region schemeand residential thecity gosnells town planning scheme 6 tps 6 scheme coding r17 5 14 relevance following additional planning document development control policy 2 2 residential subdivision dc 2 2 city gosnells local housing strategy lh residential design code western australia 2008 code andcity gosnells planning implementation framework local housing strategy large lot outline development plan odp area policy 6 4 2 1 pifp respondent position15 position respondent outlined statement issue fact contention sifc dated 14 october 2009 statement contends code prepared state planning policy tribunal required 241 1 pd act regard determining matter code also adopted part tps 6 proposed subdivision inconsistent minimum average lot size requirement r17 5 coding r17 5 coding guide density lot huntingdale determined rigorous process weighing competing goal need city respondent community gained ministerial approval ad hoc departure density guide criterion departure dc 2 2 satisfied would detract orderly planning locality absence cogent reason depart policy cogent reason case appropriate mechanism facilitate rezoning amend tps 6 mere fact lh suggests density code r35 nhhp mean rezoning bypassed approving subdivision sought applicant rezoning would undermine cl 1 6 tps 6 proposed subdivision satisfy criterion expressed cl 3 2 3 dc 2 2 beneficial outcome community subdivision approved although lh adopted city endorsed respondent properly anticipates approval higher density subdivision would preceded amendment tps 6 acknowledged policy departed cogent reason one objective lh encourage development enhance amenity residential area ensure new housing relates character style existing residential development creating lot substantially minimum average lot size requirement r17 5 coding inconsistent objective especially considering subject land opposite huntingdale shopping centre relatively prominent location creation undersize lot generate residential development keeping existing character locality based substantially larger lot size approval subdivision would inconsistent intent lh expressed cl 6 6 2 contemplates density change way amendment tps 6 approval subdivision would inconsistent pifp refers need amendment tps 6 order recommended density increase come effect provides amendment gazetted proposal subdivision supported compliant current residential density code approval subdivision would create undesirable precedent ad hoc subdivision land within city likely undermine scheme orderly proper administration planning locality approval subdivision would departure objective established policy practice applicant position16 position applicant outlined response respondent sifc response prepared landvision october 2009 contends summary respondent determination relies current r17 5 coding scheme proposed r35 coding lh argues achieved way amendment tps 6 refusal based 1 serf delay desirable outcome consistent intent scheme government redevelopment policy lh subject public consultation submission endorsed wapc accordingly public aware content implication implementation proposal detract orderly planning locality lh envisages development type approval subdivision enable corner lot subdivided without impact adjoining lot approval subdivision would conflict intent tps 6 expressed scheme report also would consistent lh government policy respect redevelopment inner area selected locality include subject land scheme report form part scheme allows medium density development selected location without need amendment need scheme amendment precede approval lh make provision development proposed density already advertised accepted council endorsed wapc drainage infrastructure issue relating proposal event council authority scheme impose condition regard necessary amendment lot isolation would contrary spirit scheme greater control needed amendment would also conflict one objective tps 6 reduce rezoning amendment amendment whole precinct would serve little purpose proposal adverse ongoing consequence neighbouring property amenity andhad need amendment high priority would already initiated city amendment tps 6 ensure orderly development orderly administration redevelopment city approval subdivision create precedent would desirable precedent implementation lh may slow process short medium term may confined corner lot event proposal consistent criterion development corner lot proposal improve residential amenity streetscape currently comprises side fence surveillance adjoining public area proposal consistent government infill development policy promote higher density development selected identified area planning issues17 principal planning issue proposed subdivision approved regard relevant provision statutory policy document would proposed subdivision approved set undesirable precedent assessment proposalbackground18 1 may 2009 application approval freehold subdivision lodged respondent subsequently referred western power water corporation fire emergency service authority western australia fesa city gosnells 19 subsequent advice agency showed water corporation western power objection subdivision subject imposition appropriate condition fesa raised objection subdivision 20 response city gosnells dated 14 july 2009 advised proposed subdivision comply minimum average effective lot size prescribed r17 5 density coded land residential design code 2008 wapc policy dc 2 2 proposed lot comply maximum 5 minimum site area variation 5 provided clause 3 2 3 dc 2 2 approval subdivision would contrary orderly proper planning area effective implementation city gosnells town planning scheme 6 advice note commission proponent advised subject land within city local housing strategy north huntingdale sub precinct b r35 density proposed necessary planning requirement case scheme amendment recode precinct higher density yet occurred 21 7 august 2009 commission refused application subdivision term 7 22 application review signed lodged tribunal 4 september 2009 legislation policy provisionscity gosnells town planning scheme 6 2002 23 following clause scheme relevant matter 1 6 aim scheme provide range housing neighbourhood community identity high level amenity ensure orderly proper use development land within district assist effective implementation regional plan policy 2 1 scheme determination conform local planning strategyexcept extent scheme report inconsistent scheme determination local government scheme consistent scheme report scheme report shall replace local planning strategy local planning strategy prepared endorsed thetown planning regulation 1967 local planning strategy endorsed scheme report shall read local planning strategy 2 2 local planning policiesthe local government may prepare local planning policy respect matter related planning development scheme area 2 3 relationship local planning policy scheme2 3 1 provision local planning policy inconsistent scheme scheme prevails 2 3 2 local planning policy part scheme bind local government respect application planning approval local government due regard provision policy objective policy designed achieve making determination 4 2 objective zonesresidential zoneto provide residential development range density variety housing meet need different household application residential design code 2002 5 2 residential design code 5 2 2 unless otherwise provided scheme development land residential purpose dealt residential design code conform provision code city gosnells scheme report 2001 24 heading local planning strategy scheme report advises overall strategy residential density reflect wa planning commission regional residential density guideline proposed increased residential density generally within 800 metre railway station activity node area outside station precinct proposed also allow medium density development order provide range housing type address need changing household age structure within population allow efficient use urban land e maximising use existing infrastructure council adopted position 10 remaining area developed r30 40 standard arbitrary figure currently reassessed part detailed review council local housing strategy review examine opportunity increased density around activity node retail area public open space transport centre taking account inter alia age type housing stock lot size availability established community facility including private infrastructure present time emphasis satisfaction defined locational criterion applied specific geographical location opposed imposition arbitrary 10 housing stock may well lead need undertake amendment scheme 6 particularly relation mix residential density locational criterion council us determining proposal seeking higher r30 40 density outside strategic residential locality sewer facility drainage proximity public transport andretail cultural medical open space facility service apart allowing r30 40 density outside strategic residential locality area otherwise earmarked provide traditional family housing preserve existing density residential amenity effect complies wa planning commission regional residential density guideline r30 40 density also promoted area around shopping precinct school recreation facility difference specific site coded scheme map done give council greater control particularly drainage servicing problem allow redevelopment right detriment amenity character established residential area also limit ad hoc unco ordinated redevelopment review local housing strategy provide greater guidance direction identifying geographic location suited higher density city gosnells local housing strategy 2006 25 lh endorsed commission october 2005 formally adopted city february 2006 26 methodology used develop strategy included identification 16 housing precinct eleven advertised local housing strategy plan including nhhp within subject land fall 27 key recommendation residential density included within city district zoning scheme shall generally reflect identified endorsed local housing strategy plan precinct implementation monitoring program program required ensure strategy implemented coordinated planned manner program provide likely timeframes recommendation progression development within area identified higher density use guided development scheme outline development plan policy andoutline process monitor implementation key recommendation effectiveness strategy process reviewing document 28 implementation recommendation precinct addressed cl 6 6 2 city pursue residential density reflecting identified endorsed local housing strategy plan housing precinct implementation ultimately carried via amendment town planning scheme 6 city gosnells planning implementation framework local housing strategy large lot outline development plan odp area policy 6 4 2 129 reason policy provide framework implementing lh recommendation land identified increased residential density 30 lh 11 housing precinct advertised local housing strategy plan precinct containing one area identified increase density purpose defining minimum area amendment higher density cover area higher density divided sub precinct 31 matter higher density need scheme amendment policy address cl 1 2 recommended density increase come effect amendment need made tps 6 32 subdivision land existing zoning addressed cl 1 3 time amendment precinct part precinct gazetted proposal subdivision development supported compliant current residential density code meeting requirement tps 6 relevant policy 33 prospect council supporting application subdivision included area identified higher density addressed cl 1 10 subdivision would prejudice future planning development surrounding areacreate regular shaped blocksnot lesser higher density current density coding enable subdivision development accordance density codingcreate lot dwelling direct road frontagebe density consistent density development existing adjoining lotsaccommodate continuation construction connection case may existing future unfinished road infrastructure open space 34 policy table subject land fall north huntingdale precinct north huntingdale b sub precinct fall priority 1 category highest priority implementation development control policy 2 2 residential subdivision 35 policy set commission requirement subdivision land residential lot generally follows standard set code 36 cl 3 2 3 commission consider variation minimum average lot size specified code provided variation 5 provided variation demonstrated particular beneficial outcome community residential design code western australia 2008 37 code prepared state planning policy commission provision 26 pd act 38 general site requirement outlined table 1 requires minimum lot size 500 square metre average lot size 571 square metre area coded r17 5 matter alternative approach implementing local housing strategy39 hearing 18 november 2009 mr jr bouwhuis qualified town planner senior project planner department planning tabled minute ordinary council meeting city exhibit 2 dated 27 october 2009 mr bouwhuis pointed although proposal amend tps 6 way amendment 111 adopted seriously entertained planning proposal yet advertising 40 nevertheless case meeting council resolved among thing initiate amendment 111 tps 6 adopt draft local planning policy subdivision development land split density coding purpose advertising 41 appears amendment 111 proposes implement recommendation lh lot zoned residential r17 5 would include subject land r40 r60 split coding r20 25 r20 30 r20 35 r20 40 r20 60 proposal subject advertising public information campaign throughout city mid january 2010 matter undesirable precedent42 matter undesirable precedent addressed respondent sifc outlined 15 13 43 hearing response question matter mr moran applicant mr bouwhuis advised consequence approval ground would lot within north huntingdale housing precinct exist corner earmarked r35 code would also want similar subdivision depart regime upholds r17 5 code would numerous lot within housing precinct applying demolition licence subdividing similar density cogent reason say undesirable precedent would limited north huntingdale housing precinct 15 precinct propose density increase magnitude within city gosnells 44 position applicant expressed response respondent sifc 3 1 accept decision wapc tribunal set precedent case experience determined merit 3 2 notwithstanding north huntingdale precinct four corner lot precedent could argued 3 4 corner lot subdivided would interim step replicated similar circumstance precinct submit would desirable precedent would meet intent scheme government infill policy desirable location 45 matter adverse planning precedent addressed innicholls western australian planning commission 2005 wasat 40 2005 149 lgera 117 nicholls 74 following circumstance listed precedent relevant planning consideration 1 proposed development subdivision unobjectionable 2 mere chance possibility may later undistinguishable application 46 although tribunal would agree applicant case determined merit certainly reason thenichollstest cannot applied determination matter orderly proper planning47 position respondent orderly proper planning best achieved adherence provision code tps 6 change r17 5 code contemplated done way scheme amendment 48 hearing following exchange took place mr moran mr bouwhuis coming back matter orderly proper planning amendment occurs north huntingdale precinct facilitate orderly proper planning thing different approving proposal mr bouwhuis would implement gazette amendment would uphold provision town planning scheme ensure use development land accord orderly proper planning would correct density subject land facilitate proposed subdivision would also advertising procedure place facilitate precedent area would able comment proposed amendment prior gazetted would orchestrate orderly proper planning process increase density subject land 49 position applicant lh set direction medium density development within north huntingdale housing precinct direction accord strategic direction higher order government policy document network city direction 2031 50 applicant also argue commission authority approve subdivision contrary r17 5 coding provided 138 3 pd act commission may give approval section 135 136 conflict provision local planning scheme local planning scheme first published consolidation local planning scheme published preceding 5 year approval consistent state planning policy deal substantially matter 51 hearing following exchange took place mr bouwhuis statutory requirement facilitate town planning scheme amendment mr moran saying amendment necessary commission power authority determine subdivision application strategic interest effectively local authority manage development resulting subdivision accordance r code accordance policy accordance regulation 52 inlandpark holding pty ltd western australian planning commission 2007 wasat 130 landpark tribunal determined approval two lot subdivision shire busselton appropriate particular somewhat unusual circumstance case proposed lot considerably le size specified code formerly comprised two allotment approximately size proposed allotment proposed allotment size consistent characterised locality would significant streetscape impact andthere would loss natural vegetation 53 also determined neither criterion listed innichollsat 45 applied result precedent relevant planning consideration case 54 test tribunal matter determine whether particular circumstance case provide cogent reason uphold application review matter residential amenity55 matter residential amenity raised witness statement mr bouwhuis context cl 3 4 1 dc 2 2 wherein single residential lot preferred rectangular block greater depth width maximise private space privacy amenity 56 mr bouwhuis argued view proposed subdivision generally create square shaped lot area private open space associated proposed lot compromised compared private open space single house within r17 5 zoning locality resulting development land inconsistent clause 1 6 tps 6 dc 2 2 opinion residential amenity locality likely compromised reason 57 position applicant oriented towards streetscape likely improvement residential amenity resulting new residence built proposed rear 308 square metre lot facing mildenhall street 58 applicant provided photographic evidence site corner onslow road fortune street shenton park city subiaco amalgamation lot 72 part lot 71 produce two lot lot 152 lot 153 371 square metre new residence built two new lot 59 point applicant making tribunal improvement streetscape redevelopment compared side fence property opposite west side fortune street existing side fence subject land facing mildenhall street 60 although tribunal acknowledges substance argument put party issue development rather consequence subdivision term policy statutory context precedent matter corner lot density bonuses61 cl 7 3 3 lh advises landowner owns corner lot developed single dwelling tps 6 council may support development second dwelling mean improving passive surveillance 62 however order qualify density bonus corner lot would need minimum area 600 square metre connected sewer achieve improved passive surveillance satisfy relevant design guideline 63 policy also advises coding lot change rezoning supported r30 code used assessing development standard proposal 64 clause silent question subdivision little assistance tribunal assessing matter conclusions65 application review lodged decision respondent refuse two lot subdivision subject land ground resultant lot size would minimum specified tps 6 approval would create undesirable precedent 66 undertaking review tribunal examined respective position party background proposal relevant legislation policy provision matter relating orderly proper planning residential amenity undesirable precedent residential bonus corner lot 67 position respondent prime planning document code tps 6 proposed subdivision inconsistent minimum average lot size requirement r17 5 coding grant approval without amendment scheme would contrary orderly proper planning also argued approve ad hoc subdivision would create undesirable precedent within city 68 position applicant approval would consistent higher order government settlement policy redevelop inner area selected locality would conflict intent tps 6 expressed scheme report lh also argued scheme outdated proposed subdivision density coding r30 would accord extensively advertised lh orderly proper planning 69 applicant claim need scheme amendment precede subdivision approval subdivision would create undesirable precedent would consistent criterion development corner lot also subsequent development proposed rear lot would help improve residential amenity existing streetscape 70 examining matter tribunal satisfied overall intent scheme lh pifp orderly proper planning process increase density within city achieved way amendment tps 6 process subdivision development appropriate coding would follow 71 however clear council minute 27 october 2009 implementation timeline amend scheme expressed 50 lh met expressed minute way city reviewed current approach implementation lh light difficulty delay experienced regard current approach considered cumbersome administratively difficult ineffective 72 relevant point made report council include approximately 3 500 property throughout city identified lh increase residential density based proximity commercial centre public transport node community facility b development property appropriate coding lh would yield approximately 11 000 additional dwelling c implementation programme line b would accord regional planning strategy expressed network city direction 2031 tps 6 need amended density increase identified lh come effect e responding landowner complaint lack progress implementation programme lh preventing progress programme f timeline 12 18 month finalise amendment 111 anticipated 73 encouraging tribunal ponderous administrative process date implement lh considerably advanced way omnibus amendment 111 specific staff allocation state local level would needed streamline hopefully reduce anticipated 12 18 month timeline 74 matter undesirable precedent although tribunal accepts case need treated merit find compelling reason appears inlandpark depart code limited flexibility provision dc 2 2 would find result far removed minimum average lot size provision r17 5 code objectionable first criterion undesirable precedent innicholls 75 far second criterion innichollsis concerned tribunal considers approval given point time mere chance possibility later undistinguishable application could come forward merely within nhhp elsewhere within city matter precedent therefore relevant planning consideration case 76 tribunal belief favourable decision applicant matter inoffensive innocuous two lot subdivision may appear would help erode orderly proper planning process create precedent elsewhere city could prove undesirable current long overdue planning context advancing lh within statutory framework order77 tribunal make following order application review dismissed certify preceding 77 paragraph comprise reason decision state administrative tribunal ___________________________________mr l graham senior sessional member |
Hammond and Repatriation Commission (Veterans’ entitlements) [2015] AATA 723 (17 September 2015).txt | hammond repatriation commission veteran entitlement 2015 aata 723 17 september 2015 last updated 18 september 2015hammond repatriation commission veteran entitlement 2015 aata 723 17 september 2015 ul none list style none divisionveterans appeal divisionfile number2014 4651reivy margaret hammondapplicantandrepatriation commissionrespondentdecisiontribunaldr gordon hughes memberdate17 september 2015placemelbournethe tribunal affirms decision review sgd dr gordon hughes memberveterans affair claim pension respect war caused death alternative possible cause death conflicting opinion medical expert burden proof standard proof decision affirmedlegislationveterans entitlement act 1986s 8 120 1 120 6 casesbenjamin v repatriation commission 2001 fca 1879collins v repatriation commission 2009 fcafc 90doolette v repatriation commission 1990 21 ald 489repatriation commission v cooke 1998 90 fcr 307repatriation commission v law 1980 fca 92 1980 31 alr 140roncevich v repatriation commission 2005 hca 40 2005 222 clr 115reasons decisiondr gordon hughes member17 september 2015the applicant sought review decision veteran review board 17 july 2014 affirming respondent decision 31 july 2013 refuse claim acceptance death husband due war service specifically tribunal required determine whether maurice hammond death waswar caused veteran suffering number condition time death question facing tribunal whether one condition malignant melanoma repatriation commission respondent acknowledged war caused contributing factor legislationsection 8of theveterans entitlement act 1986 act provides relevantly 1 death veteran shall taken war caused b death veteran arose attributable eligible war service rendered veteran section 120 1 act provides claim underpart iifor pension respect incapacity injury disease veteran death veteran relates operational service rendered veteran commission shall determine injury war caused injury disease war caused disease death veteran war caused case may unless satisfied beyond reasonable doubt sufficient ground making determination section 120 6 act provides nothing provision section provision act shall taken impose claimant applicant pension increased pension allowance benefit act b commonwealth department person relation claim application onus proving matter might relevant determination claim application discussionthe applicant husband died 30 may 2013 age 88 year served australian army 8 march 1943 10 december 1946 disputed constituted eligible war service defined theact veteran served new guinea gunner new guinea whole service constituted operational service section 120 1 act requires decision maker determine death war caused unless satisfied beyond reasonable doubt sufficient ground making determination incollins v repatriation commission 2009 fcafc 90 full court federal court referred theantecedent inquiriesnecessary beforesection 120can applied namely whether claimant veteran dependant deceased veteran whether veteran suffered injury disease died andthe cause death kind death veteran first two antecedent inquiry contention present case issue cause veteran death mr hammond died aggressive metastatic transformation non determined cancer biopsy metastatic lesion performed given veteran history colon cancer melanoma cause death contention respondent asserted veteran cause death colon cancer applicant acknowledged indeed sole cause death claim would fail applicant contended however veteran malignant melanoma contributed death skin cancer resulted war service new guinea respondent conceded malignant melanoma contributing factor claim succeed according tocollins medical cause cause death question fact based upon medical diagnosis evidence without identifying cause cause death possible determine death war caused disagreement medical cause cause death inquiry unconnected question whether war caused contention could multiple medical cause death doolette v repatriation commission 1990 21 ald 489 inrepatriation commission v law 1980 fca 92 1980 31 alr 140 full court federal court observed need asole dominantcause death sufficient show cause one several providing acontributing cause inroncevich v repatriation commission 2005 hca 40 2005 222 clr 115the high court observed causal link alone causal connection capable satisfying test attributability without qualification conveyed term sole dominant direct proximate applicant death certified general practitioner dr john hough noted cause death follows colon cancer 6 year ischemic heart 14 monthsmalignant melanoma 3 yearshypertension 10 yearsthe respondent contended semi colon aftercolon cancer 6 yearsreflected convention drafting death certificate according actual cause death condition listed semi colon whereas condition noted present without contributing towards death absence evidence dr hough point tribunal reluctant draw conclusion also significant report dated 17 december 2013 tendered evidence dr hough stated maintain aggressive nature metastatic spread non determined cancer week prior veteran death certainly inconsistent melanoma would draw potential direct causal link service year way sun exposure tropic reference death certificate stating veteran suffering malignant melanoma three year clearly incorrect report plastic surgeon mr gary liew dated 5 december 2013 stated dr hough first referred veteran treatment relation skin cancer head neck area 2002 veteran subsequently underwent wide excision malignant melanoma 2009 excision 2013 accordingly tribunal consider death certificate significant persuasive value current deliberation tribunal also considered report veteran affair departmental medical officer dr barbara fitzgibbon dated 29 july 2013 dr fitzgibbon reported basis information death certificate primary underlying cause late veteran death malignant neoplasm colon addingthat condition listed death certificate comorbidities rather material contributor death dr fitzgibbon acknowledged however would relevant inquire whetherany condition listed death certificate considered material contributor death word dr fitzgibbon rule possibility one condition relevantly malignant melanoma could contributed veteran death report dated two day later 31 july 2013 dr fitzgibbon commented pathology report provided veteran general practitioner concluded thaton basis information veteran melanoma would materially contributed death dr fitzgibbon commenting however superficial lesion alentigo maligna treated 2013 lacked information regarding deeper melanoma excised 2009 accordingly dr fitzgibbon observation conclusion assist tribunal deliberation cause death evidence called respondent oncologist dr sujoy mitra treated veteran 2006 death mr hammond first consulted dr mitra undergoing surgery stage 2 ascending colon cancer 2006 dr mitra continued treat veteran surgery recurrence colon cancer 2010 dr mitra told tribunal satisfied disease veteran suffering final stage life metastatic colon cancer rather metastatic melanoma based veteran grossly elevated carcinoembryonic antigen cea considered elevated cea keeping colon cancer melanoma dr mitra emphasised cea reading would relevant current context relation diagnosis treatment colon cancer melanoma melanoma patient tested cea dr mitra rejected proposition secondary melanoma could aggressive later stage colon cancer emphasised biggest risk period recurrence colon cancer consistent veteran death two three year following initial diagnosis treatment cross examination dr mitra acknowledged treatment focused veteran colon cancer provided except mr hammond history veteran melanoma treatment acknowledged absence biopsy impossible certain cause death evidence called behalf applicant consultant forensic pathologist dr byron collins disagreed basis dr mitra conclusion stating cea production reported malignant melanoma number non malignant disease process opinion absent definitive histological diagnosis widespread metastatic lesion sound pathological basis dr mitra finding dr collins emphasised tribunal veteran died metastatic disease impossible certain primary tumour caused death medical condition aggressive capable causing widespread metastasis dr collins consider cea level diagnostic significance determining origin veteran tumour cross examination maintained cea common diagnostic tool totally reliable one whilst reasonable dr collins opinion dr mitra reached conclusion regarding cause death absence autopsy possible exclude presence malignant melanoma given veteran medical history dr collins expressed surprise fact dr mitra treated veteran absence full history regarding melanoma dr collins concluded impossible certain absence post mortem examination whether veteran secondary related colon cancer melanoma opinion however amix two morelikely situation reality confronting tribunal therefore absence biopsy impossible know medical certainty whether veteran metastasis attributable colon cancer melanoma neither expert called two party considered possible express conclusive opinion cause death conceded possible veteran melanoma contributed death dr mitra adding nevertheless unlikely dr collins considered itmore likely applicant submitted dr mitra evidence discounted incomplete history treating veteran aware mr hammond surgery melanoma 2009 focused solely diagnosis treatment veteran colon cancer respondent contended hand dr mitra opinion supported observation veteran cea level taking account long history treating mr hammond respondent also argued mr hammond oncologist dr mitra best placed interpret patient symptom history cause death question fact decided tribunal inrepatriation commission v cooke 1998 90 fcr 307 federal court determined thatit quite clear issue whether disease exists decided reasonable satisfaction commission logic applies question cause death similarly inbenjamin v repatriation commission 2001 fca 1897 court observed section 120 1 act assumes existence relevant injury disease provides standard proof determination whether injury disease war caused commission tribunal review required determine whether veteran suffering particular injury disease issue must decided reasonable satisfaction decision maker court inbenjaminwas considering whether veteran suffering particular medical condition reasoning applies determining cause veteran death emphasised incookeandbenjaminthat thereverse onus proofinsection 120 1 act apply antecedent question whether medical condition exists instance court concluded issue decidedto reasonable satisfaction decision maker leaf open question whether determinationto reasonable satisfaction decision makernecessarily import civil standard proofbeyond balance probabilitiesor perhaps something le incollins court citedcookein concluding event dispute death medical cause cause death issue decided balance probability court incookedid however refer tothe balance probabilitiesas opposed tothe reasonable satisfactionof decision maker present case point event moot tribunal decision reached difficulty question fact would either way summary issue tribunal whether absence definitive expert opinion cause death decide beyond balance probability different standard proof applies isreasonably satisfied veteran malignant melanoma contributing factor death tribunal opinion simply possible conclude confidence veteran malignant melanoma contributing factor death tribunal impressed evidence provided expert witness whilst witness expressed reservation regarding possible involvement malignant melanoma cause veteran death dr mitra expressing far stronger reservation conceded indeed possibility situation exists therefore treating specialist opinion strongly support respondent albeit query medical history upon opinion may part formed whilst consulting specialist engaged applicant concluded causal link malignant melanoma veteran death apossibility weighing divergent opinion two equally credible expert witness tribunal simply cannot conclude balance probability itsreasonable satisfaction term implies different standard proof veteran malignant melanoma contributed death possible simply insufficient persuasive evidence effect neither witness could discount possibility render scenario likely even likely tribunal left competing medical opinion logical basis preferring one save considers weight instance given observation conclusion treating specialist decisionfor reason tribunal affirms decision review certify preceding forty five 45 paragraph true copy reason decision herein dr gordon hughes member sgd associatedated 17 september 2015date hearing26 august 2015counsel applicantfiona spencersolicitor applicantjeremy hunter williams wintersolicitor respondentken rudge department veteran affair |
Greater Western Area Heath Service v Greening [2009] NSWWCCPD 109 (3 September 2009).txt | greater western area heath service v greening 2009 nswwccpd 109 3 september 2009 last updated 10 september 2009workers compensation commissiondetermination appeal decision commission constituted arbitratorcitation greater western area health service v greening 2009 nswwccpd 109appellant greater western area health servicerespondent jessica greeninginsurer gio general insurance limitedfile number a1 321 09arbitrator mr c messengerdate arbitrator decision 4 may 2009date appeal decision 3 september 2009subject matter decision extending time appeal leave appeal weight evidence presidential member president judge keatinghearing papersrepresentation appellant dla phillips foxrespondent rickards whiteleyorders made appeal leave appeal refused appellant employer pay respondent worker cost appeal background appealon 3 june 2009 greater western area health service health service appellant sought leave bring appeal decision arbitrator worker compensation commission commission decision dated 4 may 2009 appeal filed time respondent appeal m jessica greening m greening m greening commenced proceeding commission 19 january 2009 filing application resolve dispute alleged injury thoracic lumbar spine arising heavy repetitive cleaning duty required perform appellant canowindra soldier memorial hospital m greening alleged injury caused nature condition employment appellant 25 january 2008 alternatively result injury sustained 25 january 2008 m greening sought lump sum compensation pursuant tosection 66of theworkers compensation act1987 |
Review 2 Pty Ltd v Redberry Enterprise Pty Ltd (No. 2) [2008] FCA 1805 (28 November 2008).txt | review 2 pty ltd v redberry enterprise pty ltd 2 2008 fca 1805 28 november 2008 last updated 2 december 2008federal court australiareview 2 pty ltd v redberry enterprise pty ltd 2 2008 fca 1805costs settlement offer offer compromise 23 thefederal court rule cth purportedly made respondent cross claimant applicant cross respondent applicant cross respondent rejected offer 23 r 11 6 operation purported offer compromise rejected presumptive entitlement indemnity cost 23 rule whether rejection offer imprudent unreasonable whether applicant cross respondent advanced groundless contention award indemnity costsfederal court australia act 1976 cth 59 4 legislative instrument act 2003 cth 12 2 b federal court rule cth 5 r 11 23global brand marketing inc v yd pty ltd 2008 fca 605 2008 76 ipr 161citedcoshott v learoyd 1999 fca 276citeddukemaster pty ltd v bluehive pty ltd 2003 fcafc 1referred toseven network ltd v news ltd 2007 fca 1489 2007 244 alr 374referred tojohn hayes associate pty ltd v kimberly clark australia pty ltd 1994 52 fcr 201citedcolgate palmolive company v cussons pty ltd 1993 fca 536 1993 46 fcr 225citedhamod v new south wale 2002 188 alr 659 citeduniversity western australia v gray 21 2008 fca 1056citedreview 2 pty ltd liquidation acn 067 634 360 review australia pty ltd acn 122 295 836 v redberry enterprise pty ltd acn 093 946 260 vid 286 2007kenny j28 november 2008melbournein federal court australiavictoria district registryvid 286 2007between review 2 pty ltd liquidation acn 067 634 360 first applicant first cross respondentreview australia pty ltd acn 122 295 836 second applicant second cross respondentand redberry enterprise pty ltd acn 093 946 260 respondent cross claimantjudge kenny jdate order 28 november 2008where made melbournethe court order 1 applicant pay respondent cost application 2 cross claimant pay cross respondent cost cross claim note settlement entry order dealt order 36 federal court rule text entered order located using esearch court website federal court australiavictoria district registryvid 286 2007between review 2 pty ltd liquidation acn 067 634 360 first applicant first cross respondentreview australia pty ltd acn 122 295 836 second applicant second cross respondentand redberry enterprise pty ltd acn 093 946 260 respondent cross claimantjudge kenny jdate 28 november 2008place melbournereasons judgmentintroduction1 24 october 2008 court dismissed applicant claim redberry enterprise pty ltd infringement design registered thedesigns act 2003 cth refer design review design time court also dismissed redberry cross claim design registration invalidity seereview 2 pty ltd v redberry enterprise pty ltd 2008 fca 1588 2 question cost fall determination background settlement offers3 considering question cost necessary set aspect procedural history settlement offer made party prior trial detail settlement offer included party written submission support cost order seek see 23 r 8 thefederal court rule cth 4 proceeding began 10 april 2007 first applicant filed application statement claim 18 may 2007 redberry filed defence shortly thereafter letter dated 1 june 2007 redberry solicitor rose chai lawyer consultant made offer settle proceeding sum 1 862 said amount profit made redberry selling allegedly infringing garment plus first applicant reasonable legal cost redberry first settlement offer amount offered said profit made redberry 133 imported garment sold price 20 per garment le 6 00 cost per garment letter also offered redberry undertaking redberry would cease import distribute sell garment offer made without prejudice except cost open 3 00 pm 8 june 2007 5 following week redberry filed served unverified list document 13 june 2007 redberry swore list document included reference document showing redberry made 133 garment sale claimed redberry said copy document sent applicant solicitor 25 june 2007 6 letter dated 8 june 2007 first applicant rejected redberry offer letter first applicant offered settle matter basis redberry 1 provide written undertaking would cease forever refrain importing selling distributing garment infringing review design 2 would immediately deliver remaining stock allegedly infringing garment 3 pay first applicant sum 200 000 damage cost 7 4 july 2007 party attended court ordered mediation unsuccessful notice motion dated 11 july 2007 first applicant sought 1 leave join review australia pty ltd second applicant proceeding 2 leave file amended defence amended statement claim 3 summary judgment redberry also 11 july 2007 redberry gave notice solicitor record become clayton utz 8 hearing motion 10 august 2007 court made various order including dismissing motion granting first applicant leave join review australia second applicant 9 17 august 2007 redberry filed amended defence cross claim 21 august 2007 redberry clayton utz made offer compromise relying order 23 rule offer redberry offered compromise claim cross claim basis 1 redberry would pay sum 20 000 applicant cross respondent plus cost taxed agreed 2 payment would made within 28 day acceptance offer 3 offer would open acceptance 14 day beginning day service notice covering letter redberry stated offer made w ithout prejudice save cost letter also stated offer exclusive cost accepted redberry would also pay applicant cost respect claim cross claim agreed taxed party party basis incurred including day offer accepted 10 letter dated 31 august 2007 applicant rejected redberry second offer compromise offered settle matter basis redberry 1 provide written undertaking term sought earlier letter 8 june 2007 2 deliver remaining stock garment 3 pay applicant cross respondent sum 100 000 damage cost 11 21 september 2007 following request security cost redberry second applicant provided undertaking court would pay cost order made first applicant favour redberry party submissions12 applicant submit cost follow event proper order 1 applicant pay respondent cost claim and2 cross claimant pay cross respondent cost cross claim 13 support cost order applicant make numerous submission including following 1 effect redberry letter 21 august 2007 accompanying offer compromise two offer offer settle applicant claim payment 20 000 plus party party cost claim b offer dismiss cross claim pay applicant party party cost cross claim 2 applicant rejection offer compromise made 23 rule applicant wholly fails proceeding ordinarily result award indemnity cost unless rejection imprudent unreasonable 3 even 23 r 11 4 rule mere refusal offer followed judgment le favourable offer automatically lead indemnity cost 4 party advance entitlement award cost higher party party basis carry onus establishing party conduct imprudent unreasonable 5 account following factor imprudent unreasonable applicant rejected redberry 21 august 2007 offer 1 1 question determination claim cross claim respect new design regime accordingly outcome could predicted certainty 1 2 close similarity allegedly infringing garment review design question whether difference sufficient reach conclusion infringement matter judge impression could predicted certainty 1 3 claim bound fail even likely fail 1 4 result turned upon judge impression favour applicant case point considering prior art 1 5 close similarity garment question proceeding dress inreview australia pty ltd v new cover group pty ltd 2008 fca 1589 fact infringement proceeding infringement thenew coverproceeding taking account state discovery limited prior art relied upon time offer redberry prior instance copying unreasonable applicant considered redberry garment infringing 1 6 accepted redberry offer compromise time would required applicant accept effect person china independently conceived design startling similar applicant design time another retailer new cover group pty ltd also selling dress remarkably similar applicant design borne mind court made award 85 000 damage new cover 1 7 prior art relied redberry time offer limited 9 item although supplemented eventual tally 120 item case applicant required meet cross claim indirectly claim extent cross claim fed defence claim known time offer 1 8 reasonable applicant believe redberry wholesaler would imported substantially larger quantity 133 garment therefore sum offered understated amount damage might obtained 1 9 applicant could predicted court would accept mr liu evidence 1 10 issue whether redberry could regarded maker infringing garment commissioned manufacture outside australia pleaded defence raised court judgment reserved 1 11 redberry letter 21 august 2007 indicate sufficient particularity applicant case must fail amount offered refusal would unreasonable 1 12 applicant counter offer letter dated 31 august 2007 cannot sensibly bear question whether rejection redberry offer unreasonable imprudent therefore disregarded 14 redberry primary submission applicant pay whole redberry cost indemnity basis redberry make following submission support cost order 1 applicant summarily rejected two settlement offer made redberry redberry first offer compromise commercially reasonable rejection unreasonable light legal position first applicant commercial interest review group generally 2 clear applicant counter offer conduct proceeding generally bulk damage claim seen additional damage unders 75 3 thedesigns actbased redberry alleged previous history copying garment designed created others therefore although may said applicant position quantify claim full extent infringement verified discovery fair assume confirmation extent alleged infringement reason rejection redberry offer 3 applicant claim rested claim additional damage completely misconceived illustrated rejection evidence past alleged copying irrelevant finding redberry satisfieds 75 2 b thedesigns act 4 applicant position unreasonable beginning pursue claim 200 000 general damage 400 000 additional damage alleged infringement constituted admitted importation sale 20 133 garment unusual face reasonable commercial offer settlement unreasonable 5 proceeding commenced wrong party particular review 2 already transferred review design review australia 28 february 2007 proceeding issued 10 april 2007 thus claim bound fail least review australia joined party 10 august 2007 6 conduct applicant seeking open litigate past claim involving unproved allegation infringement irrelevant subject written term settlement release result substantial amount time spent irrelevant matter 7 fact proceeding one first newdesigns actwas justification rejecting reasonable commercial offer settlement 15 furthermore redberry relied term offer compromise 21 august 2007 23 rule support claim indemnity cost respect claim cross claim relation cost theclaim redberry submitted virtue 23 r 11 6 rule entitled 1 party party cost claim 11am 22 august 2007 and2 cost claim 11am 22 august 2007 onwards indemnity basis 16 subsequently redberry filed additional cost submission leave address fact court noted 23 r 11 6 commence operation 2 august 2008 submission redberry submitted court bound followdukemaster pty ltd v bluehive pty ltd 2003 fcafc 1 order award indemnity cost made test whether imprudent unreasonable reject offer 21 august 2007 17 relation cost cross claim redberry submitted treated applicant purpose 23 rule see 5 r 11 23 r 1 applicant defined include cross claimant respondent defined include cross respondent accordingly reliance 23 r 11 4 rule redberry submitted entitled 1 party party cost cross claim 21 august 2007 and2 cost cross claim 22 august 2007 onwards indemnity basis consideration18 party agreed proceeding court would ordinarily order unsuccessful party party pay cost successful party party claim cross claim respectively see e g global brand marketing inc v yd pty ltd 2008 fca 605 2008 76 ipr 161 thus ordinarily applicant would pay redberry cost application redberry would pay cross respondent cost cross claim case however position complicated redberry offer settlement 19 turn first redberry latest offer compromise 21 august 2007 invoked 23 rule offer complied formal requirement order set 23 r 3 offer also provided time acceptance accordance 23 r 5 3 20 currently 23 r 11 6 rule applies f offer made respondent accepted applicant respondent obtains order judgment claim offer relates favourable respondent favourable respondent term offer applicable provision creates presumptive entitlement respondent indemnity cost 11 day offer made provision however comparatively new one commenced operation 2 august 2008 provision cannot apply redberry offer compromise made preceding year august 2007 seefederal court australia act 1976 cth 59 4 thelegislative instrument act 2003 cth 12 2 b 21 august 2007 provision connection cost following applicant rejection respondent offer compromise 23 r 11 5 deal position f offer made respondent accepted applicant applicant obtains judgment claim offer relates favourable term offer applicable provision also creates presumptive entitlement respondent indemnity cost provision cannot apply redberry offer compromise however applicant rejected respondent offer wholly unsuccessful claim circumstance 23 r 11 5 rule application seecoshott v learoyd 1999 fca 276at 37 per wilcox j dukemaster 2003 fcafc 1at 6 per sundberg emmett jj andseven network ltd v news ltd 2007 fca 1489 2007 244 alr 374at 32 per sackville j 22 redberry cannot rely term 23 r 11 4 relation applicant rejection offer compromise cross claim order 23 r 11 4 applies f offer made cross claimant accepted cross respondent cross claimant obtains judgment claim offer relates le favourable term offer although give rise presumptive entitlement indemnity cost favour offeror circumstance applies cannot apply cross claimant cross claim wholly unsuccessful 23 authority recognise making offer outside 23 respondent rejected applicant turn wholly unsuccessful matter taken account determining nature cost order made case respondent claiming indemnity cost must show rejection offer compromise imprudent unreasonable seedukemaster 2003 fcafc 1at 7 university western australia v gray 21 2008 fca 1056at 36 per french j andseven network 2007 fca 1489 244 alr 374at 39 51 cross claimant make offer rejected cross respondent cross claimant ultimately fails position quite different since little basis saying rejection offer compromise imprudent unreasonable 24 question therefore whether said applicant acted imprudently unreasonably rejecting redberry offer compromise relation applicant claim plainly enough even present circumstance mere refusal offer compromise sufficient satisfy test seejohn hayes associate pty ltd v kimberly clark australia pty ltd 1994 52 fcr 201at 206 per hill j anddukemaster 2003 fcafc 1at 7 although refusal offer factor take account determinative question indemnity cost sackville j said inseven network 2007 fca 1489 244 alr 374at 65 court required consider whether rejection offer compromise unreasonable considering among relevant circumstance strength weakness applicant case looking claimprospectivelyat time offer made emphasis original 25 following factor support conclusion applicant rejection imprudent unreasonable 1 thedesigns actintroduced comparatively new statutory framework august 2007 decision act concerning issue arising case authority therefore provided limited guidance likely outcome 2 applicant claim tenable unreasonable referred clear similarity review design design embodied redberry garment also direction in 19 1 thedesigns actto considered course direction ins 19 2 c 19 3 4 borne mind standard informed user applied application standard depended however evidence adduced trial including evidence m mudie affidavit filed served let alone read time redberry made offer prior art significant case also fully explored trial august 2007 prior art relied redberry apparently limited 9 12 item see particular 7 amended defence cross claim filed 17 august 2007 many item formed part prior art relied trial applicant successful might ordinarily expected damage account profit election successful might reasonably expected recover rather amount redberry offered doubt difficulty applicant faced trial connection claim general damage additional damage would apparent time rejection offer compromise one sense difficulty product relatively new legislative regime applied fashion industry became manifest trial 3 acknowledged earlier reason judgment applicant claim infringement made question would arisen whether redberry could successfully invokes 75 2 b thedesigns act consideration issue led consideration evidence adduced redberry including evidence mr liu may recalled although ultimately accepted evidence essentially truthful correct say applicant unexplained deficiency account evidence available applicant time offer hence open applicant rely deficiency explaining rejection offer accept however even time offer applicant might reasonably perceived aspect redberry case tended accepting redberry account thing would difficult predicted matter might turn trial 4 accept neither applicant redberry raised issue effect commissioning manufacture outside australia 5 neither offer compromise letter accompanying contained statement reason redberry believed application would fail seedukemaster 2003 fcafc 1at 8 sundberg emmett jj said whatever position may offer made order 23 calderbank offer offer compromise outside regime order 23 unlikely serve purpose attracting indemnity award cost rejecting applicant fails recover ordered unless offer reasonable one contains statement reason offeror maintains application fail 26 consider countervailing matter outweigh consideration accordingly viewed 31 august 2007 imprudent unreasonable applicant reject redberry offer compromise far applicant claim concerned 27 may follow discussion rejection redberry earlier settlement offer also provides basis award indemnity cost 1 june 2007 earlier offer made applicant knew comparatively little redberry case applicant redberry defence noted letter rejecting offer 8 june 2007 respondent verified list document copy document showing 133 allegedly infringing garment imported letter containing offer contain statement reason redberry believed application would fail 28 redberry relied fact review australia joined party proceeding 10 august 2007 omission review australia clearly oversight capable ready amendment without prejudice party omission little moment time remedied provides little support redberry claim indemnity cost 29 relying accepted proposition undue prolongation case groundless contention misconduct improperly waste time increase expense may attract award indemnity cost redberry also made much applicant allegation redberry essentially copyist redberry submitted applicant pursuit allegation wasted considerable amount court time substantially increased party cost 30 applicant unsuccessful aspect case seeredberry 2008 fca 1588at 85 87 establish misconduct part establish sought advance groundless contention sense used authority seecolgate palmolive company v cussons pty ltd 1993 fca 536 1993 46 fcr 225at 233 per sheppard j applicant pressed argument good faith argument untenable could said applicant acted unreasonably pressing much applicant conduct regard attributable newness statutory regime especially application fashion industry circumstance would take view applicant conduct regard aspect case unreasonable justify award indemnity cost seehamod v new south wale 2002 188 alr 659 20 per gray j carr goldberg jj agreed 31 benefit hindsight applicant assumption position proved misplaced quantum claim pecuniary relief prove successful seems little high hindsight however unreliable guide application regard circumstance case occasion award indemnity cost unsuccessful party would regard conduct applicant case relevantly unreasonable accordingly would make usual order given outcome proceeding reason stated would order 1 applicant pay respondent cost application 2 cross claimant pay cross respondent cost cross claim certify preceding thirty one 31 numbered paragraph true copy reason judgment herein honourable justice kenny associate dated 28 november 2008counsel applicant mr golvan sc mr wisesolicitor applicant middleton lawyerscounsel respondent m gatfordsolicitor respondent clayton utz lawyersdate final submission leave 27 november 2008date judgment 28 november 2008 |
Andrei Meltser v Toppa Sports Pty Ltd [2023] FWC 3224 (6 December 2023).txt | andrei meltser v toppa sport pty ltd 2023 fwc 3224 6 december 2023 last updated 6 december 2023 2023 fwc 3224fair work commissiondecisionfair work act 2009s 365 general protectionsandrei meltservtoppa sport pty ltd c2023 3763 deputy president clancymelbourne 6 december 2023application deal dismissal dispute unders365of act jurisdictional objection dismissal applicant dismissed 1 26 june 2023 mr andrei meltser made general protection application involving dismissal fair work commission pursuant tos 365of thefair work act 2009 act filing aform f8 general protection application involving dismissal respondent application toppa sport pty ltd toppa sport objected mr meltser application basis dismissal 2 incoles supply chain pty ltd v milford 1 full court federal court outlined task commission case one follows summarise application purportedly lodged unders 365it open respondent assert dismissal giving rise dispute question dispute fall determined unders 368but unders 365itself antecedent dispute going entitlement applicant apply also open respondent admit dismissal occurred dispute dismissal took effect within 21 day date application filed dispute may give rise issue unders 366 1 involving question whether necessary fwc determine whether time allowed application made unders 365 antecedent dispute going question whether application made dispute must resolved power conferred bys 368can exercised 2 3 person must dismissed order entitled make general protection dismissal dispute application must determine whether mr meltser dismissed toppa sport commission exercise power unders 368to deal dispute whether mr meltser dismissed contravention general protection set act 4 party opportunity file serve submission witness statement document relied upon pursuant direction commission mr meltser mr christopher burnett toppa sport appeared determinative conference 29 august 2023 time gave evidence provided opportunity make submission conduct cross examination 25 august 2023 issued two order pursuant tos 590 2 act requiring party produce number specified document amongst document produced mr meltser 2021 22income tax return factual background summary submission 5 mr meltser said recruited mr burnett job advertised linkedin position advertised asports performance analyst videographer mr meltser relied reference advertisement position part time casual 15 hour per week 3 advertisement position also outlined weekend work required day would week tuesday thursday 6 mr burnett said sport performance analyst role position discussed obtained mr meltser mr meltser fact engaged contractor perform different role camera operator videographer 4 mr burnett said discussion mr meltser february 2022 regarding camera operator videographer position outlined email sent mr meltser 24 february 2022 header toppa videography opportunity 2022 24 february 2022email 5 7 determinative conference mr meltser put mr burnett toppa sport sought change position offer thesports performance analystrole camera operator videographer role 24 february 2022 email without telling role changed denied mr burnett maintained 24 february 2022 email relate thesports performance analystrole instead outlined camera operator videographer role involved two style camera work one involved filming live stream broadcast sport analysis 8 text 24 february 2022 email outline mr meltser thanked interest 2022 season provided information regarding opportunity work toppa sport including related provision toppa sport video sport livestream broadcast purpose sport performance video analysis work performed consequent requirement reliable transport majority shift would saturday march september generally ranged 4 7 5 hour 3 hour minimum contractor rate fixed 45 90 per hour dependent whether gear provided toppa contractorthat important holder role understanding sport film 9 24 february 2022 email concluded mr burnett suggesting position still interest mr meltser arrange telephone call discus question next step mr meltser recalled receiving email 6 10 mr burnett sent email 17 march 2022 asking mr meltser whether free telephone call mr meltser agreed telephone conversation followed requirement work saturday shift working trial discussed 7 mr burnett evidence conversation included content 24 february 2022 email 8 follow conversation appears email mr burnett sent mr meltser 5 april 2022 outlined number shift available 23 april 2022 onwards inquired whether mr meltser still interested trial toppa sport 9 11 mr meltser confirmed asked complete work trial sent email mr burnett dated 22 april 2022 stated mr meltser available work trial 23 april 2022 gave rise email correspondence 22 april 2022 various detail discussed 12 04am 23 april 2022 mr meltser confirmed would work two hour engagement 23 april 2022 8 45 10 45am 10 apparent mr burnett sent email 25 april 2022 invite feedback mr meltser regarding work performed 23 april 2022 11 12 mr meltser asserted engaged work toppa sport pursuant verbal contract entered mr burnett went rate pay 12 mr meltser could recall precise date upon agreed contract suggested may two three day completed work trial 23 april 2022 mr meltser said term oral contract engaged part time basis paid 50 per hour recording work various rate livestream work depending supplied gear 70 per hour 75 per hour 90 per hour mr meltser evidence particular hour work agreed required available work saturday mostly sunday 13 mr meltser receive leave entitlement 13 mr meltser said following invited join toppa sport thedeputysystem received email header gmail christopher invited join toppa sport sydney deputy content stating christopher burnett toppa sport sydney invited receive shift using deputy 14 mr meltser asserted weighed favour finding part time employee wording body email described use ofdeputyto share leave availability manager 15 14 mr burnett responded asserting toppa sport utiliseddeputyfor scheduling opposed broader hr functionality suggested mr meltser elevating genericdeputycontent regarding leave work announcement descriptor contractual term 16 mr burnett said toppa sport carry filming hundred location worker required block unblock time regard availability 17 said worker considered toppa sport capable performing particular assignment assigned shift throughdeputyif available shift would opened maximum five people could either contractor employee 18 note outlining detail assignment including date time address would sent worker accepted assigned toppa sport permit worker whether employee contractor unilaterally transfer assignment another person subsequently became unavailable 15 use ofdeputywas described determinative conference following term deputy president question accept job saturday mr meltser effectively yes accepted job told deputy president mr burnett ask obligation accept job saturday listed deputy mr meltser mr burnett always opportunity decline although advised work efficiently way used leave available expectation available work anybody time block day foreseeable future give shift people blocked work work really well people follow free deputy offer shift always decline plan already free inverted comma using app shift deputy president work assumption someone available status available deputy mr burnett yes deputy president accept shift want accept shift block unavailable mr burnett yes decline shift well 19 16 mr meltser asserted obligation work following term mr meltser hour provided chris deputy charge hour hour simply given deputy shift either accept decline deputy president could accept certain shift could decline certain shift mr meltser practicality able able decline shift spoken chris example one thing came later sorry speaking fast explain accepted mid afternoon shift chris told accept morning shift deputy president right know week week hour would required work saturday mr meltser shift given two month advance however changed two three time accept one separately would change located time accepted could cancelled time 20 17 mr meltser stated useddeputyto record shift submitted use deputy demonstrated degree control exercised mr burnett day day work videographer mr meltser produced adeputysystem screen shot displayed date 22 may 2023 included reference employee 21 mr burnett suggested significance attached simply genericdeputydescriptor 18 mr meltser said required supply tax file number supplied australian business number abn completed first four shift thereafter continued invoice toppa sport accrue annual personal leave mr meltser relied toppa sport required proof holding public liability insurance mr burnett stated practice make explicit contractor engaged toppa sport required abn public liability insurance conceded insurance status mr meltser checked seemed mr meltser held working child check toppa sport specifically check whether sort required carrying paid work 19 consider contractor equipment could deliver requirement assignment toppa sport would supply necessary equipment mr meltser almost exclusively worked camera supplied toppa sport uploading data would use device mr meltser also used tripod power bank occasion memory card although requirement mr meltser also elected supply monitor term travel mr meltser required get assignment mean 20 finished filming mr meltser could carry subsequent uploading wherever coverage 4g network mr meltser said attend toppa sport office fact mr meltser attended toppa sport office three occasion purpose collecting returning camera mr meltser required wear uniform camera supplied came case toppa sport logo 21 toppa sport satisfied mr meltser competency providing training supervision made recommendation equipment might suitable particular assignment would also make recommendation request relation particular vantage point filming ought carried particular location 22 firstdeputyrecord material work 10 52pm 5 00pm 30 april 2022 22 first work claim payment made mr meltser invoice toppa sport dated 16 june 2022 said 45 minute data recovery work 1 may 2022 albeit appear recorded indeputy 23 mr meltser confirmed work performed outlined invoice submitted toppa sport 24 although became apparent perhaps charge two shift previously submitted invoice required amendment additional two shift invoice submitted 23 5 may 2022 appears message sent fromemployment hero 25 account heading new independent contractor added toppa sport pty ltd message new independent contractor file created andrei melster 26 saturday 7 may 2022 saturday 14 may 2022 work performed mr meltser invoiced toppa sport 16 may 2022 mr meltser said received email stating toppa sport invited join employment hero may noted stated email dear andrei meltsertoppa sport pty ltd created employment hero account behalf record maintain information regarding contractor arrangement business 27 24 witness statement mr meltser stated sent email 16 may 2022 included request sign anindependent contractor agreement 2022on employment hero mr meltser said received email worked couple shift first occasion upon received anything writing mr burnett 28 mr meltser said sign theindependent contractor agreement 2022because already recruited therefore already classified employee mr meltser mr burnett gave evidence satisfies dialogue party regarding document 29 neither party produced copy theindependent contractor agreement 2022 albeit mr burnett stated term apart fee would virtually identical subsequently issuedindependent contractor agreement 2023 25 mr meltser proceeded invoice toppa sport work performed saturday 21 may 2022 saturday 28 may 2022 1 3 4 11 june 2022 respect work work performed 1 may 2022 14 may 2022 mr meltser prepared invoice dated 16 june 2022 invoice covered 47 74 hour totaled 2 975 00 emailed toppa sport day 30 26 mr meltser stated mr burnett sent toppa sport fee schedule 11 october 2022 single pagefee service scheduledated february 1st2022 january 31st2022 2022 fee schedule 31 outlined service provided gear supplied contractor item 3 corresponding hourly fee various service item 5 shift scheduling item 6 outlined payment would made according time recorded indeputyand employee required login beginning shift ensure full payment scheduled shift notice period 2 week item 7 andthe requirement invoice 7 day 1stday month item 8 27 mr burnett agreed 2022 fee schedule sent meltser 11 october 2022 also added discussed party march 2022 32 mr meltser disputed said 11 october 2022 first time received anything writing fee rate 2022 fee schedule lower party previously discussed 33 28 mr meltser argued 2022 fee schedule represented position contractor employee position stated sent fee service schedule 12 january 2023 period 1 february 2023 31 january 2024 2023 fee schedule 34 2023 fee schedule wording item 6 become operator must login beginning shift ensure full payment scheduled shift additionally 2023 fee schedule stipulated minimum shift 3 25 hour item 5 included new item 8 travel allowance outlined allowance travel would follow reasonable amount guideline australian taxation office ato provided link ato document 35 mr meltser said ato document included reference employee 29 mr burnett addressed changed text 2023 fee schedule outlining wording schedule changed updated start year b minimum shift introduced explicitly contractor c change employee operator item 6 avoid confusion toppa sport decided adopt ato guideline travel allowance employee contractor even though wording referred employee 30 toppa sport produced anindependent contractor agreement 2023which provision service mr meltser toppa sport 1 february 2023 document signed mr burnett mr meltser 36 mr burnett acknowledged argued mr meltser knew contractor said fact evident mr meltser submitted invoice charged fee consistent 2022 fee schedule 2023 fee schedule 31 mr burnett gave evidence addition engaging independent contractor toppa sport engaged employee casual basis paid hourly rate pay ranging 28 per hour 40 per hour camera operator videographers paid 29 35 per hour sport analyst 40 per hour 32 dispute arose 5 june 2022 regarding particular equipment payment time mr meltser say spent uploading footage 1 may 2023 claimed additional shift 37 email sent mr burnett mr meltser 5 june 2023 toppa sport maintained liability make payment time spent uploading footage 38 mr meltser asserts returned camera gear faulting sd card containing footage another fixture posted ondeputya message containing live stream camera retained upload may requesting pending contractual dispute 39 mr meltser alleges response statement made outlining would engage legal proceeding due paid shift notified dismissal via email toppa sport sent 6 june 2023 stated offered work toppa conduct communication behaviour would like company represented 33 toppa sport summarised position asserting mr meltser engaged independent contractor oral contract term outlined 24 february 2022 email mr meltser paid upon submission invoice toppa sport acknowledged 2022 fee schedule sent 11 october 2022 maintained already discussed reflected invoice submitted mr meltser toppa sport submitted belief mr meltser independent contractor underscored mr meltser submitted invoice abn noting mr meltser signed 2023 fee schedule sent toppa sport nonetheless relied mr meltser subsequent submission invoice reflected rate term 2023 fee schedule toppa sport submitted confirmed mr meltser knew independent contractor supplying equipment time time charging applicable higher rate done toppa sport outlined wanted specific requirement accommodated would convey direction viadeputyand argued mr meltser never asserted employee entitled superannuation advised toppa sport would longer offer contract shift toppa sport confirmed would pay outstanding invoice 34 mr meltser disputed employed independent contractor submitted recruited employee perform job performed employee mr meltser submitted reason toppa sport could requested abn made theindependent contractor agreement 2022available first commenced work refuted suggestion proposed independent contractor relationship contending mr burnett initiator purpose shifting toppa sport superannuation tax burden mr meltser raised multifactorial test submitted apart required furnish toppa sport invoice factor control toppa sport relied acknowledgement mr burnett toppa sport check proof insurance make inquiry working child status mr meltser also asserted mr burnett completely controlled every shift managed minutia operation camera placement claimed accepted shift authorised unilaterally transfer subsequently became unavailable mr meltser also queried requirement perform trial normally requirement employee independent contractor mr meltser rejected suggestion contract required perform work free kind legal obligation provide sd card free alleged dismissed raising contract related issue consideration 35 section 386 1 act relevantly defines meaning dismissed follows 386 meaning dismissed 1 person beendismissedif person employment employer terminated employer initiative b person resigned employment forced conduct course conduct engaged employer 36 order dismissal occurred pursuant tos 368of act mr meltser must employee independent contractor mr meltser invoked multifactorial test argue employee toppa sport however recent decision high court incfmmeu anor v personnel contracting pty ltd personnel contracting 40 andzg operation australia pty ltd anor v martin jamsek or 41 confirmed legal relationship party determined reference right obligation created contract made reference subsequent conduct decision dealt case written contract contrast case case written contract task therefore articulated deputy president colman infrancesca keaveney v marketing 4 u pty ltd another term contract oral implied fact law combination commission must make factual finding conclusion drawn existence oral term term implied fact 42 37 role mr meltser recruited perform persuaded thesports performance analyst videographer role asserted prefer evidence mr burnett toppa sport advertised number role mr meltser engaged perform role camera operator videographer described 24 february 2022 email chronology event evidence correspondence party invoice submitted mr meltser support finding mr meltser performed required perform duty sport performance analyst 38 party agreed telephone conversation mr burnett sent email dated 17 march 2022 working initial trial thereafter saturday discussed matter discussed prefer mr burnett account 24 february 2022 email 2022 fee schedule discussed noted 24 february 2022 email covered range rate payable various task differed based whose filming equipment used work location day upon work offered length shift noted content 2022 fee schedule consider mr meltser explanation compelling despite claiming engaged part timesports performance analyst videographer mr meltser stated particular hour work agreed invoice submitted bear noted 16 mr meltser know week week hour would required work saturday noted process submitting invoice dated 6 november 2022 mr meltser sent email mr burnett 10 october 2022 disclosed neither sport analyst function fixed part time hour work instead stating thank school athletics filming opportunity last week interested expanding range skill would welcome opportunity film water polo hockey basketball etc near future 43 39 mr meltser relied certain inaction mr burnett assert relationship principal independent contractor particular cite failure toppa sport either check proof insurance make fulsome inquiry working child check status mr meltser also relies absence dialogue party follow mr burnett regarding independent contractor agreement 2022 argue relationship instead one employer employee 40 persuaded assertion view inaction identified mr meltser light mr burnett credible witness satisfied inaction part unsophisticated attempt use documentation reflect true character relationship party rather due mr burnett lack attention detail deficiency toppa sport hr system practice mr burnett made concession effect notwithstanding paint management capacity flattering light might pointed similarly consider mr burnett explanation limited purpose toppa sport used thedeputysystem e rostering shift login credible thedeputysystem suited nature operation toppa sport manner engages workforce mr burnett gave frank evidence relation requirement employee independent contractor accept shift indicated indeputythat available work explained retained capacity decline shift mr burnett also gave unchallenged evidence toppa sport business model also involved engagement casual employee 41 way contrast consider mr meltser evidence flavour reconstruction event arisen response claim 195 00 gave rise dispute party constituted billable work consider mr meltser statement sign theindependent contractor agreement 2022because already recruited already classified employee compelling stage engagement mr meltser raise concern toppa sport theindependent contractor agreement 2022 assert response employee mr meltser demand fixed hour work invoiced throughout independent contractor 42 also persuaded mr meltser claim 11 october 2022 first time received anything writing quantum fee rate 2022 fee schedule lower previously discussed firstly 24 february 2022 email disclosed range rate payable various task 2022 fee schedule discussed telephone conversation took place 17 march 2022 5 april 2022 secondly review invoice submitted mr meltser work performed 2022 reveals invoicing work performed using rate applicable rate 2022 fee schedule likewise mr meltser subsequently invoiced toppa sport using rate travel allowance minimum engagement provided 2023 fee schedule thereby accepting variation contained therein term mr meltser evidence suggested capacity decline shift consider mr burnett evidence outlined 40 credible also noted mr meltser able advise unavailable work 12 13 november 2022 44 invoice confirm work day finally note mr meltser 2021 22income tax return described camera operator disclosed personal service income labour hire toppa sport totalling 2 975 00 match sum claimed invoice dated 16 june 2022 submitted toppa sport work performed 7 may 2022 11 june 2022 45 conclusion 43 based evidence mr meltser employee party made oral contract mr meltser would provide camera operator service toppa sport independent contractor term discussed telephone conversation took place 17 march 2022 5 april 2022 included particular outlined 24 february 2022 email various rate outlined 2022 fee schedule later varied 2023 fee schedule mr meltser proceeded work independent contractor invoicing disclosing labour hire income taxation purpose mr meltser dismissed toppa sport application meet requirement ofs 365of act commission jurisdiction deal result determination application made mr meltser pursuant tos 365of act dismissed deputy presidentappearances meltser applicant c burnettfor toppa sport pty ltd hearing detail 2023 melbourne via microsoft team 29 august 1 2020 fcafc 152 2 ibid 67 3 digital court book page 21 4 transcript pn 250 pn 260 5 dcb page 60 6 transcript pn 268 7 transcript pn 285 288 8 transcript pn 292 9 dcb page 34 10 dcb page 34 35 11 dcb page 36 12 transcript pn 90 92 13 transcript pn 85 116 14 dcb page 26 15 dcb page 27 16 transcript pn 331 17 ibid 18 transcript pn 574 576 19 transcript pn 229 236 20 transcript pn 146 150 21 dcb page 20 22 dcb page 122 23 dcb page 106 24 dcb page 102 106 25 address reply employmenthero com 26 dcb page 79 27 dcb page 25 28 transcript pn 374 29 transcript pn 384 386 30 dcb page 33 106 31 dcb page 76 32 transcript pn 414 33 transcript pn 408 34 dcb page 61 77 35 http www ato gov au law view document docid txd td20216 nat ato 00001 36 dcb page 66 37 dcb page 103 38 dcb page 75 39 dcb page 13 40 2022 hca 1 41 2022 hca 2 42 2023 fwc 2343at 17 43 dcb page 73 44 dcb page 74 45 dcb page 106 outlined 25 printed authority commonwealth government printer pr769020 |
Shadi & Chehab [2011] FamCA 824 (25 July 2011).txt | shadi chehab 2011 famca 824 25 july 2011 last updated 12 august 2014family court australiashadi chehab 2011 famca 824family law child previous parenting order discharged extant application dismissed family law act 1975 cth family law rule 2004 cth applicant m shadirespondent mr chehabintervenor independent child lawyer m forsterfile number mlc1743of2008date delivered 25 july 2011place delivered melbourneplace heard melbournejudgment bennett jhearing date bennett jrepresentationcounsel applicant solicitor applicant appearance lampe family lawyer counsel respondent mr dewberrysolicitor respondent mlc lawyerssolicitor independent child lawyerjean forster associatesordersparagraph 1 order made 18 may 2006 continue full force operation 31 december 2011 whereupon lapse subject application either parent granted watch list order relation child b born 1994 c born 1996 born 1998 e born 2002 save order 18 may 2006 previous parenting order hereby discharged extant application dismissed matter removed list case awaiting determination docket honourable justice bennett reason decision day transcribed settled copy made available party independent child lawyer furnished additional copy reason decision may circulate people considers appropriate including following proper officer school currently attended child andms f counsellor family counselling centre subpoenaed document clerk registry return document produced subpoena owner within 14 day notedthat publication judgment pseudonymchehab shadiis approved pursuant tos 121 9 g thefamily law act 1975 cth family court australia melbournefile number mlc 1743 2008msshadiapplicantandmrchehabrespondentandindependent child lawyerreasons judgmentex temporeafter proceeding lasted five year court reason dismissing extant application making order relation child proceeding concerned brief child b nearly 17 year age c 15 13 e 7 half year age parent mr chehab m shadi formerly chehab four child resided father care since late 2005 party separated child removed care mother department human service followed proceeding child court way care protection point considered child spending time mother living father proceeding transferred court make parenting order department human service intervened proceeding post separation mother see child approximately 2007 middle 2009 shortly taken docket final hearing remained whilst concerned said pursued every possible avenue way reunite child mother number professional report matter provided evidence court taken account interim decision along way report include report m g 2006 child aged respectively 12 10 9 4 year lengthy well reasoned report recommended feasible way forward child remain care father relationship mother conclusion report m g foreshadowed child spending time mother would source conflict would troubled obedience loyalty father opined without preparation child find difficult move unless stated concern mother allayed hence family support service would need enlisted related possible move residence m g foreshadowed conflict loyalty relation mere order spending time opined child need support way order court visit mother father may give commitment court take child place see mother however presence diminish child desire see mother report psychiatric assessment party dr h psychiatrist 2007 opined neither parent exhibited symptom psychiatric disorder wrote essentially case two people whose diametrically opposed view relationship parenting capacity totally contrasting necessary court sift relative contribution parent parenting capacity recorded transcribedmore recently child parent issue assessment prepared mr family consultant dated 7 july 2009 purpose saw child aged 14 13 11 6 year parent family consultant noted high degree parental conflict summary commented page 7 8 report follows respective meeting m shadi mr chehab presented conflicting view conflict ongoing parent apportioning blame parent source impasse m shadi reject mr chehab view including comment made child relation treatment prior parent separation m shadi considers child rejection relationship consequence mr chehab brainwashed child considers child scared father simply echo view value relationship meanwhile mr chehab claim m shadi committed ongoing relationship child past abusive treatment child decision separate may explained m shadi mental health problem however contrary dr h psychiatric assessment although apparent parent disagree many aspect led separation perpetuating ongoing conflict apparent common ground m shadi mr chehab unable communicate child despite agreement parenting responsibility remain shared complicating parent conflict incapacity communicate spectre significant disclosure recollection made child experience mother treatment prior separation apparently resulted department human service victoria police placing child father care notwithstanding m shadi denial treatment indeed allegation mr chehab actually behaved similar manner accused statement made child plausible weight need given view beyond capacity family consultant attest veracity otherwise either parent claim however difficult accept m shadi claim child scared father underlying reason rejection relationship mother without exception child individually spoken positively experience living father without exception supportive ongoing relationship mother point time observation child positive interaction father add weight view entirely plausible however mr chehab b indeed combination added complexity matter sabotaging child relationship mother although difficult know extent occurred reasonable say child attending counselling opportunity test aspect lost may indeed support m shadi view relationship child undermined said greater certainty without exception child exposed significant chronic inter parental conflict added developmental load despite current presentation happy intelligent articulate child load relieved simply excluding mother life extent extremely regrettable child supported effectively mr chehab continue attend counselling address child view relationship mother also experience exposure family violence thus trauma assessment provide opportunity child need prioritised mr chehab m shadi supported examine potential establishment relationship child mother particularly address memory experience parent unresolved conflict experience alleged mal treatment delay referral risk likelihood current view experience become entrenched potential lifelong detrimental effect child said likely significant challenge involved process least child need consistent encouragement mr chehab particularly case given b age view may seek undermine counselling process thus contributing challenge mr chehab manage manner m shadi need demonstrate commitment child attending every counselling session upon hearing evidence court find prospect future relationship formed accord particularly e mother supported nurtured mr chehab court may need consider youngest child living mother care dependent recommendation made department human service recognised option present spectre sibling group separated increase importance aforementioned assessment finally given level animosity exists m shadi mr chehab court upon making finding respect various allegation likely need reconsider concept parenting responsibility remaining shared recently court benefit full family report mr dated 30 may 2011 discus later today applicant mother attend court 19 july 2011 filed notice discontinuance proceeding mother seek discontinue original initiating application filed 19 february 2009 amended initiating application filed 19 august 2010 spite ordered 10 february 2010 file amended response 27 august 2010 father application response court document seek specific parenting order significantly mother notice accorded procedural fairness independent child lawyer m forster attends today person appeared throughout proceeding independent child lawyer assessment done could possibly done facilitate meaningful relationship mother child recently mother younger child m forster say misgiving resolution cannot support outcome sanction child meaningful relationship mother view entitled take ultimately however come question today whether proceeding ought continue final order ought made one seek proceeding continue making parenting order court regard best interest child paramount consideration ascertaining best interest child two core consideration first benefit child meaningful relationship parent case brings focus benefit court ass child meaningful relationship mother contested anything meaningful relationship father first consideration much forefront case parental conflict identified various skilled expert m g psychologist dr h adult child psychiatrist mr family consultant effect child cannot daily involved meaningful relationship parent time second core consideration court assessment extent child need protected physical emotional abuse harm whatever previous concern child care mother satisfied concern physical care longer apply regard current age child major aspect relation factor continuation proceeding impacting adversely child point view abusive certain additional consideration court regard determining best interest child vantage point aspect parent capacity parent child relationship others assessed court scope fully contested proceeding proceeding one party discontinued seek play part party application currently court court private law compel party seek order continue litigation apparent child professional assessment information taken counsel time time represented mother father also independent child lawyer become abundantly clear reluctant see mother reluctant see mother complex issue view taken would want see mother say correct view one consistent best interest suspect view reflects victim parental conflict identified professional recorded transcribedsince matter commencing 4 october 2010 appearance involved cobbling together relevant practitioner led independent child lawyer regime experiment time child mother hoped would give rise sustainable relationship child mother initiative failed recent report mr received 30 may 2011 contains evaluation way summary follows 61 based available information apparent child exposed longstanding conflict parent adversely impacted child relationship mother m shadi indicates want relationship mr chehab however despite significant effort facilitate occurring effort number experienced professional done little ameliorate central issue result conflict perpetuated parent continue apportion blame toward parent ongoing impasse mr chehab claim quite openly m shadi committed child cannot provide appropriate environment within relationship flourish held view considerable period time documented child parent issue assessment 2009 m shadi continues express view mr chehab undermines effort parent child relationship b c e despite appeared progress facilitating child relationship mother situation made significantly complicated role assumed elder child b particularly given apparent role peacemaker seeming protector child possibly c given overt rejection mother occurred probability response parent inability unwillingness address conflict thus family become problem saturated opposed solution focussed evidenced parent ongoing increasing claim parent role conflict 62 whilst parent undoubtedly made contribution currently intractable dispute considered another perspective although probably alter final outcome may serve provide different understanding situation developed perpetuated manner addition consideration cultural aspect family may offer insight best proceed particularly m shadi established another relationship recently become engaged 63 m shadi mr chehab identify arabic cultural background heritage considered perspective family separate question raised mother parenting ability previously occurred m shadi father considered significant responsibility respect providing care child talaq divorce occurs implication child live instance child live father implication child child contact may present mother home matter relate culturally sensitive need father protect child child instance stranger male whilst explanation might go way overt additional complexity associated matter little diminish fact child continue exposed parent conflict extent b report assumed role mediator parent seeking mother stop court proceeding addition thought reportedly discussed proposal sister remove sibling current conflictual environment ameliorate pressure experience 64 respect physical wellbeing appears common ground mr chehab provides well four child concern raised point time 65 respect b c given age developmental stage clearly articulated rejection opportunity spend time mother albeit b view compromised interacting mother respect ongoing conflict c modified view somewhat indicating could explore informal arrangement remained adamant would stay night likely even court make provision time either indeed adolescent decide want act accordingly impact view mother however underestimated significant ongoing influence younger sibling irrespective whether mr chehab choose positively promote relationship e mother future whilst sad b c developed view likely view continue remain fixed although possible court proceeding finalised informal time may spent together mother 66 respect e question arises whether may benefit living mother care either together separately extension spend substantial significant time father considering proposal important reflect effort made community agency staff positively influence e strongly held view mother apparent despite effort e altered view would seem little prospect change occurring even placed primarily m shadi care spite sibling group split decision separate child considered e best interest given length time lived father care given evidence physical need well provided mr chehab addition apparent e sound relationship older sibling present protective younger sibling child separated older sibling order reduce negative influence exposed irrespective source decision likely limited effect improving child relationship mother considered case child continue spend time b c father home addition attending school elder sibling thus considerable opportunity remain arrangement undermined result unresolved conflict perpetuated future 67 respect proposal separate e sibling group likely option may result becoming resentful primarily towards mother spent limited time throughout life e likely feel singled given view mother effect feel punished required live mother end proposal separate sibling group considered e best interest 68 despite doubt family consultant mind benefit e relationship mother nurtured question arises however extent occur particularly given cultural implication m shadi partnering given complexity may leave court one two option either support child view spend court defined imposed time mother decision may result significant reduction conflict child exposed irrespective whether mr chehab main proponent alternatively consideration given child spending day time together mother fiancé present may appeal mr chehab although likely challenge m shadi given application question arises whether arrangement sustainable m shadi marries 69 said categorically irrespective alliance whether might appear case mr chehab actively influenced view four child continue experience significant emotional burden consequence parent conflict likelihood situation exacerbated ongoing court event extent older child begun take matter hand view parent unwillingness inability resolve conflict professional literature respect unequivocal impact child exposed long term unresolved parental conflict thus absence agreement m shadi mr chehab given history would seem unlikely child benefit significantly court prioritises need shielded ongoing conflict litigation essence may well mean sadly m shadi application spend substantial significant time child supported point time unlikely result cessation conflict therefore litigation family consultant recommended child continue live primarily father significant weight given b c view wanting spend time mother point andconsideration cultural complexity included negotiation regarding e time father consideration given day period alternate weekend time may agreed parent matter returned court following report 1 july 2011 date upon matter listed mention anticipation final hearing today 25 july 2011 1 july agreed would one mini trial eandd seeing mother hearing date today would remain would obvious two week whether going feasible mother continue see child 1 july necessary decide whether dande attended mother saturday sunday weekend 9 23 july mother sought e attend first weekend permitted attend weekend commencing 23 july hour 2pm 7pm saturday 5pm 7pm sunday mother case exclude first weekend time based least part allegation earlier occasion 11 june 2011 company three friend attended residence approximately 8pm taken mobile phone possession never returned youngest son held knife weapon father said knowledge incident involving knife best recall much knowledge incident mother save view time proceeding well independent child lawyer indicated would require production document victoria police relation incident done appears document mother reported burglary 11 june 2011 son one perpetrator mention police note knife asked victoria police press charge refused today counsel husband say ought make finding whether knife whether attended mother home aggressively threateningly knife particular say ought make finding knife submitted might healthy suspicion knife present also much confidence finding one present knife involved regard fact mother reporting fact victoria police mention knife furthermore told father attended company three male therefore point view anyone feeling threatened need defence resort weaponry three companion would needed knife mother would outnumbered allegation father emanating incident mother asked partner go kitchen get knife partner left room return far father concerned accepts version mention knife came mother counsel father make obvious point mother evidence tested attend court give evidence directly last occasion allegation came counsel case many le adversarial trial matter indeed rebuttal allegation come today evidence obtained directly mother last occasion evidence sought led father occasion seems respect version fairly equal ring truth though mother allegation made without able discern ulterior motive allegation made really put new level consequence parental conflict matter pressure child virtue required time time comply order see mother context proceeding continuing allegation raised mother likely work time child amidst unresolved apparently unresolvable conflict benefit whatsoever furthermore knife failure mother mention view consistent position relation invited lay charge relation intrusion refusing one version greater ring truth mother effect visited residence knife context court ordered visit sister spend time mother mention incident demonstrates view disturbing also potentially dangerous consequence permitting proceeding continue end sight parental conflict conflict loyalty child share independent child lawyer sense foreboding child grow adult fairly certain lessor functioning adult result conflict parent consequence conflict child inability relationship parent particularly relation girl likely feel potently carry shortcoming deficiency come believe mother heard counsel father anticipation today instructing solicitor new proceeding given matter much thought consideration whilst aware mother discontinued proceeding prepared put certain constructive proposal court mother mean trying ignite willingness child spend time spend time mother independent child lawyer comment seen matter come avail interpret cynical comment reflective fact everything could done family bring child together mother view already tried failed negative manner three eldest child view mother view become personal view likely upset displaced near future likely origin cause manner child raised father primary effectively parent since late 2005 easy feel frustration disappointment anger relation parent permit child relationship parent extent parent able relationship child however ultimately decision made best interest child cannot distracted fact one parent may little justification somewhat destructively succeeded limiting extinguishing relationship parent child incident 11 june 2011 demonstrates child collaterally damaged order procedure designed bring toward mother satisfied best interest child order made point require see spend time communicate mother brings disposition proceeding mother discontinued application father application response court despite directed file amended response circumstance case satisfied make parenting order would contrary best interest child accordingly inclined make parenting order would subject exception required adopt starting point best interest child parent equal shared parental responsibility 1 parental responsibility relation child mean duty power responsibility authority law parent relation child 2 equal shared parental responsibility relates decision making major long term issue defined in 4of act follows issue care welfare development child longterm nature includes limited issue nature child education current future andb child religious cultural upbringing andc child health andd child name ande change child living arrangement make significantly difficult child spend time parent presumption provide starting point amount time communication child parent two person share parental responsibility equally relation major long term issue parenting order required make decision jointly 3 concept joint responsibility carry requirement consult parent relation decision made issue 4 make genuine effort come joint decision issue 5 provision mean consultation discussion party required regarding major long term decision parental responsibility shared presumption best interest child parent equal shared parental responsibility apply rebutted following circumstance court reasonably belief parent child person life parent child engaged family violence 6 abuse child another child member parent family 7 interim hearing court considers inappropriate presumption apply 8 evidence adduced upon court satisfied would best interest child child parent equal shared parental responsibility child 9 case would satisfied parent wholly unable make decision jointly unable consult likewise however could satisfied father sole parental responsibility satisfied outcome parenting order including leaving intact position unders 61cwhereby parent parental responsibility mean father attend need child mother right obtain information government agency school like diminished issue need consider watch list order since 2005 order preventing child leaving australia assume operates vi à vi husband wife seems order may well overlooked mother decided discontinue proceeding father say intention taking child australia speculate c may fortunate enough go overseas country j next year part school trip would reading case first child done father say modest financial mean overseas trip may viable event seems period six month enough let dust lie case order continue meantime thereafter lapse subject either party applying continue another order take effect place said mean either parent take child overseas send overseas without consent travel document passport continue watch list order 31 december 2011 whereupon lapse father seek travel document passport child allow least two three month time filing application date need passport order expedite matter however order application practicable listed satisfied dismissal application discharge parenting order course open today consistent child best interest many respect least worst result result think serf child best circumstance concludes reason judgment order deliveredi certify preceding fifty 50 paragraph true copy reason judgment honourable justice bennet delivered 25 july 2011 associate date 26 october 2011 1 family law act 1975 cth 61da 1 2 family law act 1975 cth 61b 3 family law act 1975 cth 65dac 2 4 family law act 1975 cth 65dac 3 5 family law act 1975 cth 65dac 3 b 6 family law act 1975 cth 61da 2 b 7 family law act 1975 cth 61da 2 8 family law act 1975 cth 61da 3 9 family law act 1975 cth 61da 4 |
Herbert & Borden [2014] FCCA 2323 (13 October 2014).txt | herbert borden 2014 fcca 2323 13 october 2014 last updated 7 november 2014federal circuit court australiaherbert borden 2014 fcca 2323catchwords family law property settlement marital relationship debt owing wife father whether debt owed party husband company wife made significant initial contribution wife equity house substantially dissipated borrowing husband company wife capacity gainful employment significant asset wife house husband superannuation family law spousal maintenance whether wife unable adequately support whether husband reasonably able maintain wife legislation family law act 1975 s 72 1 74 1 75 2 75 3 79 79 2 79 4 case cited bevan bevan 2013 flc 93 545 2013 famcafc 116stanford v stanford 2012 247 clr 108 2012 87 aljr 74 2012 47 fam lr 481 2012 flc 93 518 2012 293 alr 70 2012 hca 52applicant m herbertrespondent mr bordenfile number mlc 1639 2013judgment judge rileyhearing date 12 february 2014 12 21 march 2014date last submission 3 october 2014delivered melbournedelivered 13 october 2014representationcounsel applicant applicant appeared personsolicitors applicant applicant representedcounsel respondent respondent appeared personsolicitors respondent respondent representedorders 1 purpose order mr borden born omitted 1975 husband member spouse member number omitted b m herbert born omitted 1964 wife non member spouse c superannuation fund omitted super trustee mean trustee person corporation responsible time time management investment superannuation fund 2 order 3 6 order binding trustee 3 base amount allocated m herbert mr borden interest superannuation fund 57 938 21 base amount 4 accordance withs 90mt 1 thefamily law act 1975 whenever trustee make splittable payment interest held husband superannuation fund trustee shall pay wife amount calculated accordance withpart 6of thefamily law superannuation regulation 2001using base amount specified order 3 hereof corresponding reduction entitlement husband would order 5 order 4 effect operative time 6 operative time purpose order beginning fourth business day day sealed copy order served upon trustee 7 happening establishment separate account name m herbert superannuation fund b transfer rolling another superannuation fund superannuation account payment split created order 4 hereof c m herbert satisfies condition release paid payment split created order 4 hereof m herbert executing waiver right within meaning ofs 90mzaof thefamily law act 1975in relation payment split created order 4 hereofmr borden hereby restrained servant agent executing death benefit nomination favour person act thing would render part interest superannuation fund splittable payment within meaning ofregulations 12or13of thefamily law superannuation regulation 2001 8 copy order served forthwith upon trustee 9 within 14 day husband transfer wife 2 100 virgin share husband expense pay wife 700 b husband pay wife 11 400 weekly instalment 300 husband acknowledged failed pay at3 october 2014 ii 165 amount paid wife statement husband current superannuation benefit c husband act thing necessary change address address business omitted liquidation relevant agency property h appropriate address 10 husband pay wife spousal maintenance 500 per week 15 year indexed 1 july year accordance consumer price index 11 within 60 day husband wife thing necessary seek refinance mortgage property h property husband expense wife solely liable mortgage property 12 event wife unable within 60 day refinance mortgage property wife arrange sale property agent choosing reserve choosing 13 upon completion sale proceeds sale applied firstly pay cost commission expense sale b secondly discharge mortgage encumbrance affecting property c thirdly pay balance wife 14 unless otherwise specified order save purpose enforcing monies due subsequent order party solely entitled exclusion superannuation property including choses action owned possession party date order b insurance policy remain sole property owner beneficiary named thereon c party solely liable indemnify liability encumbering item property party entitled pursuant order joint tenancy party real personal estate hereby expressly severed noted publication judgment pseudonymherbert bordenis approved pursuant tos 121 9 g thefamily law act 1975 cth federal circuitcourt australia atmelbournemlc 1639 2013ms herbertapplicantandmr bordenrespondentreasons judgmentintroductionthis application property adjustment unders 79of thefamily law act 1975 act delivery judgment matter substantially delayed wife difficulty obtaining statement husband superannuation difficulty affording trustee husband superannuation fund procedural fairness husband wife began living together october 2004 married omitted 2006 separated march 2011 divorced 18 may 2013 one child x born omitted 2008 wife two child previous relationship 20 year old z 16 year old z asperger syndrome us illicit drug time cohabitation wife owned substantial equity house became matrimonial home substantial asset party husband superannuation relationship house heavily mortgaged purpose husband business borrowing family member purpose husband business mortgage borrowing remain largely outstanding principal issue proceeding whether money lent wife father husband wife husband company whether property adjustment andwhether husband pay wife spousal maintenance legislationsection 79of act give court power alter interest party marriage property party marriage sub section 79 2 act provides court shall make order section unless satisfied circumstance equitable make order section 79 4 act set matter court must take account considering order made alteration interest party property matter financial contribution made directly indirectly behalf party marriage child marriage acquisition conservation improvement property party marriage either otherwise relation lastmentioned property whether lastmentioned property since making contribution ceased property party marriage either b contribution financial contribution made directly indirectly behalf party marriage child marriage acquisition conservation improvement property party marriage either otherwise relation last mentioned property whether last mentioned property since making contribution ceased property party marriage either c contribution made party marriage welfare family constituted party marriage child marriage including contribution made capacity homemaker parent effect proposed order upon earning capacity either party marriage e matter referred insubsection 75 2 far relevant f order made act affecting party marriage child marriage g child support thechild support assessment act 1989that party marriage provided provide might liable provide future child marriage matter taken account unders 75 2 act follows age state health party b income property financial resource party physical mental capacity appropriate gainful employment c whether either party care control child marriage attained age 18 year commitment party necessary enable party support ii child another person party duty maintain e responsibility either party support person f subject subsection 3 eligibility either party pension allowance benefit law commonwealth state territory another country ii superannuation fund scheme whether fund scheme established operates within outside australia rate pension allowance benefit paid either party g party separated divorced standard living circumstance reasonable h extent payment maintenance party whose maintenance consideration would increase earning capacity party enabling party undertake course education training establish business otherwise obtain adequate income ha effect proposed order ability creditor party recover creditor debt far effect relevant j extent party whose maintenance consideration contributed income earning capacity property financial resource party k duration marriage extent affected earning capacity party whose maintenance consideration l need protect party wish continue party role parent either party cohabiting another person financial circumstance relating cohabitation n term order made proposed made undersection 79in relation property party ii vested bankruptcy property relation bankrupt party naa term order declaration made proposed made underpart viiiabin relation party marriage ii person party de facto relationship party marriage iii property person covered subparagraph person covered subparagraph ii either iv vested bankruptcy property relation person covered subparagraph ii na child support thechild support assessment act 1989that party marriage provided provide might liable provide future child marriage fact circumstance opinion court justice case requires taken account p term financial agreement binding party marriage q term anypart viiiabfinancial agreement binding party marriage approach application unders 79instanford v stanford 2012 247 clr 108 2012 87 aljr 74 2012 47 fam lr 481 2012 flc 93 518 2012 293 alr 70 2012 hca 52 high court explained proper approach application unders 79of act follows 37 first necessary begin consideration whether equitable make property settlement order identifying according ordinary common law equitable principle theexistinglegal equitable interest party property question posed bys 79 2 thus whether regard thoseexistinginterests court satisfied equitable make property settlement order emphasis added 38 second althoughs 79confers broad power court exercising jurisdiction act make property settlement order power exercised according unguided judicial discretion inwirth v wirth dixon cj observed23that power24 1 make order respect property cost judge think fit question husband wife title possession property power rest upon law upon judicial discretion 39 power make property settlement order exercised unprincipled fashion whether equitable make order answered assuming party right interest marital property different exist recognised thats 79of act must applied keeping mind c ommunity ownership arising marriage place common law 26 1 question husband wife ownership property may may past enjoyed common decided according scheme legal title equitable principle govern right two person spouse 27the question presented bys 79is whether right interest altered emphasis added 40 third whether making property settlement order equitable answered beginning assumption one party right property party divided right interest marital property fixed reference various matter including financial contribution set in 79 4 power make property settlement order must exercised accordance legal principle including principle act lay 28 1 conclude making order equitable onlybecause reference various matter in 79 4 without separate consideration ofs 79 2 would conflate statutory requirement ignore principle laid act emphasis added many case application made property settlement order equitable requirement readily satisfied observing result choice made one party husband wife longer living marital relationship equitable make property settlement order case thereafter commonuseof property husband wife le importantly express implicit assumption underpinned existing property arrangement brought end voluntary severance mutuality marital relationship express implicit assumption party may made effect existing arrangement marital property interest sufficient appropriate continuance marital relationship brought end ending marital relationship assumption adjustment interest could effected consensually needed desired also brought end hence equitable court make property settlement order order made determined applyings 79 4 emphasis added instanford critical fact party separated wife suffered stroke moved nursing home party marriage intact wife case guardian daughter earlier marriage sought alteration property interest wife died judgment full court family court reserved consequently full court family court came exercise discretion wife future need husband high court noted 47 court adequately considered consequence husband order made namely home would sold backdrop high court emphasised equitable requirement ofs 79 2 act necessarily satisfied merely consideration contribution party described in 79 4 act however usual case court party separated high court acknowledged 42 equitable requirement would readily satisfied followingstanford longer appropriate think contribution based entitlement adjustment based future factor rather court required take account relevant matter determine order equitable also longer appropriate think pool asset 1 additionally significantly case high court emphasised marriage common law create community ownership 39 right person might partner property income arise act notablys 79 4 72 1 respectively relation income 72 1 act provides party marriage liable maintain party extent first mentioned party reasonably able party unable support adequately whether reason care control child marriage attained age 18 year b reason age physical mental incapacity appropriate gainful employment c adequate reason regard relevant matter referred insubsection 75 2 word absolute right share equally income partner rather right arises person able adequately support party reasonably able support first mentioned party consequently obligation contribute one earnings matrimonial endeavour however one party marriage spends substantial part income extraneous pursuit obviously effect person contribution party asset stanfordrequires following matter determined application brought unders 79of act whether party separated asset liability party contribution party future need party bearing mind foregoing matter whether equitable make order altering interest party property andwhat order equitable circumstance case stanforddoes require matter addressed particular order case would seem rational consider order set seem possible determine whether equitable make order altering party interest property without matter mentioned previously determined seems clear opening word ofs 79 4 act considering order made section property settlement proceeding court shall take account various matter set in 79 4 approach outlined consistent decision full court family court inbevan bevan 2013 279 flr 1 2013 49 fam lr 387 2013 famcafc 116 note case full court said 89 view le likely separate issue arising unders 79 2 4 conflated judge refrain fromevaluatingcontributions relevant factor percentage monetary term first determined would equitable makeanorder also note inbevan 79 full court said relation addbacks observe notional property sometimes added back list asset account unilateral disposal asset unlikely constitute property party marriage either thus amendable alteration unders 79 important deal disposal carefully recognising asset longer exist disposal form part history marriage potentially important part question arise need say nothing topic save note thats 79 4 particular 75 2 give ample scope ensure equitable outcome dealing unilateral disposal property whether party separatedthe party agreed separated asset liabilitiesthe party agreed wife individual asset time trial follows wife assetsvalueproperty h 1 100 000toyota omitted 30 000household content 10 000wife total asset 1 140 000wife superannuation 0wife total asset plus superannuation 1 140 000the party agreed wife individual liability time trial follows wife liabilitiesvaluecredit card 45 000wife total liability 45 000wife total asset plus superannuation le liability 1 095 000the party agreed husband individual asset time trial follows husband assetsvalue2 100 omitted share 700household content 2 000ford omitted 500husband total asset 3 200husband superannuation estimate omitted super omitted super 50 000 60 000husband total asset plus superannuation 113 200the party agreed husband individual liability time trial follows husband liabilitiesvalue omitted bank business card 12 500husband total liability 12 500husband total asset plus superannuation le liability 100 700the party agreed joint asset agreed joint liability consisting mortgage property h sum 710 000 party agreed wife father mr c lent 120 000 130 000 someone disagreed identity borrower wife said husband borrowed money husband said company business omitted borrowed money business omitted liquidation appears prospect repaying debt mr c gave oral evidence said lent money daughter son law purpose business conducted husband wife namely business omitted liquidation wife also gave evidence money lent father husband husband gave evidence mr c lent money business omitted liquidation husband seemed impression money lent business purpose lent business business omitted liquidation however follow borrower chooses spend borrowed fund particular purpose change identity borrower loan documented way uncommon lend money within family without loan documentation would unusual lend money company without loan documentation moreover husband produce company record balance sheet show company indebted mr c husband claimed debt mr c liquidator list creditor business omitted liquidation however husband produce list court importantly husband produce record liquidator show accepted existence debt business omitted liquidation mr c distinction alleged debt accepted liquidator come insolvency court circumstance accept mr c lent money business omitted liquidation accept mr c evidence lent money daughter son law gave evidence confidence accord common human experience scenario suggested husband would unusual seems based husband view money must lent business omitted liquidation ultimately used purpose business omitted liquidation stated follow specifically accept money lent husband wife husband cross examination asked mr c money passed u seems clear money lent husband wife mr c gave clear evidence expected money repaid evidence challenged consequently joint liability 120 000 130 000 mr c treated debt 125 000 husband also said father lent 150 000 business omitted liquidation husband said although money lent company felt moral obligation repay said made repayment stopped husband said father said money could repaid husband inheritance husband child effect statement husband understanding money never repaid father debt ever repaid liability need taken account proceeding regardless whether true borrower husband wife jointly rather business omitted liquidation wife individual asset plus superannuation le liability agreed value 1 095 000 husband individual asset plus superannuation le liability agreed value 100 700 party joint debt 835 000 combined total value asset le liability plus superannuation therefore 360 700 completeness note party initially claimed business omitted liquidation currently asset worth 100 000 shipping container held storage facility wife claimed charge asset matter adjourned enable asset located valued however transpired asset could found party stage agreed asset business omitted liquidation charge worthless consequently included party combined asset contributionsa initial contributionsthe party agreed commencement cohabitation wife property h encumbered mortgage 40 000 25 000 superannuation anda car worth 10 000 party agreed commencement cohabitation husband 40 000 superannuation andshares 700 party disagreed property h worth time cohabitation wife estimated time worth 900 000 husband estimated worth 700 000 absence expert evidence possible attribute particular value house commencement cohabitation however sufficient note agreed value 1 100 000 major work done house commencement cohabitation trial b contribution cohabitationcohabitation occurred 2004 2011 wife stopped working time cohabitation receipt centrelink benefit also received child support two child sum paid small mortgage onproperty h outgoings utility household expense husband worked 2005 onwards party married 2006 wife stopped receiving centrelink benefit time marriage x born 2008 also 2008 party drew 600 000 mortgage property h money borrowed jointly borrowing purpose husband business business omitted liquidation time husband paid mortgage property h 2010 party drew 100 000 mortgage 2011 drew 50 000 mortgage borrowing purpose business omitted liquidation largely cohabitation debt wife credit card grew 45 000 party agreed debt entirely purpose business business omitted liquidation sum still outstanding additionally largely cohabitation debt husband credit card grew 12 500 party agreed debt entirely purpose business omitted liquidation throughout period cohabitation wife family provided much food husband wife x wife two older child time cohabitation wife full time mother wife predominantly responsible looking garden house wife mother also assisted running household caring child husband attended home maintenance occasionally mowed lawn c contribution post separationsince separation x 5 year old time trial lived wife spent alternate weekend husband husband pay wife child support 275 per week payment date following separation wife remained property h pay mortgage 3 000 per month interest basis wife separation able withdraw superannuation 25 000 used prevent foreclosure property h wife also receives child support father two older child disability pension carer payment husband ordered judge hughes pay wife 300 per week characterised trial 30 october 2012 husband made payment 21 march 2014 made eight payment totalling 2 400 husband said made payment wife sold unregistered car left place kept 2 000 proceeds sale wife agreed sold car asking husband collect said used proceeds clean steel husband left place consider husband right offset obligation pay wife 300 per week pursuant order court perceived wife debt 2 000 even real debt husband obliged comply order court event 2 000 real debt husband abandoned car wife home entitled get rid use proceeds clean junk husband left behind consider 300 per week properly characterised spousal maintenance discussed wife needed financial assistance husband husband capacity pay 300 per week march september 2011 husband lived factory october 2011 returned wife place lodger november 2011 began renting omitted remained october 2011 december 2012 husband paid 39 541 towards mortgage course largely debt incurred purpose business thes 79 4 e f g thes 75 2 factorsthe wife 49 year old husband time trial 39 year old wife receives 1 211 per week consisting parenting payment 382 family payment 85 179 child support z 296 child support x 269 per week superannuation pension able access compassionate ground husband employed salary 2 300 per week 120 000 annually company car telephone contract due expire june 2014 however nothing suggest able obtain similar employment future husband healthy wife annexed affidavit medical report dated 21 august 2013 said wife severe depression anxiety requiring ongoing medication counselling also said wife suffers sle also known lupus manifest joint pain affecting multiple joint also affect respiratory system causing shortness breath report also said wife care son z suffers asperger syndrome obedience compliance disorder medical report concluded wife unable work due condition entirely clear whether doctor meant wife unable work medical condition z medical condition well event wife said mostly need provide extensive care z prevented working said serious behavioural issue meant could sure would school school hour could called upon time collect wife also annexed affidavit report psychiatrist regarding z said asperger syndrome sometimes used marijuana angry aggressive 2 august 2013 supervision order made placing z supervision mother 2 august 2013 1 may 2014 wife said circumstance unable work husband said wife trained occupation omitted could work part time wished event husband said penalised wife caring another man son consider wife present capacity appropriate gainful employment capacity foreseeable future reason partly wife physical mental condition partly z physical mental condition extent may necessary take account impact z condition wife earning capacity unders 75 2 act irrelevant z biological son husband husband married wife knowing z mother knowing z certain condition one consequence z condition conjunction wife physical mental condition wife unable work property party ascertained proceeding term financial resource party supportive family wife get help family form food child care husband wife received loan family purpose husband business wife father since separation provided wife 20 000 30 000 financial assistance wife care control one child marriage 12 day fortnight father care control child two day fortnight wife usual commitment support x z duty maintain corollary wife commitment support z physically emotionally cannot paid employment wife older daughter independent husband usual commitment support x party responsibility support anyone else wife according financial statement sworn 27 june 2013 receives parenting payment rate 382 per week family payment rate 85 per week superannuation pension rate 269 per week husband eligible pension allowance benefit paid government superannuation fund circumstance case modest standard living party would reasonable suggested either party wish undertake course education training establish business relation effect proposed order ability creditor party recover creditor debt far effect relevant wife seek order husband name removed mortgage retain property h husband seek order property h sold proceeds divided party court deems fit alternative husband receive 50 000 wife receive balance order husband seek would effect discharging mortgage party principal creditor would thus paid would also sufficient fund pay 125 000 owing party major creditor wife father order wife seek would relieve husband liability mortgage bank agree mortgage refinanced wife sole name bank would need satisfied wife would able meet repayment 710 000 mortgage seems unlikely given financial circumstance told court bank agreeable course court order party attempt refinance however bank joined party proceeding therefore bank bound order court make court cannot order bank accept mortgage wife alone bank may well prefer property sold recover money hand wife currently paying 3 000 per month interest mortgage repayment may assistance family able meet capital interest mortgage repayment property h proceeding finalised property h sold appears unlikely 125 000 debt wife family ever repaid wife also 45 000 credit card debt consists largely debt incurred husband business credit card debt could repaid house sold presumably difficult wife repay debt house sold husband credit card debt 12 500 would seem likely given size husband earnings debt repaid regardless outcome proceeding suggested either party contributed existing income property earning capacity financial resource said wife family contributed lot money husband business money essentially lost husband effect contributed significantly wife level debt marriage lasted six year suggested marriage affected earning capacity either party wife wish continue role full time mother x z neither party cohabiting another person except wife case x z discussed wife family assist food grocery term property order apply party determined case husband pay wife 296 per week child support binding financial agreement party fact circumstance justice case requires court take account whether equitable alter party property intereststhe party agreed would equitable alter property interest case view paragraph 42 ofstanford fact party longer living marital relationship various finding made relation contribution future need also consider would equitable alter party property interest case order equitablesome order sought party discussed context effect creditor proposed order addition wife initially sought 100 husband superannuation however direction hearing 3 october 2014 wife told court seek 57 938 21 husband omitted super fund seems equitable case wife asset seek equity property h husband superannuation omitted super fund toyota omitted husband share reason wife made overwhelming initial contribution wife greater future need husband husband purpose business large extent depleted wife equity house although husband make contribution marriage pale insignificance wife large initial contribution future need impact large initial contribution may diminish time present case marriage fairly short order husband transfer superannuation omitted super share wife would equitable husband transfer additional asset wife however except household content car little value 50 000 approximately superannuation wife seek item court able order husband pay wife sum money future earnings way property settlement similarly court able order husband repay mr c husband future earnings although husband might right thing future repay mr c seems extremely unlikely given husband present intention repaying father given husband claim owes money mr c relation property h proper basis husband receive share although husband contributed mortgage mortgage largely referable business debt husband mortgage repayment contribute wife equity property contrary borrowing purpose husband business reduced wife equity property would equitable husband shoulder virtually entirety debt property h however reality joint several debt neither party pay mortgage bank foreclose wife wish retain house prepared accept whole debt house basis alone consider equitable allow wife attempt refinance property unsuccessful house sold order accordingly well order usual kind wife also sought order husband change address address business omitted liquidation relevant authority husband oppose order proper made wife also sought order husband pay wife cost obtaining statement superannuation benefit husband oppose order proper made spousal maintenancethe wife sought retrospective prospective spousal maintenance section 72 1 act provides party marriage liable maintain party extent firstmentioned party reasonably able party unable support adequately whether reason care control child marriage attained age 18 year b reason age physical mental incapacity appropriate gainful employment c adequate reason regard relevant matter referred insubsection 75 2 matter referred sub 75 2 act set considered context property application rely consideration purpose spousal maintenance application well virtue ofs 75 3 act court required disregard wife entitlement centrelink benefit court required unders 74 1 act take account specified matter make order think proper first question relation spousal maintenance whether wife able adequately support without spousal maintenance without centrelink benefit clear wife able adequately support without spousal maintenance centrelink benefit leaving aside centrelink benefit receives wife weekly income 744 weekly outgoings disclosed financial statement sworn 27 june 2013 925 mortgage interest 885 credit card 1 813 expense expense include 540 per week medical expense 400 child husband cross examined wife medical expense otherwise accepted wife claimed expense relation medical expense wife clarified spends 140 per week medical expense consisting 125 psychologist 15 antidepressant lupus medication wife said time swore financial statement z seeing psychiatrist twice week net cost rebate 340 per week however z time trial seeing different psychiatrist charging 130 per week balance medical expense x suffers allergy need antibiotic antihistamine wife current medical expenditure 210 le per week swore financial statement consequently current weekly expense 925 mortgage interest 885 credit card 1 603 expense totalling 3 413 however allowance must also made likelihood wife required bank litigation finalised make repayment reduce capital outstanding mortgage assuming 15 year repayment schedule wife would required make payment approximately 1 500 per week calculation present omitted bank standard variable interest rate would make wife weekly expense 4 913 per week income 744 spousal maintenance centrelink benefit excluded discussed wife able work due medical psychological condition due need available assist z medical psychological condition consider z need adequate reason within meaning ofs 72 1 c act next question whether husband reasonably able maintain wife financial statement sworn 11 august 2013 husband said gross weekly income 2 300 said paid tax 657 superannuation 213 rent 250 loan repayment father 100 child support x 300 expenditure 1 141 making total 2 661 would mean husband weekly shortfall 361 included husband expenditure amount 400 per week accounting legal expense husband conceded cross examination longer paying legal expense said paying 50 per week accounting expense would work 2 600 accounting expense seems extraordinary given husband employee would thought 10 per week would required husband accounting expense husband also included expenditure 100 per week holiday 100 per week entertainment amount 10 400 per year holiday entertainment circumstance case consider figure 50 per week husband entertainment holiday would reasonable husband also agreed cross examination longer paying father 100 per week loan repayment based reduction 390 per week legal accounting expense 150 per week holiday entertainment 100 per week loan repayment make total reduction 640 per week figure husband would weekly surplus 279 however also note husband said financial statement pay 213 per week superannuation husband listed personal expenditure assume personal voluntary superannuation payment rather employer compulsory superannuation payment circumstance case seems unreasonable husband make additional superannuation payment adding 213 279 give 492 rounded 500 consequently circumstance case seems husband would reasonably able pay wife 500 per week spousal maintenance court often put end date order spousal maintenance case seems unlikely wife ever able work given age health issue given z unlikely ever fully independent circumstance consider husband pay wife spousal maintenance 15 year long time spousal maintenance indexed accordance consumer price index 1 july year party case capacity necessary calculation relation order made judge hughes 30 october 2013 husband pay 300 per week characterised trial consider amount characterised spousal maintenance husband conceded direction hearing on3 october 2014 failed pay weekly instalment 300 amounting 11 400 husband required pay sum within 14 day order accordingly certify preceding one hundred twelve 112 paragraph true copy reason judgment judge rileyassociate date 13 october 201423 1 956 1956 hca 71 98 clr 228at 231 2 1956 hca 71 wirth 24given bys 21of married woman property act 1890 1952 qld provision whichcorresponded withs 17of married woman property act 1882 imp 26hepworth v hepworth 1 963 110 clr 309at 317 1964 alr 259at 264 1963 hca 49 hepworth per windeyer j 27hepworth clr317 alr 264per windeyer j see also wirth 231 2 per dixon cj 28watson clr257 alr 560 fam lr 1 1 305 1 parkinson patrickfamily property law three fundamental proposition stanford v stanford 2013 3 fam l rev 80at 88 |
Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. 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file proposed rejoinder r 16 08 thefederal court rule 2011 court consideration power control process interest efficient case management held certain fact relied upon proposed rejoinder inadequate justify conclusion disclose reasonable defence extent leave required leave refused security cost motion notice security cost past cost tranche security agreed commencement proceeding cross claimant incorporated resident outside jurisdiction whether offer security appropriate complexity duration proceeding protracted security cost specifically past cost discretion court factor relevant exercise discretion expert quantification likely position taxation held motion security refused cross claimant offer security appropriate legislation federal court australia act 1976 cth s 37m 56federal court ruleso 62 r 19federal court rule 2011rr 16 02 16 08 16 21 16 55cases cited adam v cape industry plc 1990 ch 433citedak investment cjsc v kyrgyz mobil tel limited or 2011 ukpc 7citedallstate life insurance co 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626citedspirits international b v v fkp sojuzplodimport 2011 fcafc 69citedszanto v bainton 2011 nswsc 985citedthe government russian federation v yuri victorovich shefler city westminster magistrate court 8 june 2010 unreported citedthe government russian federation v yuri victorovich shefler city westminster magistrate court 8 june 2010 unreported citedvolkova v russia48758 99 2005 echr 214citedvoth v manildra flour mill pty ltd 1990 hca 55 1990 171 clr 538citedwainter pty ltd v freehills firm 2 2009 fca 770citedwilliams advanced material inc v target technology co llc 2004 fca 1405 2004 63 ipr 645citeddate hearing 27 september 2011place sydneydivision general divisioncategory catchwordsnumber paragraph 117counsel cross claimant mr scg burley sc mr ar lang mr c burgesssolicitor cross claimant sagacious legal pty limitedcounsel cross respondent mr r cobden sc mr pw flynnsolicitor cross respondent mallesons stephen jaquesin federal court australianew south wale district registrygeneral divisionnsd 1816 2004between federal treasury enterprise fkp sojuzplodoimportfirst cross claimantfederal public unitary enterprise external economic union sojuzplodoimport fgup vo second cross claimantand spirit international b v registered netherlands cross respondentjudge edmonds jdate order 25 january 2012where made sydneythe court order 3 february 2012 party file draft short minute order give effect reason judgment default agreement ii cross claimant cross respondent file draft short minute order give effect reason judgment matter listed direction 10 february 2012 9 30 note entry order dealt rule 39 32 federal court rule 2011 federal court australianew south wale district registrygeneral divisionnsd 1816 2004between federal treasury enterprise fkp sojuzplodoimportfirst cross claimantfederal public unitary enterprise external economic union sojuzplodoimport fgup vo second cross claimantand spirit international b v registered netherlands cross respondentjudge edmonds jdate 25 january 2012place sydneyreasons judgmentintroductionthis motion notice filed 23 december 2010 heard 27 september 2011 motion cross respondent spirit sought inter alia order 1 cross claimant fkp give discovery document relating separate question subject order made 26 november 2010 leave appeal order refused 20 may 2011 spirit international b v v fkp sojuzplodoimport 2011 fcafc 69 reference five category 2 leave granted spirit file serve amended defence amended cross claim form previously provided fkp solicitor 3 fkp provide additional security spirit cost respect cross claim sum 1 200 000 within 14 day making order way payment controlled money account maintained fkp solicitor time motion came hearing order sought extent overtaken event 1 dispute spirit category discovery fkp relation separate question resolved extent category 1 2 consent agreed b category 3 pressed c category 4 5 still dispute course hearing senior counsel spirit stated category 4 5 longer pressed consequence longer dispute scope fkp discovery document relating separate question 2 issue leave file pleading resolved extent fkp intends file second amended cross claim requires leave spirit consent leave granted basis fkp pay spirit cost thrown away reason amendment b fkp accepts spirit require leave file defence second amended cross claim see r 16 55 thefederal court rule 2011 fcr c fkp requires leave file proposed reply certainly insofar raise claim previously pleaded spirit consent leave granted basis fkp pay spirit cost thrown away reason amendment spirit say require leave file proposed rejoinder reliance r 16 08 fcr view foundation contention wrong best attended considerable doubt fkp say leave required consent leave granted paragraph 3 proposed rejoinder hearing relation pleading confined latter issue namely irrespective whether leave required whether spirit allowed rely proposed rejoinder including para 3 party took approach correctly view within court power control process interest efficient management case issue resolved basis pleading notionally filed rather subject post filing motion strike summary dismissal 3 spirit application provision additional 1 200 000 security cost fkp opposition basis significantly excess amount security spirit entitled one constant time filing notice motion december 2010 came hearing end september last fkp dispute principle spirit entitlement security cost proceeding fkp party incorporated resident outside jurisdiction suggestion asset jurisdiction issue amount security awarded fkp offered pay additional amount 300 000 added 625 000 previously provided fkp together interest 121 000 exercised sum would bring total security 1 046 000 substantial sum matter yet included preparation affidavit evidence pleadingsparagraph 3 proposed rejoinder read 3 rejoinder paragraph 7a 7a c reply cross respondent spirit say presidium decision force ought recognised australia reason valid defence recognition australia judgment pleaded particularised paragraph b f b presidium decision constitutes violation rule natural justice procedural fairness common law australia reason pleaded paragraph c f c reason pleaded paragraph f presidium supreme court arbitration tribunal impartial alternative tribunal appear impartial reason pleaded paragraph f presidium give oao plodovaya kampaniya formerly vao spi oao fair opportunity heard relation ground decided case e reason pleaded paragraph f procedure pursuant decision issued constituted breach substantial justice f cross respondent relies following matter presidium decision issued result procedure prosecutorial protest supervision initiated deputy prosecutor general also known deputy procurator general hereafter referred deputy prosecutor general ii procedure prosecutorial protest supervision proceeding available deputy prosecutor general party decision protested unavailable private litigant oao iii deputy prosecutor general participated proceeding party proceeding public official oao right participate proceeding equally deputy prosecutor general iv presidium purported decide case ground transformation sojuzplodoimport vao spi invalid privatisation legislation russian soviet federal socialist republic rsfsr namely article 4 rsfsr law dated 3 july 1991 privatisation state municipal enterprise circumstance ground alleged deputy prosecutor general proceeding b protest 12 june 2001 filed presidium deputy prosecutor general expressly stated allege connection transformation sojuzplodoimport vao spi violation privatisation procedure law rsfsr c ground subject argument presidium ground put oao presidium matter issue prior judgment delivered e oao given opportunity make submission contradiction ground v oao argued presidium applicable law relation transformation sojuzplodoimport vao spi law ussr regulating transformation state enterprise private company b law rsfsr applicable issue presidium reason judgment failed address argument despite fact purported apply law rsfsr vi presidium purported decide case basis finding event meeting held 5 september 1991 constituted foundation agreement establishment vao spi circumstance matter alleged deputy prosecutor general proceeding b matter subject argument presidium c matter put oao presidium matter issue prior judgment delivered oao given opportunity make submission contradiction finding e oao given opportunity oao would submitted fact contract create vao spi concluded 19 december 2000 vii upon acting president vladmir putin coming power january 2000 executive government russian federation undertaken definite conscious decision renationalising certain valuable key industry asset without payment compensation including recovery trade mark subject present proceeding decision implemented mean including issue directive dated 13 march 2000 signed mr putin viii protest dated 13 june 2001 filed presidium deputy prosecutor general referred directive signed mr putin dated 13 march 2000 basis seeking invalidation clause article association oao recording successor vao spi ix least since event described paragraph vii presidium impartial accustomed act accordance wish executive government russian federation alternative presidium appeared impartial appeared act accordance wish executive government russian federation x presidium aware policy executive government russian federation referred paragraph vii made decision give effect wish executive government russian federation known rather based merit case alternative appeared xi presidium decision given notwithstanding incorrectly applied law rsfsr relation privatisation state owned enterprise instead law ussr relation succession vao spi right sojuzplodoimport b applied ten year limitation period instead six month limitation period applied cause action outlined protest three year limitation applied cause action purportedly formed basis presidium decision c applied limitation period based error fact agreement amongst founder vao spi agreed signed meeting founder 19 december 1990 5 september 1991 constitutive conference founder prospective shareholder purportedly found presidium violated article 8 russianconstitutionand article 35 russian federationconstitution e violated protocol 1 article european convention human right force russian law pursuant article 15 4 russian federationconstitution f violated oao due process right article 19 1 46 1 article 123 3 russianconstitution g reason one matter pleaded paragraph f recognition decision presidium decision australia would contrary public policy australia background material 5 8 summary presidium decision european court human right echr decision 9 14 largely taken fkp outline submission common ground dispute backgroundas fkp argued submission separate question preclusive effect presidium decision based issue estoppel abuse process judgment rem pleaded detail proposed reply issue estoppel para 7a abuse process para 7b judgment rem para 7c case pleading concludes allegation preclusive effect presidium decision term reflected separate question para 7a 7b 7c c proposed reply proposed reply also update pleading relation vao spi application echr respect presidium decision time last pleading application pending however dismissed decision dated 7 june 2007 application referral grand chamber rejected 12 november 2007 pleaded para 4 g proposed reply paragraph 3 proposed rejoinder pleads presidium decision force ought recognised australia reason four defence identified paragraph 3 b e denial natural justice procedural fairness opportunity heard lack impartiality breach substantial justice paragraph 3 f supply entirety particular upon spirit relies support defence fkp dispute four defence recognised australian law valid answer three base relied upon preclusive effect presidium decision echr decision namely issue estoppel judgment rem abuse process however present purpose fkp advance argument reason identified fkp submitted pleaded case relied upon spirit sufficient reasonable prospect success event presidium echr decisionsit dispute presidium court highest instance russia manner proceeding came presidium well summarised echr decision dated 7 june 2007 reproduced 2010 fca 1293 11 short 21 december 2000 commercial court moscow court first instance declared provision vao spi charter respect succession null void held vao spi legal ground claim succession fgup set new company converted existing one indeed sojuzplodoimport far transformed vao spi founding member court said 17 follows case vao sojuzplodoimport established several legal entity entering foundation agreement foundation conference vao sojuzplodoimport dated 05 09 91 minute 1 vvo sojuzplodoimport one founder 19 establishment enterprise entering foundation agreement excludes foundation reorganising enterprise two different way setting enterprise 20 new legal entity vao sojuzplodoimport could legal successor vvo sojuzplodoimport statement defendant charter legal succession unlawful b 19 february 2001 appellate board commercial court moscow considered appeal without entering merit quashed first instance judgment ground prosecutor office standing bring proceeding see echr decision 7 10 c 16 october 2001 presidium supreme commercial court russia examined case supervisory review proceeding presidium held prosecutor office entitled law commence proceeding commercial court defending state public interest involved 11 found proceeding issue concerned state property provided sufficient ground prosecutor intervene merit case presidium upheld finding vao spi entitled claim succession vao spi created new entity result reorganisation existing legal person 18 19 presidium said according foundation document vao sojuzplodoimport established several corporate founder inclusive state enterprise vvo sojuzplodoimport vvo sojuzplodoimport established result foundation transformation right first instance court conclusion invalidity provision company charter pursuant legal successor vvo sojuzplodimport three aspect decision said critical present purpose first one issue presidium specifically concerned standing prosecutor take proceeding point appeal court decided favour oao plodovaya kompaniya oao presidium overturned ruling secondly merit succession question presidium upheld decision first instance court bias allegation made respect first instance court proceeding thirdly decision first instance court question upheld presidium vao spi formed transformation also referred privatisation reorganisation conversion fgup rather formation new company deputy prosecutor general protest oao objection thereto confirm apparent face decision namely oao raised argued matter interest included factual matter said support alleged transformation allegation ussr law applied matter relating deputy prosecutor general standing statutory time limit noted para 3 proposed rejoinder particular sub para f iv v vi appear overlook application subsequently made echr respect presidium decision vao spi alleged decision breached art 1 protocol 1 art 6 l art 13 14 combination art 6 1 european convention human right provision set 22 31 echr decision follows art 1 protocol 1 protection property every natural legal person entitled peaceful enjoyment possession one shall deprived possession except public interest subject condition provided law general principle international law preceding provision shall however way impair right state enforce law deems necessary control use property accordance general interest secure payment tax contribution penalty art 6 right fair hearing determination civil right obligation everyone entitled fair hearing tribunal art 13 right effective remedy everyone whose right freedom set forth convention violated shall effective remedy rational authority notwithstanding violation committed person acting official capacityart 14 prohibition discrimination enjoyment right freedom set forth convention shall secured without discrimination ground sex race colour language religion political opinion national social origin association national minority property birth status alleged breach art 6 recorded court follows 30 applicant company complained article 6 1 convention article 13 14 conjunction article 6 1 final decision appellate board commercial court moscow 19 february 2001 quashed way supervisory review violation principle legal certainty also complained proceeding presidium supreme commercial court russian federation conducted violation principle equality arm state party proceeding exercised extraordinary power institute supervisory review whilst applicant company possibility finally complained summoned take part proceeding court found violation provision occurred 35 37 allegation bias whether actual apparent recorded fkp submissionsfkp made following submission legal basis defence identified para 3 proposed rejoinder 25 paragraph 3 b e proposed rejoinder appear raise different specie procedural unfairness para 3 c raise question impartiality appearance impartiality reason would influence australian court deciding apply doctrine issue estoppel abuse process judgment rem decision foreign court 26 fkp submits australian law represent defence doctrine however present purpose necessary examine competing contention regard 27 minority decision full court 2011 fcafc 69 rares j identified competing argument 50 54 high point case favour spirit argument might said summarised honour 50 inboele 2002 nswca 363at 24 giles ja handley beazley jja agreed approved statement earlier edition appears davy bell brereton nygh conflict law australia 8thed butterworths 2010 40 79 requirement natural justice procedure foreign court context first party must opportunity presenting case impartial tribunal secondly party must given due notice proceeding 28 context allegation absence impartiality bias formerly characterised submission made court noted allegation actual apprehended bias serious matter must distinctly made clearly proved minister immigration multicultural affair v jia legeng 2001 205 clr 507at 69 must pleaded particularity edward v santos limited 3 2011 fca 886at 46 29 rationale rule set inramadan v new south wale insurance ministerial corp unreported new south wale court appeal kirby p cole ja rolfe aja 7 april 1995 kirby p stated 4 allegation actual apprehended bias made court proceeding recorded timely fashion trial alleged appropriate particularity subsequent proceeding notice appeal rule derives modern principle pleading rest also upon respect judicial office recognition serious light matter party legal representative allege bias judge claimed must done quickly particularity 30 allegation actual apprehended bias absence impartiality made court foreign sovereign nation fortiorithe obligation pleading giving proper particular applicable invoth v manildra flour millspty ltd 1990 hca 55 1990 171 clr 538at 559 high court mason cj deane dawson gaudron jj said powerful policy consideration militate australian court sitting judgment upon ability willingness court another country accord justice plaintiff particular case policy consideration dissimilar lie behind principle judicial restraint abstention ordinarily precludes court country passing upon provision public order another state 31 principle abstention referred described high court inattorney general united kingdom v heinemann publisher australia pty ltd 1988 hca 25 1988 165 clr 30at 40 41 follows citation omitted statement fuller cj inunderhill v hernandezthat court one country sit judgment act government another done within territory repeated approval house lord butte gas v hammer supreme court united state banco nacional de cuba v sabbatino principle rest partly international comity expediency inoetjen v central leather cothe supreme court said permit validity act one sovereign state examined perhaps condemned court another would certainly imperil amicable relation government vex peace nation lord wilberforce observed inbuttes gas v hammer context considering united state decision principle one judicial restraint abstention inherent nature judicial process 32 principle abstention applied court consideration conduct athens court appeal inmokbel v attorney general commonwealth 2007 fca 1536 2007 162 fcr 278at 59 case applicant sought writ prohibition extradition greece footing certain email greek ministry justice deputy prosecutor athens court appeal gave rise bad faith improper purpose breach natural justice justice gordon referred passage fromheinemannset said 58 59 f australian court comment intervene manner greek ministry justice official dealt first email matter athens court appeal conducted request hearing would run directly counter fundamental principle public international law court one country sit judgment act government another done within territory principle non adjudication consistent international rule comity refers respect courtesy accorded country law institution another 33 light principle spirit proposition australian court would refuse recognise decision foreign court basis matter identified para 3 b e proposed rejoinder doubtful extreme principle point seriousness impugning sovereign judicial act accordingly highlight allegation actual apprehended bias case made cogently pleaded clarity specificity reason particular given inadequatepara 3 f ii oao right prosecutorial protest 34 ground alleges prosecutor initiated presidium proceeding way prosecutorial protest oao private litigant right demurrable pleading allegation prosecutor protest presidium made accordance russian law allegation contravenes european convention human right could allegation made rejected echr decision allegation circumstance might said breach australian rule natural justice might arise rule para 3 f iii oao right participate proceeding equally deputy prosecutor general 35 ground alleges vao spi right participate proceeding equally deputy prosecutor general pleading conclusion entirely devoid material fact allegation substantive respect vao spi right participate proceeding equal deputy prosecutor general para 3 f iv decision basis transformation invalid rsfsr privatisation law 36 particular asserts presidium purported decide case ground transformation sojuzplodoimport vao spi invalid privatisation law rsfsr circumstance ground alleged deputy prosecutor general protest filed presidium allege violation privatisation procedure law rsfsr ground subject argument presidium ground put oao matter issue judgment oao given opportunity make submission contradiction ground 37 allegation entirely untenable following reason 38 first relevant finding presidium vao spi formed transformation sojuzplodoimport rather formed new entity indeed sojuzplodoimport one founder said 18 19 according foundation document vao sojuzplodoimport established several corporate founder inclusive state enterprise vvo sojuzplodoimport vao sojuzplodoimport established result foundation transformation right first instance court conclusion invalidity provision company charter 39 secondly finding mirrored decision first instance court indeed set passage quoted presidium expressly upheld decision first instance court said 17 19 20 follows case vao sojuzplodoimport established several legal entity entering foundation agreement foundation conference vao sojuzplodoimport dated 05 09 91 minute 1 vvo sojuzplodoimport one founder establishment enterprise entering foundation agreement excludes foundation reorganising enterprise two different way setting enterprise new legal entity vao sojuzplodoimport could legal successor vvo sojuzplodoimport statement defendant charter legal succession unlawful 40 thirdly far ground disclaimed deputy prosecutor general position repeated deputy prosecutor general protest presidium said court appeal misrepresented argument general prosecutor office stating decree representative general prosecutor office russia referred violation privatization law reorganization vvo sojuzplodoimport deputy prosecutor general brought action plodovaya kompaniya jsc start company formerly vao sojuzplodoimport basing exactly fact reorganized 41 fourthly position reflected deputy prosecutor general statement claim first instance proceeding 42 fifthly particular 3 f v face asserts oao argued presidium applicable law law ussr law rsfsr wholly inconsistent pleading oao denied opportunity argue position correct law applied 43 sixthly fact oao opportunity argue converse presidium finding vao spi formed new entity rather transformation sojuzplodoimport borne face written submission first instance court appeal court presidium 44 thus ground presidium decided succession point vao spi formed transformation fgup rather formed new entity ground time alleged never disclaimed deputy prosecutor general oao every opportunity make submission contradiction ground follows para 3 f iv untenable para 3 f v choice law 45 paragraph asserted oao argued presidium applicable law law ussr law rsfsr applicable judgment presidium failed address argument 46 particular appears attack correctness decision presidium say court made error disputed error involve breach natural justice pleading concedes vao spi given opportunity submit soviet law applied 47 precisely purpose issue estoppel related doctrine party permitted reargue question decided first court 48 inadams v cape industry plc 1990 ch 433 court appeal said 569 well established defendant shown subject jurisdiction foreign court cannot seek persuade court examine correctness judgment whether fact application foreign court law relevant law country foreign judgment impeachable merely manifestly wrong 49 guise breach natural justice spirit wish take impermissible approach kind para 3 f vi decision basis 5 september 1991 meeting 50 particular alleges presidium purported decide case basis finding event meeting held 5 september 1991 constituted foundation agreement establishment vao spi circumstance prosecutor make allegation put oao presidium matter dispute oao given opportunity contradict given opportunity would argued contract create vao spi concluded 19 december 2000 sic 51 ground also untenable 52 first first instance court found event meeting held 5 september 1991 constituted foundation agreement establishment vao spi indeed basis vao spi charter filed moscow registration chamber said 17 follows case vao sojuzplodoimport established several legal entity entering foundation agreement foundation conference vao sojuzplodoimport dated 05 09 91 minute 1 vvo sojuzplodoimport one founder circumstance reflected first version vao sojuzplodoimport charter fled moscow registration chamber 20 01 92 53 suggested oao given opportunity make submission point first instance court 54 secondly fact appears face submission oao instance oao never stage submitted contract create vao spi concluded 19 december 2000 sic 19 december year contrary oao consistently relied upon foundation agreement 5 september 1991 55 thirdly pleading presidium decision said made basis finding respect 5 september 1991 meeting particular pleading part decision said turn upon date para 3 f vii x actual apparent bias reason directive president putin 56 allegation made paragraph serious impugn impartiality court another sovereign nation accusation actual apprehended bias levelled court highest instance russian federation requires clear specific detailed pleading allowed proceed 57 pleading para vii x come nowhere near requisite standard 58 para vii alleges part executive government russian federation definite conscious decision renationalising certain valuable key industry asset without payment compensation 59 para ix pleads presidium impartial accustomed act accordance wish executive government russian federation appeared 60 para x pleads presidium decide proceeding based merit case rather wish executive government russian federation known appeared 61 extraordinary allegation specific matter pleaded support directive president putin dated 13 march 2000 term document follows ask take urgent measure reinstate protect state right intellectual property area production circulation vodka product identify bring legal action person involved infringement right report result monthly basis 62 term document president issue governmental directive recover state intellectual property right entirely unexceptional certainly said directive issued presidium court make direction appropriate property person rather bring legal action indeed specific allegation made spirit deputy prosecutor general referred protest might also observed directive predated appeal instance judgment favour oao spirit make allegation actual apprehended bias relation judgment 63 face presidium decision document form basis decision rather court decided appeal basis prosecutor right article 41part iof code arbitration procedure russian federation see particular 11 64 thus specific matter pleaded support bias allegation governmental directive president certainly document addressed court appropriate foundation allegation actual apprehended bias circumstance para 3 f xi decision incorrect 65 ground pleads presidium decision given notwithstanding contained error various kind set 46 49 paragraph relation ground para 3 f v effect foreign judgment cannot resisted alleging made error disputed error precisely purpose issue estoppel related doctrine party permitted agitate question decided first court 66 particularly conspicuous sub para e alleges presidium decision violated protocol l article european convention human right proposition exactly rejected echr decision application referral grand chamber rejected apart question issue estoppel evident reason court would come different view accordingly additional reason proposition reasonable prospect success fkp conclusion 67 light extent para 3 proposed rejoinder state material fact spirit relies fact inadequate justify conclusion disclose reasonable defence extent disclose matter relied upon embarrassing evasive fcr r 16 02 leave file rejoinder proposed form refused spirit submissionsspirits made following submission response 24 26 33 submission fkp refers number authority say light case spirit proposition australian court would refuse recognise decision foreign court doubtful extreme case fkp refers form part complex evolving body law relation issue international comity illustrate developing nature law area see recent privy council decisionak investment cjsc v kyrgyz mobil tel limited or 2011 ukpc 7at 96 102 australian case relied upon fkp discussed 25 case referred fkp submission may well relevant court consideration defence raised para 3 proposed rejoinder plainly insufficient justify order strike paragraph 26 similarly issue arise para 3 proposed rejoinder relating recognition foreign judgment issue arise infrequently australian court relation law still developing factor would clear reason refuse application strike remark made tamberlin j inhicks v ruddock 2007 156 fcr 574 93 entirely apposite present case modern law relation meaning justiciable extent court examine executive action area foreign relation act state far settled black letter law likewise relation element reach habeas corpus writ regarding control unlawfulness authority far settled clear law developed greatly bright line foreclose pleading stage argument sought advanced present case 27 event legal basis pleading para 3 proposed rejoinder sound threshold issue issue estoppel arise foreign decision said found estoppel must capable recognised australian court authority proposition australian court may refuse recognise foreign judgment breach natural justice occurred foreign jurisdiction recognition judgment contrary australian public policy contrary suggestion previously made fkp availability argument affected distinction recognition judgment purpose giving effect issue estoppel orres judicata recognition foreign judgment purpose enforcing full court rares j described distinction sought drawn fkp curious distinction 2011 fcafc 69at 51 particular given spirit general matter 28 basis allegation para 3 clearly particularised sub para 3 c 3 f proposed rejoinder proposed rejoinder defines issue sufficient clarity fkp understands opportunity meet allegation set therein proposed rejoinder complies relevant rule pleading 29 seeking argue inadequacy particular para 3 proposed rejoinder 36 66 submission fkp address particular individually seek assert particular standing alone determinative several general point may made 30 first particular considered severally considered totality supporting matter alleged sub para 3 b 3 e proposed rejoinder 31 secondly extent fkp dispute certain allegation fact reliance affidavit nicole hinks served spirit three month late shortly hearing motion spirit objected admissibility evidence motion 32 thirdly extent fkp submission m hinks affidavit indicate dispute fact pleaded spirit paragraph 3 proposed rejoinder existence dispute serf highlight paragraph 3 susceptible strike pursuant r 16 21 fcr injianshe southern pty ltd v turnbull cooktown pty ltd 2007 fca 489at 10 besanko j held clear authority summary judgment granted either 20 r 1 31a real dispute party issue fact similar view expressed case involving application strike pleading 33 fourthly matter fact pleaded para 3 proposed rejoinder subject lay expert evidence due course require spirit meet particular allegation raised fkp submission whether context pleading dispute context subsequent application strike pursuant r 16 21 fcr would spirit submission frustrate entirely overarching principle civil practice procedure set in 37mof thefederal court australia act 1976 cth fca 34 fifthly may pointed early stage sense factual allegation set para 3 proposed rejoinder far fetched way fanciful finding judicial bias political interference russian court case interest russian state involved made court similar tradition court including following deripaska v cherney 2009 ewca 849at 39 44 66 67 b government russian federation v yuri victorovich shefler city westminster magistrate court 8 june 2010 unreported 26 35 c film jove v joseph beroz 341 f supp 2d 199 2004 212 35 may noted mr shefler defendant case referred b feature para 59a fkp draft amended cross claim 36 sixthly fkp seek make way submission without evidence assertion russian law soviet law european law seems allege justify strike spirit pleading court cannot decide contested issue russian law soviet law european law absence expert evidence topic seeregie nationale de usines renault sa v zhang 2002 hca 10 2002 210 clr 491at 71 37 finally issue arising para 3 proposed rejoinder resolved following consideration competing expert evidence anticipated legal linguistic expertise invoked including respect translation meaning term used document placed russian court also russian court decision significance evidence render issue completely inapt determination strike basis particular given spirit specific mattersparas 3 f iii 38 24 fkp submission fkp repeat familiar refrain effect echr found right prosecutorial protest contravene article 6 european convention human right reference made topic 34 fkp submission fkp constantly make assertion though somehow mean european court justice found right prosecutorial protest consistent fair hearing fact echr made finding rather importantly court need decide whether right prosecutorial protest consistent fair hearing court found circumstance case civil right issue proceeding attracted protection article 6 39 plainly australian law natural justice including australian law appearance impartiality opportunity heard depend whether civil right within meaning article 6 echr issue russian proceeding accordingly view european law determinative notable case civil right issue proceeding positively held right prosecutorial protest contravene right fair hearing seeryabykh52854 99 2003 echr 396 volkova v russia48758 99 2005 echr 214 sovtransavto holding v ukraine4855 99 2002 echr 626 brumarescu v romania28342 95 1999 echr 105 40 extent footnote 34 fkp submission seek suggest oao right deputy prosecutor general incorrect evidence trial demonstrate deputy prosecutor general party proceeding capacity litigant public official b deputy prosecutor general absolute right use public power make protest aid interest litigant instant case c oao rightto requestthe deputy prosecutor general make protest therefore clear inequality court paragraph 3 f iv 41 paragraph 36 41 fkp submission incorrect matter fact evidence trial demonstrate following protest filed deputy prosecutor general presidium contained argument issue invalidity vvo vao transformation effect vvo transformed vao vao incorporated anew number entity including vvo b whilst argument one base presidium decided case presidium decided case basis breach rsfsr privatisation law namely article 4 rsfsr law privatisation state municipal enterprise 42 argument b raised deputy prosecutor general protest fkp submission thus seek elide distinction two distinct ground argument 43 paragraph 42 fkp submission alleges particular 3 f v face alleges oao argued presidium applicable law law ussr law rsfsr whilst oao indeed argue presidium law ussr applied never put oao argued deputy prosecutor general contrary oao submission law rsfsr applied article 4 rsfsr law effect invalidating transformation vvo vao denial natural justice alleged particular 3 f iv 44 evidence trial demonstrate following despite oao argued first instance court applicable law law ussr first instance court discus issue applicable law vvo vao transformation process first instance court also refer legal provision supporting conclusion vvo transformed vao b oao argued applicable law law ussr appellate court appellate court also address issue applicable law c submission filed presidium oao argued applicable law law ussr submitted law rsfsr apply without giving reason rejecting oao argument finding law rsfsr applied presidium applied rsfsr law considering transformation vvo vao transformation vvo vao conformity ussr law provided transformation procedure different applied law rsfsr paragraph 3 f v paragraph 3 f xi 45 paragraph 45 49 65 fkp submission make error assuming issue estoppel applies stage natural justice argument point natural justice argument australian court would refuse recognise russian judgment denial natural justice hence issue estoppel arising whilst one cannot challenge correctness decision issue estoppel found apply say nothing ground relied upon support allegation denial natural justice anterior question whether australian court recognise russian judgment purpose issue estoppel 46 soundly accordance australian principle natural justice court look outcome decision one matter may held support contention finding affected apparent bias seenadh 2001 or v minister immigration multicultural indigenous affair 2004 fcafc 328 2005 214 alr 264at 12 per allsop j moore tamberlin jj agreed decision high court inconcrete pty ltd v parramatta design development pty ltd 2006 hca 55 2006 229 clr 577at 179 case involving consideration allegation apparent bias callinan j held respondent correct submitting full court holding right determining issue look course trial also reason judgment read together see whether cumulative effect one apparent bias 47 accordingly fkp submission 45 49 65 wholly misconceived para 3 f vi 48 relation 50 55 fkp submission fact first instance court decided case particular way cannot determinative whether oao afforded natural justice presidium level proceeding question whether first instance court affected bias irrelevant decision first instance court event corrected decision intermediate appellate court 49 paragraph 54 alleges matter fact content oao submission matter decided trial reference 19 december 2000 para 3 f vi e rejoinder reference 19 december 1990 corrected spirit evidence trial include following sentence judgment first instance court refers conference 5 september 1991 simply mean vao established number legal entity including vvo additionally constitutive conference held 5 september 1991 b constitutive conference held 5 september 1991 undoubtedly one step vvo vao transformation ussr law party proceeding level ever alleged agreement establish vao concluded 5 september 1991 c true position signing agreement establish vao concluded 19 december 1990 however oao need make submission irrelevant purpose challenging erroneous first instance court conclusion vao established number legal entity including vvo party ever alleged contrary presidium made finding agreement establish vao concluded 5 september 1991 turn led central finding adverse oao namely claim oao barred 10 year limitation period e applicability 10 year limitation period never alleged party stage proceeding mentioned presidium prior delivery judgment oao could reasonably anticipate issue would central basis presidium decision f noted para 3 f vi e proposed rejoinder oao given notice presidium considering argument agreement establish vao concluded 5 september 1991 claim oao therefore statute barred oao would made submission agreement establish vao concluded 19 december 1990 50 respect court consideration applicable limitation period spirit evidence trial include following proceeding first instance court appellate court presidium oao argued limitation period 3 year alternatively 6 month applied b presidium found 10 year limitation period applied prosecutor claim therefore statute barred c neither first instance court appellate court found 10 year limitation period applied deputy prosecutor general submit 10 year limitation period applied e presidium applied 3 year alternatively 6 month limitation period contended oao presidium outcome case would likely oao favour 51 explanation set address complaint 55 fkp submission stated 37 spirit submission expert evidence including linguistic evidence relating meaning translation russian language term likely highly significant court determination issue para 3 f vii x actual apparent bias reason directive president putin 52 spirit case respect bias confined case actual bias spirit submits reasonable apprehension bias arising respect presidium decision would suffice defence recognition australia judgment regard test whether relation presidium decision reasonable apprehension bias mind fair minded lay observer british american tobacco australia service limited v laurie 2011 hca 2 2011 242 clr 283at 52 53 relation issue bias actual apprehended spirit refers authority 34 paragraph inderipaska v cherney 2008 ewhc 1530 comm qbd commercial court clarke j found follows 247 248 make clear amnotdeciding deciding fair trial never obtained russian arbitrazh system contrary doubt many honest good judge system every level conscientiously seek justice according relevant legal principle procedure developing arbitrazh system relate commerce new russia without improper interference however regard significant risk improper government interference mr cherney bring present claim russia would high profile proceeding indeed substantial justice may done required proceed satisfied required justice done 54 appeal clarke j decision dismissed court appeal 2009 ewca 849 waller moore bick ljj sir john chadwick observing ast 64 essential plank appellant argument relation risk prosecution trumped charge risk interference working arbitrazh court reliable evidence government would interested private dispute two individual relatively small shareholding joint stock company whose business unlike oil gas production considered engage strategic interest state accepted evidence case engage russia national interest government liable manipulate judicial process proceeding yukos mr khordorkovsky provide one obvious example submitted confined case national strategic interest stake state seeking nationalise previously privatised asset 55 honour proceeded make following finding 66 three instance government interference judicial process judge relied proceeding relating yukos film jove medium call said justification yukos case involved might described nationalisation strategic asset damaging political opponent also said film jove case concerned right animated cartoon produced soviet era involved tine nationalisation asset formerly owned state though hardly asset strategic nature medium case involved damaging political opponent however open judge view case broadly example government willingness interfere judicial process circumstance considers national interest sufficiently engaged regard economic industrial importance united company rusal link mr deripaska government think ample evidence judge could find risk government interference tine judicial process present action tried russia 56 spirit note unlike fact inderipaska v cherney present case clearly involves situation russian state seek nationalise previously privatised asset namely stolichnaya trade mark accordingly spirit submits concern raised uk divisional court court appeal regarding risk government interference judicial process even greater relevance present case particular spirit claim para 3 proposed rejoinder 57 similar sentiment expressed senior district judge workman inthe government russian federation v yuri victorovich shefler city westminster magistrate court 8 june 2010 unreported 34 professor bowring professor sakwa gave evidence independence judiciary moscow professor given evidence past contrary assertion russian federation response defence evidence extensive knowledge expertise extremely careful see view balanced objective clear misgiving independence judiciary specific well documented 58 spirit submits clear basis pleading bias para 3 proposed rejoinder clearly basis strike aspect pleading spirit conclusion 59 summary spirit submits fkp obtains leave file amended reply spirit entitled indeed required file proposed rejoinder matter raised 8 67 fkp submission irrelevant present motion application court concern filing spirit proposed rejoinder 60 even application leave court matter referred 8 67 fkp submission would plainly insufficient sustain strike application respect para 3 proposed rejoinder dispute various factual matter pleaded para 3 matter undoubtedly ventilated hearing separate question matter appropriately efficiently importantly justly disposed strike level hearing motion rejected fkp application read second affidavit nicole angela hinks sworn 13 september 2011 filed following day filed three month late le two week hearing motion matter aside failed comply number requirement english translation foreign language document exhibited affidavit considerationwhile application spirit court seeking leave file proposed rejoinder argument presented court predicated basis pleading issue indicated 2 2 considerable doubt foundation spirit claim require leave file proposed rejoinder fcr make reference filing rejoinder certainly right spirit given leave file rejoinder rejoinder must comply r 16 08 r 16 08 neither give spirit right file rejoinder relief spirit requirement pleading disclose reasonable prospect success event noted 2 2 party sensibly approached matter basis court power control process court power permit pleading reasonable prospect success go forward whether way refusal leave file strike summary dismissal pleading notionally filed agree fkp submission fkps 25 33 considerable doubt whether defence raised spirit para 3 proposed rejoinder available matter law regard particular applicable principle judicial abstention relation foreign court spirit make submission s 25 availability defence matter decided strike basis much may accepted however fkp ask court resolve issue present application rather emphasis light principle thorough specific pleading matter required particular spirit appears dispute high point case favour argument might said summarised rares j full court 2011 fcafc 69at 50 namely requirement natural justice procedure foreign court context first party must opportunity presenting casebefore impartial tribunal secondly party must given due notice proceeding fkps 27 appear dispute strict requirement pleading bias set fkps 28 29 appropriate regard principle considering adequacy pleading para 3 proposed rejoinder para 3 f iii prosecutor right protestthese ground relate prosecutor right protest pleading concrete matter relating prosecutor right protest give rise actual apparent bias denial opportunity heard spirit submission provide explanation rather inchoate suggestion deputy prosecutor general right protest inequality court s 40 suggestion certainly pleading meant presidium impartial oao given opportunity heard fact clear even proposed rejoinder given opportunity rejoinder para 3 f v para 3 f iv finding breach rsfsr privatisation lawthis ground asserts inter alia presidium purported decide case ground transformation sojuzplodoimport vao spi invalid privatization legislation rsfsr fkp pointed fkps 38 presidium decided vao spi formed new entity sojuzplodoimport one founder foundation transformation mutually exclusive transformation occur reflected first instance court ruling critically contrary proposed rejoinder spirit accepts stating argument one base presidium decided case s 41 b thus suggestion could oao given opportunity meet argument rather spirit submission reduced proposition additional obiter observation made presidium namely particular requirement transformation process occur put cannot event sufficient support case alleged bias denial procedural fairness para 3 f v para 3 f xi decision incorrectthese paragraph assert presidium decision incorrect various respect fkp submitted fkps 46 47 answer issue estoppel assert decision wrong precisely exercise issue estoppel precludes allegation court failed respond party argument allegation party denied opportunity present argument constitute allegation breach natural justice kiefel j said inha bachrach pty ltd v minister housing 1994 85 lgera 134at 140 natural justice applied correct gap procedure might enable party heard may may effect upon ultimate decision whether decision maker obliged regard matter raised different question determined reference different criterion spirit called aid following comment callinan j inconcrete v parramatta designat 179 respondent correct submitting full court holding right determining issue look course trial also reason judgment read together see whether cumulative effect one apparent bias however light observation consistently withbachrach plainly sufficient assert bias pleading party made particular submission trial court decision contrary submission must something alleged respect course trial read judgment produce cumulative effect bias neither paragraph identifies thing para 3 f vi 5 september 1991 meetingthis ground alleges inter alia presidium purported decide case basis finding event meeting held 5 september 1991 constituted foundation agreement establishment vao spi fkp submitted pleading identify part decision said turn alleged finding submission spirit state finding led central finding adverse oao namely claim oao barred 10 year limitation period identified pleading wrong face presidium decision presidium decide time started running date foundation agreement 5 september 1991 rather date registration vao spi state 20 january 1992 authorised state agency could known wrong prior date presidium state 24 26 charter vad sojuzplodoimport passed state registration 20 1 92 authorised state agency could known violation right prior date claim declaring invalid charter provision legal succession based agreement 05 09 91 ineffective respect could filed court within time limit established article 181 paragraph 1 civil code russian federation ie within 10 year limitation period starting 20 01 92 view ground remains untenable para 3 f vii x actual apparent bias reason directive president putinthis ground relates pleading actual apparent bias reason governmental directive president putin dated 13 march 2000 fkp observed allegation bias serious matter requiring particularly thorough precise pleading submission made support ground confirm fact support instead setting matter relating presidium proceeding spirit nothing refer three case concern expressed foreign court prospect individual would receive fair trial certain russian court provides basis suggestion presidium proceeding event happened 2001 involved bias indeed extent concern expressed case russian arbitrazh court salutary recall precisely appellate board moscow arbitrazh court found oao favour present proceeding spirit make allegation court biased none decision referred suggest anything proceeding presidium court highest instance russia clear view spirit proper basis serious allegation make ground conclusionfor reason spirit require leave court file proposed rejoinder disposed view would refuse leave file present form specifically including para 3 leave required would favourably disposed accede strike motion defence pleaded para 3 b e inclusive continue supported confined matter raised para 3 f security costsspirits seek order security 1 200 000 sum take account security already provided fkp prior stay proceeding 2008 based said conservative estimate spirit cost 2 december 2005 including hearing separate question spirit calculation said made taking account usual principle applied taxation legal fee support motion spirit relies upon affidavit mr john swinson sworn 23 december 2010 swinson dec 2010 28 february 2011 swinson indicated 2 3 fkp dispute principle spirit entitlement security cost proceeding issue amount security awarded background set 42 45 taken spirit outline submission common ground dispute backgroundat commencement proceeding 2004 agreed party appropriate adopt tranche based approach provision security given complexity issue proceeding likely duration fkp previously consented provision four tranche security totalling approximately 625 000 excluding interest swinson 10 24 exception sum 25 000 paid expressly security spirit cost fkp motion determination separate question january 2010 swinson 24 exhibit j 5 p 34 recent tranche security provided fkp october 2006 outset discovery process issue security raised spirit early 2008 22 april 2008 court made order consent directing spirit file motion security order vacated 27 june 2008 allow party discus possible settlement proceeding proceeding stood 10 july 2008 december 2009 settlement discussion take place 16 december 2009 party informed court unable resolve matter issue security raised swinson exhibit j 5 pp 27 35 direction hearing 16 december 2009 fkp also informed court intent pursue motion determination separate question filed february 2008 swinson exhibit j 5 p 26 january 2010 party agreed interim arrangement relation security accordance fkp would provide 25 000 expressly security spirit cost motion determination separate question swinson exhibit j 5 pp 38 47 judgment fkp motion delivered 26 november 2010 15 december 2010 spirit solicitor wrote fkp solicitor requesting provision security respect spirit cost including hearing separate question swinson dec 2010 p 53 23 december 2010 spirit filed present motion spirit submissionsin written outline submission spirit advance case following way general principlessection 56 fca invests court broad power award security cost well increase amount security previously ordered principle govern exercise power well established equity access ltd v westpac banking corporation 1989 atpr 40 972 kp cable investment pty ltd v meltglow pty ltd 1995 fca 76 1995 56 fcr 189at 197 8 chapman v luminis pty ltd 2002 fca 496at 13 croker v sydney institute tafe nsw 2003 fca 942 power described essentially one risk management party regard legitimate interest applicant respondent east grace corporation v xing 1 2005 fca 219at 6 present case noted cross claimant party incorporated resident outside jurisdiction proceeding cross claimant elected pursue australia highly complex consequently continue protracted costly event cross claimant unsuccessful proceeding cost award made favour spirit substantial follows regard authority spirit must appropriately adequately protected respect practical ability enforce cost order may made favour relation assessment quantum application security cost emmett j observed insave ridge inc v commonwealth australia 2004 fca 1289at 24 assessing quantum order cost broad brush approach need taken would counter productive much tune spent requiring detailed proof likely cost hypothetical taxation bill advance say security ordered without proper evidence necessary court evidence experienced practitioner cost likely incurred amount cost likely allowed taxation clear security may ordered respect future cost also respect cost already incurred proceeding bryan e fencott associate pty ltd v eretta pty ltd 1987 fca 102 1987 16 fcr 497per french j 515 australian equity investor v collier international nsw pty ltd 2 2010 fca 1209 readymix holding international pte ltd v wieland process equipment pty ltd 2008 fca 373 nv sumatra tobacco trading co v british american tobacco australia service limited 2010 fca 1372 2010 89 ipr 357 fortioriwhere repeated reservation spirit right seek amount way security example swinson ex j 5 pp 14 45 support motion security spirit relies swinson dec 2010 swinson mr swinson experience legal practitioner specialising intellectual property litigation set 5 9 swinson mr swinson carriage proceeding behalf spirit since commencement 2004 amount spirit presently seek security cost arrived mr swinson basis close involvement present proceeding since commencement 2004 knowledge issue arise proceeding review billing record fourteen year experience litigation lawyer conducting large medium scale litigation involving complex legal factual issue including advising likely cost proceeding likely cost recovery figure take account security already provided fkp proceeding date spirit present application security made taking account cost incurred proceeding 1 december 2005 date likely incurred period including hearing separate question spirit maintains given complexity proceeding tranche based approach remains appropriate course cost respect security presently soughtfrom 2 december 2005 31 january 2011 spirit incurred approximately 1 615 108 cost legal fee disbursement defending proceeding respect fkp cross claim e present proceeding swinson para52 ex j 6 1 december 2005 court ordered fkp provide second tranche security swinson 13 legal fee incurred spirit date relation cross claim totalled approximately 703 700 excluding disbursement spirit accepts initial two tranche security provided fkp totalling 400 000 constituted adequate security spirit cost relation cross claim l december 2005 swinson 14 spirit seek agitate matter accordingly spirit present application seek security respect cost incurred prior 1 december 2005 summary legal fee incurred spirit relation cross claim period fee incurred set swinson exhibit j 6 exhibit j 6 include amount incurred spirit disbursement process calculation spirit cost 2 december 2005 31 january 2011 undertaken set swinson 28 51 relevantly figure excludes following cost incurred spirit respect proceeding diageo australia limited settled swinson 30 b cost incurred spirit respect full court appeal application special leave appeal high court relation issue discovery russian federation swinson 34 c cost incurred spirit 15 january 2010 9 august 2010 incurred primarily exclusively respect fkp motion determination separate question relation fkp provided consent spirit discrete security 25 000 swinson 25 cost incurred spirit respect proceeding third party involving trade mark subject proceeding e trade mark infringement proceeding trade mark opposition swinson 35 e cost incurred spirit respect judicial review proceeding brought trade mark registrar federal court proceeding nsd 1261 2001 resolved swinson 37 f cost incurred spirit proceeding since 31 january 2011 including cost motion swinson 28 43 52 spirit submits significant cost incurred proceeding date readily understood context complex matter fact law arise cross claim spirit defence cross claim swinson 42 45 mr swinson summarises work undertaken relation cross claim significant disbursement incurred particular discovery process identified swinson 50 swinson 53 58 exhibit j 7 mr swinson set future work likely carried including hearing separate question estimate spirit likely incur least 584 284 cost legal fee disbursement point work referred mr swinson includes 1 review fkp evidence 2 preparation evidence including expert evidence 3 research submission 4 briefing counsel 5 preparation attendance hearing based assumption six day hearing evident pleading issue raised conduct proceeding date proceeding particularly separate question involve high degree factual legal complexity require court regard australian law also principle foreign international law expert evidence required issue foreign law arise separate question spirit submitted estimate future cost fact conservative one mr swinson estimate include cost associated discovery separate question sought spirit accordance para 1 motion estimate calculated basis solicitor counsel hourly rate applied prior 31 january 2011 however spirit accepts context application exclusion limitation consistent broad brush approach taken court calculation appropriate amount security taxationmr swinson say basis experience proportion client actual legal cost recoverable taxation federal court australia range 50 65 actual cost swinson 59 spirit submits appropriate measure adopted calculating quantum security present case spirit submitted measure put forward mr swinson consistent adopted federal court recent large scale case involving application security cost inaustralian equity investor 2 award security amounted 59 respondent estimated solicitor client cost legal fee disbursement trial calculating figure court took account cost incurred proceeding date e past cost solicitor estimate future cost inwainter pty ltd v freehills firm 2 2009 fca 770 barker j ordered applicant provide 220 000 security first second respondent cost point entry trial basis evidence respondent solicitor client cost likely incurred point approximately 437 000 proportion 50 4 spirit submitted measure also consistent taken court considering application payment cost lump sum conclusion proceeding indatadot technology ltd v alpha microtech pty ltd 2003 fca 1449 emmett j awarded figure slightly excess 60 applicant actual cost subsequent patent infringement case ofwilliams advanced material inc v target technology co llc 2004 fca 1405 2004 63 ipr 645 bennett j ordered payment 65 applicant actual cost citingdatadot taking note added complexity proceeding honour m rosati affidavit relied upon fkp applies figure 40 45 cost recoverable 118 124 spirit submitted significant underestimate reason including m rosati fails apply new scale cost set schedule 3 fcr cost incurred 1 august 2011 b m rosati give sufficient allowance novelty complexity proceeding appropriate amount security present caseas indicated mr swinson estimate spirit cost legal fee disbursement 1 december 2005 including hearing separate question 2 199 392 figure comprises 1 615 108 cost incurred 2 december 2005 31 january 2011 excluding cost referred 55 see 53 estimate 584 284 respect future cost incurred 1 february 2011 hearing separate question see 57 adopting broad brush approach applying recovery rate 60 actual cost would amount 1 319 635 recoverable cost spirit submitted appropriate measure security present case taking account 183 000 provided security since 2 december 2005 spirit submitted appropriate award security spirit cost including hearing separate question 1 200 000 payable manner term security previously provided fkp proceeding fkp submissionsin opposing spirit motion provide additional security cost spirit respect cross claim sum 1 200 000 within 14 day making order fkp developed opposition reference following six head submission 1 first spirit already hold security cost amount 746 000 625 000 provided fkp plus 121 000 interest accrued sum affidavit nicole hinks sworn 13 september 2011 hinks 14 16 fkp offered pay 300 000 would bring total security present proceeding 1 046 000 2 secondly whilst fkp accepts isprima facieliable overseas claimant bringing proceeding australia give security cost spirit discharged onus establishing entitlement vast quantum 1 200 000 security seek 3 thirdly spirit seek top security reference past cost 1 615 108 swinson 52 sum 542 000 incurred third tranche security provided fkp october 2006 see ex j 6 swinson fkp required give security amount delay prior agreement party factor tell order security sought 143 000 cost 10 october 2006 28 february 2007 discovery cost 254 000 incurred 1 march 2007 15 january 2010 see ex j 6 cost directly referable agreement accept particular level security 600 000 including completion discovery ex j 5 pp 13 20 delay prior agreement thus also tend exercise court discretion award security cost 4 fourthly recent past cost 127 000 incurred 10 august 2010 31 january 2011 appear incorporate substantial work related spirit unsuccessful appeal full federal court issue separate question spirit ordered full court pay fkp cost appeal entitlement security cost fkp invite spirit reconsider claim 5 fifthly amount security sought past cost excessive whilst spirit free make arrangement see fit representation proceeding fkp required give security fair estimate amount likely ordered pay spirit taxed cost spirit succeed case cost incurred date include work 130 different fee earner 90 000 overseas travel expense discounted significantly regard evidence 45 spirit past cost likely allowed taxation see affidavit kerrie ann rosati sworn 23 june 2011 rosati 6 sixthly amount security sought estimated future cost preparing running separate question also excessive regard manner spirit incurred cost date particular estimate set ex j 8 reason set detail fkp submitted appropriate calculation payment security follows current securityto date four tranche security cost provided fkp set following table hinks 14 shown table amount security presently available spirit approximately 746 000 including 120 000 interest interest taken account spirit calculation amount security required discounted sum awarded per fkp calculation 68 comparison 746 000 security already provided spirit asserts total cost date cross claim vicinity 2 340 000 figure represents sum mr swinson calculation non discovery cost 1 892 744 ii discovery cost 254 937 iii disbursement 244 518 attributable cross claim see swinson 52 plus estimated future cost 584 284 effect depositing additional 1 2m sought spirit would raise security available spirit approximately 1 95m pending determination separate question fkp submitted amount security excessive unfairly prejudicial regard following matter canvassed greater detail 73 113 principle applicable application security cost b nature past cost including spirit previous agreement delay seeking security cost c spirit failure properly quantify claim security likely proportion cost recoverable spirit taxation e cost order fkp favour yet paid spirit security cost principlessection 56 fca provides court may order applicant give security payment cost may awarded security shall amount given time manner form court directs 56 2 onus leading evidence establish entitlement order security amount sought lie spirit idoport pty ltd v national australia bank ltd 2001 nswsc 744at 60 must done evidence characteristic cogency idoportat 62 question whether security cost granted matter entirely within discretion court australian equity investor v collier international nsw pty limited 5 2011 fca 1041at 11 discretion exercised regard circumstance case without predisposition favour award security kp cable investmentsat 196 purpose security give full indemnity respondent see e g brundza v robbie co 2 1952 hca 49 1952 88 clr 171at 175 per fullagar j instead court discretion fix amount think fit circumstance case reinsurance australia corporation ltd v hih casualty general insurance ltd liq 2003 fca 803at 94 amount security exceed likely recoverable party party cost taxation may le allstate life insurance co v australia new zealand banking group ltd 1995 fca 1778 1995 134 alr 187at 200 per lindgren j purpose calculating party party cost scale oldfederal court rule cth rule continues apply past cost incurred 1 august 2011 see r 40 29 fcr future cost incurred l august 2011 taxable scale adopted fcr fcr unreasonable cost unnecessary expense allowable see r 40 30 reason suppose interpreted manner relevantly different necessary proper test 62 r 19 rule longstanding important principle application security cost must brought promptly southern cross exploration v fire nl risk insurance co ltd 1985 1 nswlr 114at 123 kp cable investmentsat 197 principle equal force application top security fencott v erettaat 514 per french j security sought previous cost incurred long period time unlikely award past cost made australian equity investor 5 58 relevant factor include length delay nature act done interim reason szanto v bainton 2011 nswsc 985at 50 southern crossat 125 failure party seeking security supervise monitor continuing exposure risk non recovery cost also relevant discretionary matter nv sumatra tobacco trading companyat 15 per greenwood j principle security must sought promptly remains applicable security previously provided tranche see e g karl suleman enterprizes pty ltd liq v pham 2010 nswsc 886 case consent order made 2005 substantial security provided plaintiff tranche without prejudice defendant right seek security initial estimate proved inaccurate four year later defendant applied additional 1 8 million security including respect significant past cost incurred making consent order application security court schmidt j refused order additional security past cost holding unfair oppressive plaintiff required provide security significant cost already incurred must long apparent defendant original estimate cost would far exceeded 13 b nature past cost vast majority cost spirit seek security past cost totalling 1 615 108 cost question said incurred 2 december 2005 31 january 2011 see 53 fkp submitted security past cost alternatively nominal amount appropriate following reason first spirit previously agreed accept current level security adequate alternatively substantial part past cost security sought letter fkp solicitor dated 11 september 2006 spirit solicitor stated ex j 5 pp 13 14 given progress proceeding extent cost incurred client recent issue arisen clearly appropriate time client post security circumstance consider entirely reasonable request client increase total security cost au 600 000 client accept amount security current estimate cost including completion discovery client expressly reserve right request additional security discovery completed cost increase significantly beyond current estimate completion discovery please confirm 16 september 2006 whether client agree proposal 9 october 2006 fkp accepted spirit proposal agreed deposit third tranche 183 000 raising balance account 600 000 see ex j 5 p 20 fkp submitted spirit held agreement taking account discovery yet completed b adequate explanation given spirit delay seeking security seekarl suleman enterprizesat 52 c matter discretion court would permit spirit come back hat six year later noted current application includes substantial cost incurredbeforespirits agreed october 2006 accept 600 000 appropriate level security including completion discovery secondly spirit present application effect bundling past cost single lump sum covering entire five year period 2 december 2005 31 january 2011 obscures extent delay seeking security significance earlier agreement fact breakdown cost relied upon spirit ex j 6 show 542 409 76 past cost security sought incurred 2 december 2005 9 october 2006 e cost incurred october 2006 agreement reached figure set one side immediately time spirit protect position respect cost course negotiation 2006 fkp matter discretion court would revisit matter five year later particularly explanation given spirit delayed long seeking security cost b 143 856 17 past cost security sought incurred 10 october 2006 28 february 2007 cost incurred four month period immediately following october 2006 agreement must treated governed spirit agreement accept third tranche adequate security cost including completion discovery appropriate time bring application security respect cost also february 2007 spirit failed c 557 250 08 past cost security sought incurred 1 march 2007 15 january 2010 including 254 091 16 recorded document discovery cost document discovery cost proportionate third tranche security 183 000 appear part cost envisaged party governed october 2006 agreement 183 000 72 document discovery cost 254 000 remainder cost subject criticism spirit delay seeking security failure properly quantify claim also unclear spirit evidence whether cost include amount related settlement negotiation hinks 26 spirit legal cost settlement negotiation including 12 month period stay cannot subject cost order favour 127 074 21 past cost security sought incurred 10 august 2010 31 january 2011 security warranted cost quantified include significant work related spirit unsuccessful appeal full federal court ordered pay fkp cost see 92 doubt reflects fact spirit prepared evidence security application full federal court delivered judgment appeal fkp invited spirit reconsider claim thirdly first occasion spirit foreshadowed would seek security significant lump sum past cost correspondence dated 15 december 2010 hinks 29 period settlement negotiation commencing may 2008 ending december 2009 hinks 25 swinson 21 23 affords excuse failing raise issue security cost referred 86 86 b early 2007 case 86 c latest december 2009 settlement negotiation complete possible explanation spirit failed properly supervise monitor cost recently discovered blow extent liability hypothesis consistent evidence suggest spirit never obtained estimate legal cost solicitor entered cost agreement fourthly whatever reason spirit extensive delay seeking security fkp called upon deposit large lump sum security fkp budgeted cost proceeding light party previous agreement see hinks 30 requiring fkp deposit security sought adversely affect ability discharge liability comply russian law concerning economic efficiency hinks 30 permission also required federal service regulation alcohol market russia could possibly refused affect fkp financial position hinks 30 c failure properly quantify spirit claimbefore security cost awarded must proper cogent evidence party seeking security seeidoportat 60 evidence usually comprises detail rosati 34 nature work actually performed anticipated likely performed b hourly rate charged different fee earner c detail discount applied applied cost charged number hour spent fee earner either total relation category work fkp submitted general comment discovery insufficient detail spirit evidence justify cost sought security past cost rosati 36 115 absent appropriate evidence spirit fkp issued notice produce copy tax invoice issued spirit solicitor mallesons see hinks 31 redacted version tax invoice issued mallesons spirit u dollar subsequently made available inspection fkp fkp argued present purpose invoice illustrate two important point first expenditure included spirit calculation cannot subject cost order favour noted spirit seek security 127 074 21 past cost incurred 10 august 2010 31 january 2011 ex j 6 narration tax invoice show significant proportion work period related spirit unsuccessful appeal full court regarding separate question rosati 127 see also ex kr 3 pp 6 9 16 19 26 28 spirit ordered pay fkp cost appeal entitled security cost subject specific adverse cost order rosati 129 secondly spirit expenditure date excessively high justify level 60 security sought second point developed likely proportion cost recoverable spirit taxation overviewspirits calculates requires 1 2m security applying recovery rate 60 past cost future cost identified swinson rate based upon mr swinson assumption swinson 59 60 spirit cost recoverable taxation calculation set 68 fkp adopts recovery rate 45 future cost disbursement submits 40 appropriate rate contrary submission security awarded spirit past cost figure reflect upper lower range cost likely recoverable spirit taxation according affidavit independent expert m kerrie ann rosati m rosati legal cost expert solicitor director dg thompson legal cost lawyer consultant responsible managing team around 20 legal cost consultant provided legal costing service thousand commercial litigation matter including novel complex protracted proceeding principle applicable taxation cost court explained detail m rosati m rosati deposes proportion cost recoverable 65 actual cost matter falling range rosati 43 ii past cost present casehaving regard tax invoice produced spirit pleading relevant document m rosati expert opinion reasonable range likely past cost recoverable spirit taxation 40 45 actual cost quite possibly le rosati 118 basis m rosati opinion amount past cost recoverable spirit lower end slightly usual range recovery detailed 42 118 affidavit broadly summary fkp submitted 138 fee earner mallesons billed time spirit relation cross claim giving rise duplication work time spent conferring internally usually recoverable taxation 82 84 b hourly rate billed mallesons spirit lawyer clerk significantly higher instance well excess 50 higher rate allowed party party basis federal court scale 74 75 example partner mallesons charged spirit work done hourly rate ranging 410 1 150 per hour 69 federal court scale permitted recovery rate ranging 244 304 plus general care conduct uplift 55 general care conduct uplift discussed rosati 18 19 50 58 ff paralegal clerical staff charged rate ranging 90 412 69 scale permitted recovery 52 64 per hour c spirit billed reference hourly rate work recoverable basis time charging example m rosati refers four page procedural affidavit spirit billed block narration total 20 74 hour 100 106 four fee earner equating u 4 414 u 1 000 per page cost recoverable scale basis number folio etc equated 4 5 hour time u 1 480 total one fee earner consistently point many example exist amount billed spirit well excess allowed scale example 3 march 2006 mallesons charged spirit u 12 012 80 time spent three solicitor including two partner attending instructing counsel hearing notice motion related work 86 time maximum daily amount permitted scale attendance hearing instructing counsel approximately aud 1 000 88 le 10 charged mallesons spirit e significant portion time billed spirit overseas trip mallesons trip undertaken mr swinson january 2007 costing 26 792 92 excluding disbursement 94 96 billing narration trip read 12 hour travel prepare meeting u 5 716 92 three entry eight hour meeting expert witness costing approximately u 3 800 eight hour working lovell office preparing response fkp brief travel u 3 844 96 12 hour travelling u 5 767 44 notwithstanding expenditure expert evidence filed spirit estimate additional 214 700 necessary prepare evidence separate question hearing plus 30 000 expert travel accommodation cost see ex j 7 also 10 day discovery trip september 2006 97 two lawyer entered block unit 7 hour 30 minute per day costing u 3 000 per day narration attending discovery trip time trip likely significantly reduced disallowed party party basis f considerable amount time billed spirit research likely disallowed reduced significantly 91 taxation including 60 hour billed two seasonal clerk december 2010 january 2011 research costed u 10 000 apparent ex kr 3 p 10 summer clerk billed approximately u 180 hr clear researched g many task associated electronic discovery recognised scale amount allowed party party basis cost likely significantly le cost charged spirit 107 114 fkp position course security given past cost discretionary reason submitted contrary position court decided award security fkp submitted security awarded lowest end range proposed m rosati 40 regard evidence discretionary factor iii future cost estimatems rosati deposes future cost recoverable spirit also likely vicinity 40 45 taking spirit estimate ex j 7 matter set 130 149 affidavit include team approach involving large number lawyer consequent duplication work likely continue b task detailed spirit estimate duplicated partner solicitor performing similar task c estimate cost 8 500 briefing counsel appear excessive given counsel briefed matter number year 214 700 estimated cost spirit evidence yet indication scope extent evidence question provided estimate 132 hour solicitor time including 32 hour partner time prepare evidence appears high e thirty hour solicitor time 24 700 estimated preparing submission yet senior junior counsel briefed f indication estimated amount cost incurred expert witness calculated fkp prepared give security future cost approximately upper end 45 range proposed m rosati per calculation 68 iv disbursementsfurther security sought disbursement 244 518 including 92 520 cost overseas airfare associated cost 151 998 processing document discovery 120 m rosati opines 45 likely recovery rate disbursement 124 although disbursement open criticism ground delay previous agreement example 92 000 overseas airfare appears include trip undertaken september 2006 january 2007 94 97 fkp prepared give security cost range 45 adopted m rosati taking account evidence security claimed disbursement may relate part cross claim see swinson 50 51 v criticism m rosaticontrary spirit submission 61 62 answer m rosati evidence spirit point case higher percentage security awarded fkp dispute usual range recovery taxation 45 65 figure consistent case referred spirit point present case cost recoverable likely lower end slightly range possibly le reason explained detail affidavit m rosati criticism m rosati affidavit 64 foundation rule 40 29 fcr provides work done prior 1 august 2011 taxed accordance scale rule fcr thus cannot affect m rosati evidence concerning past cost incurred 2 december 2005 31 january 2011 b fcr maintain rule unreasonable unnecessary expense allowable taxation r 40 30 reason suppose rule interpreted way relevantly different necessary proper test 62 r 19 rule c spirit justify evidence court application fcr give rise expectation recovery future cost higher proportion adopted m rosati report allegation m rosati give sufficient allowance novelty complexity proceeding reflects misreading affidavit fact m rosati concluded matter novel complex large number document question law fact appropriate uplift light complexity 20 25 rosati 50 52 reason court doubt correctness opinion particularly m rosati experience includes involvement recovery cost large complex matter vi summary likely position taxationin summary fkp submitted picture revealed analysis tax invoice far 60 recovery rate adopted spirit conservative estimate recoverable cf 40 security sought cost excessive regard duplication work involving 138 fee earner b time charging hourly rate well excess recoverable c billing amount well excess recoverable cost disbursement associated discovery cost overseas trip recoverable substantially reduced e cost order fkp favourspirits ordered pay fkp cost substantive interlocutory step date proceeding cost full federal court appeal subsequent application special leave appeal high court relation spirit application discovery russian federation hinks 38 b b cost spirit appeal full federal court respect hearing separate question hinks 38 c spirit yet paid fkp cost order significant hinks 39 factor warranting lower usual amount security f manner paymentowing russian law fkp cannot deposit large lump sum security account period le four month hinks 30 37 fkp accordingly requested court allow sufficient opportunity provide additional security ordered g conclusion security costsspirits application security amount 1 200 000 refused fkp consent providing additional 300 000 security submits amount fairly adequate appropriate reference calculation 68 security offered raise amount security 1 046 000 plus accruing interest adequate point proceeding beyond security justified regard october 2006 agreement b timing past cost including 542 000 incurred previous agreement provide third tranche including discovery c length spirit delay seeking security adequately explained failure spirit properly quantify claim e excessive quantum cost security sought including involvement 138 fee earner charging amount well excess recoverable considerationon hearing motion spirit senior counsel walked away claim security respect past cost incurred 2 december 2005 9 october 2006 amounting 542 409 76 opinion acted correctly relation past cost incurred 10 october 2006 28 february 2007 143 856 17 submitted allowance cost agree indeed taken position respect past cost incurred 10 october 2006 28 february 2007 143 856 17 incurred 1 march 2007 15 january 2010 557 250 08 incurred 10 august 2010 31 january 2011 127 074 21 reason summarised fkp submission recorded 68 subsequently developed 73 113 follows said 114 spirit motion security cost must refused face fkp offer pay additional amount 300 000 way security spirit cost would disposed make order term order going temporal relevant aspect execution order subject negotiation party view fkp cost motion certify preceding one hundred seventeen 117 numbered paragraph true copy reason judgment herein honourable justice edmonds associate dated 25 january 2012 |
Filippidis and Secretary, Department of Education, Employment and Workplace Relations and Anor [2009] AATA 625 (21 August 2009).txt | filippidis secretary department education employment workplace relation anor 2009 aata 625 21 august 2009 filippidis secretary department education employment workplace relation anor 2009 aata 625 21 august 2009 last updated 24 august 2009administrative appeal tribunaldecision reason decision 2009 aata 625administrative appeal tribunal 2009 1132general administrative division reparry filippidisapplicantandsecretary department education employment workplace relationsrespondentandshelley bloomfieldthird partydecisiontribunaldeputy president hotopdate21 august 2009placeperthdecisionthe tribunal affirms decision review sgd hotop deputy presidentcatchwordssocial security parenting payment pp applicant third party parent child applicant third party separated january 2007 third party received pp january 2007 applicant received newstart allowance may 2008 applicant third party shared care child equally may 2008 applicant claimed pp august 2008 consideration financial relevant circumstance applicant third party one person time principal carer chid determination made third party principal carer child child pp child applicant applicant qualified pp decision review affirmedsocial security act 1991 cth 5 1 5 2 5 15 5 18 5 19 500 1 ands 500d 2 secretary department family community service v holmes 2000 98 fcr 461reasons decision21 august 2009deputy president hotopintroductionparry filippidis mr filippidis shelley bloomfield m bloomfield daughter olivia born november 2006 m bloomfield also son born 1997 earlier relationship neither mr filippidis m bloomfield child mr filippidis m bloomfield de facto relationship separated 23 january 2007 m bloomfield granted parenting payment pp single rate thesocial security act1991 |
Holt v South Gippsland SC [2003] VCAT 1964 (22 December 2003).txt | holt v south gippsland sc 2003 vcat 1964 22 december 2003 last updated 29 december 2003victorian civil administrative tribunaladministrative divisionplanning environment listp3128 2003catchwordssection 71 2 victorian civil administrative tribunal act 1998 rejection application principal registrar confirmation rejectionapplicant michael holtresponsible authority south gippsland shire councilsubject land orion road venus baywhere held melbourne jeanette g rickardshearing type hearing date hearing 12 december 2003date order 22 december 2003medium neutral citation 2003 vcat 1964orderthe rejection application principal registrar confirmed jeanette g rickardsmemberappearances forresponsible authority appearancefor applicant mr holtreasons1 mr holt lodged application tribunal seeking enforcement order pursuant section 114planning environment act1987 pe act south gippsland shire council 2 mr holt sought order requiring south gippsland shire council remove bitumen top 100mm crushed rock placed orion road replace 100mm koonwarra gravel order reinstate orion road gravel road 3 principal registrar informed mr holt letter dated 11 november 2003 application rejected section 71victorian civil administrative tribunal act1998 |
Hanna v National Library of Australia [2004] ACTSC 75 (1 September 2004).txt | hanna v national library australia 2004 actsc 75 1 september 2004 last updated 17 september 2004wagdy hanna associate pty ltd v national library australia 2004 actsc 75 1 september 2004 legal practitioner confidential information application restrain solicitor acting litigation solicitor previously acted plaintiff federal court proceeding becomes partner firm representing defendant supreme court proceeding proceeding arguably related whether court intervene prevent acting whether necessary protect confidential information whether chinese wall sufficient whether solicitor equitable duty loyalty former client scope control officer court prince jefri bolkiah v kpmg 1998 ukhl 52 1999 1 er 517 hl newman v phillips fox 1999 21 war 309spincode pty ltd v look software pty ltd others 2001 vsca 248 2001 4 vr 501belan v casey 2002 nswsc 58mcveigh anor v linen house pty ltd rug galore australia pty ltd or 1999 vsca 138 1999 3 vr 394gugiatti v city stirling 2002 wasc 33 2002 25 war 349british american tobacco australia service ltd v blanch 2004 nswsc 70 20 february 2004 sent v john fairfax publication j pty ltd 2002 vsc 429fordham v legal practitioner complaint committee 1997 18 war 467world medical manufacturing corp v phillips ormonde fitzpatrick lawyer 2002 vsc 196 18 may 2000 colonial portfolio service ltd v nissen 2000 nswsc 1047 7 november 2000 b legal practitioner v disciplinary tribunal 2001 tassc 55 15 may 2001 waiviata pty ltd v new millenium publication pty ltd 2002 fca 98 15 february 2002 bureau interprofessionnel de vins de bourgogne v red earth nominee pty ltd 2002 fca 588 9 may 2002 rothschild v mullins anor 2002 tassc 100 15 november 2002 sc 236 2003judge higgins cjsupreme court actdate 1 september 2004in supreme court sc 236 2003australian capital territory wagdy hanna associate pty ltdplaintiffand national library australiadefendantorderjudge higgins cjdate 1 september 2004place canberrathe court order 1 application dismissed 1 plaintiff 8 may 2003 commenced proceeding defendant seeking relief including damage defendant alleged statement claim plaintiff one several tenderers seeking awarded contract defendant certain building work alleged plaintiff defendant breached term tender process divulging confidential information plaintiff submitted purpose tender another tenderer contract ultimately awarded 2 application address issue relevant dispute rather plaintiff seek order blake dawson waldron cease act solicitor defendant 3 ground application set affidavit mr wagdy hanna managing director plaintiff 4 deposes present plaintiff plaintiff federal court proceeding 52 1998 defendant proceeding respondent instructed messrs phillips fox solicitor behalf defendant represented australian government solicitor solicitor carriage matter mr paul vane tempest matter settled 4 week settlement mr vane tempest left employ messrs phillips fox became partner blake dawson waldron firm 2003 instructed act defendant proceeding 5 connection two matter mr hanna alleges defendant current proceeding pleads settlement 1998 federal court proceeding bar plaintiff taking proceeding although mr hanna stated plaintiff proceeding pleading assume company present plaintiff party made assumption present purpose though nothing turn mr hanna clearly directing mind plaintiff 6 mr hanna asserts defendant solicitor consequently conflict interest preclude acting defendant 7 letter plaintiff solicitor make plain though asserted mr vane tempest extensive intimate knowledge earlier proceeding suggested inappropriately disclosed offered disclose knowledge also appears 7 may 1999 mr hanna discussed mr vane tempest change firm mr hanna supportive matter going mr van tempest blake dawson waldron managing partner firm denied request 8 challenged relevant solicitor acting defendant sought seek obtain relevant information mr vane tempest indeed defendant expressly authorised blake dawson waldron refrain seeking information relevant partner offered written undertaking effect 9 prepared assume mr vane tempest may well confidential information imparted 1998 may 1999 relevant present litigation satisfied however disclose information defendant person acting behalf defendant satisfied whether could defendant require blake dawson waldron seek obtain information 10 mr erskine plaintiff submitted withstanding assurance possibility accidental disclosure could precluded event overriding consideration public perception conflict interest necessitated order sought aspect duty loyalty mr erskine acknowledged controversial nevertheless submitted real risk seepage confidential information undoubtedly held mr vane tempest deliberately letting slip information thought relevant may make link chain causation reasoning maintenance chinese wall submitted sufficient guarantee 11 mr meagher defendant pointed lack specificity possibly confidential information mr vane tempest may possessed 1999 contended three base disqualification mr erskine referred rejected agreed duty part former solicitor protect confidential information former client contended basis making order sought 12 mere fact confidential information may well repose former solicitor enough mr meagher contended must necessary intervene protect confidentiality given instruction defendant undertaking responsible solicitor real risk disclosure hence need intervention must reasonable probability real mischief 13 useful refer authority matter 14 inprince jefri bolkiah v kpmg 1998 ukhl 52 1999 1 er 517 hl plaintiff previously engaged defendant accounting firm support litigation party firm gained substantial access confidential information duty preserve confidence accepted equivalent legal adviser 168 personnel involved subsequently shortly litigation ceased firm engaged brunei government investigate plaintiff conduct concerning management body subject previous litigation 15 firm aware possessed confidential information erected chinese wall avoid disclosure confidential information member firm acting brunei government 16 house lord considered intervention protect plaintiff right confidence 17 lord millett 527 explained basis intervention court jurisdiction cannot based conflict interest real perceived none fiduciary relationship subsists solicitor client come end termination retainer duty former client survives termination client relationship continuing duty preserve confidentiality information imparted subsistence 18 borne mind continuing duty imposed merely partner every member relevant firm company whether solicitor clerk support staff information however duty absolute extend avoidance merely remote possibility accidental disclosure 19 lord millett opinion 527 follows case former client basis granting relief risk disclosure misuse confidential information 20 test lordship endorsed 528 court intervene unless satisfied risk disclosure go without saying risk must real one merely fanciful theoretical need substantial 21 opinion entirely proper burden confidential information protect high public confidence encouragement candour client legal similar adviser demand le also agree irrelevant intervention might commercially damaging firm employing professional pre existing confidential information whose prior relationship client long since terminated 22 called chinese wall construction wall present case considered adequate lord millett view effective wall involve physical separation various department order insulate often extends matter detail dining arrangement ii educational programme normally recurring emphasis importance improperly inadvertently divulging confidential information iii strict carefully defined procedure dealing situation felt wall crossed maintaining proper record occurs iv monitoring compliance officer effectiveness wall v disciplinary sanction breach wall 23 would note however whilst called case asprince jefri bolkiah case large firm many member recently involved affair may necessary one individual posse information conscious need preserve strict confidentiality also would add member firm dealing potential beneficiary information beneficiary 24 steytler j dissimilar case innewman v phillips fox 1999 21 war 309 25 honour noted 316 28 solicitor obligation put client disposal skill also knowledge hence client instructing lawyer possession previous knowledge even confidentially imparted current opponent unless excused current client obligation place confidential knowledge disposal new client plainly allowed occur conflict interest ordinarily resolved refusal new instruction say solicitor firm automatically assumed knowledge possession information another member firm see pp 316 7 29 33 26 addition honour noted general public policy concern person entitled seek obtain legal advice conduct affair without apprehension prejudiced later breach confidence see 318 320 38 47 27 course fact lawyer tainted possession confidential information conflict former client interest seen isolated behind apparently effective chinese wall would tend support confidence continued protection confidential information 28 result steytler j accepted theprince jefri bolkiahtest applied 29 instant case however despite undertaking preserve confidentiality former client information erection chinese wall honour satisfied relief refused 325 77 80 said wall proposed respondent case fall opinion short required like inbolkiahit proposed established ad hoc unaccompanied educational programme procedure kind discussed inbolkiah nothing proposed respect monitoring record keeping proposal respect imposition disciplinary sanction said proposed mr hely become partner phillips fox consequently assumed frequent interaction professional social others phillips fox would also unreasonable expect interaction mr coyle senior associate others phillips fox two articled clerk part training doubt exposed range different type work consequently personnel phillips fox expected mix articled clerk young practitioner firm also expected case young practitioner share experience exchange advice position exacerbated fact adequate safeguard appear considered regard administrative staff formerly employed hely edgar employ philip fox may recipient confidential information reason assume come contact range different people phillips fox opinion consequently risk inadvertent disclosure kind considered case referred notwithstanding best intention lawyer concerned impeccable standing firm 30 course case entire firm merged much larger phillips fox risk inadvertent disclosure therefore exacerbated number person confidential information 31 spincode pty ltd v look software pty ltd others 2001 vsca 248 2001 4 vr 501was perhaps egregious example solicitor continued act company dispute arose five shareholder solicitor effectively dealt previously found court appeal risk misuse confidential information excluded thus injunction exclude solicitor acting found warranted however wider question addressed may solicitor change side 508 26 32 opinion brooking ja ormiston chernov jja agreeing answer question arise merely possible misuse confidential information also duty loyalty arising original contract retainer act former client future litigation arising least matter irrespective existence confidential information respecting former client honour cast obligation broadly saying 524 525 58 thought solicitor case subject neither negative equitable negative contractual obligation would say done would regard whole conduct offensive common notion fairness justice officer court brought heel notwithstanding hypothesis infringed legal equitable right authority supporting approach need mentioned may one refer head rather misuse confidential information advantage mcpherson kelly would reason knowledge thing personality reaction participant change may taken place past regard kirton diary note called allegiance deterred suggestion infringement legal equitable right cease mark may proscribed solicitor would client subject great unfair uncertainty unable say advance view court take experienced solicitor sound judgment would done done case view nature objective jurisdiction court exercise officer breadth discretion permit regard nature dispute litigation ensued former retainer new one also conduct solicitor stage includes partisan approach kirton acted company undisclosed attempt serve moore interest peremptory unseemly way solicitor changed side denial company client uncandid affidavit kirton tried give impression company client would used say pessimi exempli mcpherson kelly called account 33 case strong authority view irrespective risk disclosure confidential information solicitor bound continuing duty act former client respect matter related prior matter respect seems borne mind even character past history client may relevant even otherwise unconnected litigation credit former client vulnerability strength client may use conducting subsequent litigation 34 view expressed brooking ja rejected young cj eq inbelan v casey 2002 nswsc 58 honour considered thatprince jefri bolkiahshould followed must considered real risk breach duty hold information confidential 35 honour considered ormiston chernov jja support brooking ja judgment duty loyalty 36 true whilst disagreeing aspect judgment ormiston ja overtly support say 525 61 luxury time consider may reached agreement brooking ja aspect 37 however chernov ja reserved though say 526 63 considerable benefit reading draft reason judgment brooking ja essentially reason expressed agree appeal dismissed also necessary decide purpose appeal whether absolute obligation solicitor act former client substantially proceeding although may say respect learned judgment brooking ja make compelling case view 38 may noted inprince jefribolkiahthe house lord forbad solicitor acting risk revelation confidential information even inadvertently 39 necessarily exclude least relevant matter existence fiduciary obligation loyalty former client importantly relationship two importance albeit young cj eq decries per incuriam callaway batt jja inmcveigh anor v linen house pty ltd rug galore australia pty ltd or 1999 vsca 138 1999 3 vr 394affirmed duty loyalty former client respect litigation arising matter 40 honour placed reliance obligation safeguard confidential information 23 also ensure solicitor duty loyalty former client respected notwithstanding termination retainer uphold matter public policy special relationship solicitor client 41 obviously applicable case solicitor engaged two client common interest find fallen approached act one even young cj eq noted 21 overwhelming weight authority effect applicant restrain solicitor former client sole consideration whether real risk disclosure confidential information one delve matter conflict interest conflict duty situation delving may well material emphasis added 42 may noted case honour satisfied confidential information risk disclosure mean say aspect previous solicitor client relationship might relevant apparent propriety solicitor opposing former client 43 application disqualify solicitor refused ingugiatti v city stirling 2002 wasc 33 2002 25 war 349 plaintiff sued city represented mcleods solicitor one partner mr denis mcleod partner another firm mcleod co firm acted plaintiff 1990 1994 previous related dispute current action commenced 1997 plaintiff sought restrain mcleods basis mr denis mcleod previous firm received confidential information evidence identifying information although purpose application solicitor disclosed without consent former client file merely court also city got see 44 nevertheless honour able conclude despite detail allegedly confidential information given 357 56 reasonable bystander would consider claim could prejudiced city knowledge confidential information given mr mcleod 1991 1994 even mr mcleod could remember honour continued 57 59 see least risk city might make use material mcleod file cross examine credit claim damage however think risk eliminated requiring city return mr gugiatti present solicitor copy file furthermore mcleods required undertake material file privilege attache used mr gugiatti pending action think possibility mr mcleod recollection refreshed eliminated requiring disclose confidential information given mr gugiatti member employee firm appreciate court generally construction chinese wall particularly small firm mcleods seven partner however unusual case sense mr mcleod person firm mr gugiatti dealt mr mcleod therefore person need quarantined way propose 45 two relevant observation may made first mr vane tempest like mr mcleod person relevant information taken file document previous firm knowledge remains need quarantined 46 second relevant note honour conclusion suitable quarantining mr mcleod undertaking member current firm seek seek make use confidential information would suffice conclusion expressed context principle adopted inprince jefri bolkiah scase also principle referred inter alia inmcveigh v linen house pty ltd supra honour summarised qualified follows 351 10 12 word solicitor adopts hostile position former client related matter restrained acting thatof itselfis breach professional duty thatof itselfis likely undermine trust confidence community legal profession however two qualification principle first case rare special isnota case one solicitor acted party seek act one former client interest preferred client litigation arising matter acted seewan v mcdonald 1992 fca 4 1991 33 fcr 491 513 per burchett j secondly malcolm cj said infordham solicitor may assume hostile relationship former client conduct would give rise apprehension impropriety mind reasonable bystander 47 passing also note honour course hearing considered inappropriate former client detail confidential information imparted former solicitor simply found satisfied evidence available confidential information relevant current proceeding balance probability imparted former solicitor 48 apparent case solicitor could recall information written form thus material honour found 357 56 57 persuaded reasonable bystander would consider claim city arising damage suffered 1996 could prejudiced city knowledge confidential information given mr mcleod 1991 1994 even mr mcleod could remember see least risk city might make use material mcleods file cross examine credit claim damage 49 remedy honour considered surrender plaintiff current solicitor file copy thereof giving undertaking solicitor disclose confidential information might recollect 50 also note recent decision young cj eq british american tobacco australia service ltd v blanch 2004 nswsc 70 20 february 2004 case solicitor question behest insurer allianz represented plaintiff bata tobacco related litigation settlement asbestos claim employer another insured allianz issue whether damage contributed claimant smoking bata could sued solicitor employer instruction allianz cross claimed bata contribution bata objected ground solicitor prejudicial confidential information acquired solicitor tobacco related litigation solicitor took view always acted allianz owed duty bata 51 spurious contention firmly rejected need honour found go beyond basis intervention identified inprince jefri bolkiah supra made difference fiduciary duty solicitor bata relationship arose solicitor retainer allianz 52 additional basis beyond protection confidential information relying power control proper conduct solicitor prevent conflict interest reasonable perception public adherence proper conduct honour referred view expressed inspincode supra brooking ja subsequently applied insent v john fairfax publication j pty ltd 2002 vsc 429by nettle j whilst acknowledging 105 may exceptional case equity give relief favour former client confidential information present however still rule forbidding lawyer acting former client 53 honour nevertheless adhered previous opinion significantly subject two rider first expressed kirby j infordham v legal practitioner complaint committee 1997 18 war 467 solicitor cross examining former client matter disclosed previous proceeding 111 heart professional wrong act disloyalty honour noted confidential information may include client forensic tactic strategy 113 54 even much material given solicitor publicly available prior collation knowledge accessibility information may worthy protection 55 view may case rapport created solicitor client may render inappropriate solicitor act contrary interest former client example credit former client may put issue court view act prevent conflict interest solicitor former client primarily usually protect confidential information imparted client assumed solicitor remains possession addition may exceptional case relationship quality beyond mere reposal confidential information analogously close friendship relationship would would appear breach obligation loyalty breach would regarded reprehensible conduct reasonable impartial observer called aid adjudge judicial conflict interest 56 equitable relief course declined depending degree prejudice former client ground acquiescence delay uniqueness lawyer skill experience unlikely suffice reason refusing relief 57 said twin objective relief sought protect former client confidential information including knowledge tactic vulnerability like support public confidence legal profession adherence confidentiality client information duty prefer client interest thus client must assured relationship solicitor client cannot result solicitor using fruit relationship client disadvantage 58 numerous case discussingprince jefri example world medical manufacturing corp v phillips ormonde fitzpatrick lawyer 2002 vsc 196 18 may 2000 colonial portfolio service ltd v nissen 2000 nswsc 1047 7 november 2000 b legal practitioner v disciplinary tribunal 2001 tassc 55 15 may 2001 waiviata pty ltd v new millenium publication pty ltd 2002 fca 98 15 february 2002 bureau interprofessionnel de vins de bourgogne v red earth nominee pty ltd 2002 fca 588 9 may 2002 rothschild v mullins anor 2002 tassc 100 15 november 2002 59 mention detail onlyrothschild v mullins supra involved solicitor became dpp prosecutor dpp prosecuted former client solicitor disclosed accused client undertook concurrence dpp disclose information concerning client clear case potential breach duty perceived risk disclosure satisfactorily removed 60 present case suggestion mr vane tempest left phillips fox time blake dawson waldron solicitor plaintiff defendant solicitor connection litigation plaintiff revived dispute defendant sought representation coincidentally firm mr vane tempest joined instruction given accepted accept without knowledge possession mr vane tempest confidential information 61 mr vane tempest involved current litigation promise way undertaking discus case anything connected dealing litigation dealing litigation also undertake discus case mr vane tempest defendant consent undertaking given undertakes respect 62 circumstance seems credible risk confidential information even tactical kind revealed defendant lawyer others acting behalf seems restraint knowledge remove likelihood hypothetical reasonable bystander would consider mr vane tempest position firm way viewed compromising duty loyalty far subsists mr vane tempest assumed member plaintiff legal team 1996 63 opinion order required application dismissed hear party cost certify preceding sixty three 63 numbered paragraph true copy reason judgment herein honour chief justice higgins associate date 1 september 2004counsel plaintiff mr c erskinesolicitor plaintiff snedden hall gallopcounsel defendant mr b meaghersolicitor defendant blake dawson waldrondate hearing 28 may 2004date judgment 1 september 2004 |
Fair Work Ombudsman v Darna Pty Ltd & Anor [2014] FCCA 1105 (27 May 2014).txt | fair work ombudsman v darna pty ltd anor 2014 fcca 1105 27 may 2014 last updated 4 june 2014federal circuit court australiafair work ombudsman v darna pty ltd anor 2014 fcca 1105catchwords industrial law undefended default judgment second respondent director refusal engage legal representation behalf first respondent company proceeding adjourned respect second respondent liability legislation fair work act 2009 cth s 545 1 545 2 716 716 5 federal circuit court act 1999 cth 76federal circuit court rule 2001 cth rr 9 04 13 03a 2 13 03b 13 03b 2 c 13 03c 2 arthur v vaupotic investment pty ltd 2005 fca 433australian competition consumer commission accc v dataline net au pty ltd 2006 236 alr 665australian competition consumer commission v yellow page marketing bv 2 2011 fca 352fair work ombudsman v garfield berry farm pty ltd anor 2011 fmca 885kerryj investment pty ltd v xiamen fengwei energy technology co ltd 2013 fca 361applicant fair work ombudsmanfirst respondent darna pty ltd acn 135 545 069 second respondent yoav orenfile number mlg 932 2013judgment judge hartnetthearing date 27 may 2014delivered melbournedelivered 27 may 2014representationcounsel applicant mr j traceysolicitors applicant office fair work ombudsmanthe first respondent appearancethe second respondent personthe court declares upon admission first respondent taken made consequent upon default first respondent pursuant r 13 03a 2 thefederal circuit court rule 2001 cth first respondent contraveneds 716 5 thefair work act 2009 cth fw act failing comply compliance notice dated 28 may 2013 requiring first respondent pay mr moshe ittah amount 4 222 05 gross 11 june 2013 court order 1 pursuant 545 2 fw act first respondent pay mr ittah amount 4 222 05 gross within 14 day date order 2 pursuant 547 fw act first respondent pay interest 257 43 sum referred order 1 herein 3 pursuant 559 1 fw act event first respondent unable locate mr ittah within time prescribed order 1 herein first respondent pay amount due mr ittah commonwealth within seven day 4 matter adjourned direction hearing 13 august 2014 10am respect second respondent liability 5 party liability apply federal circuit courtof australiaat melbournemlg 932 2013fair work ombudsmanapplicantanddarna pty ltd acn 135 545 069 first respondentyoav orensecond respondentreasons judgment editedex temporereasons proceeding commenced 27 june 2013 applicant filed application seeking order set statement claim filed application ground application likewise set statement claim filed contemporaneously respondent filed response 7 january 2014 defence 7 january 2014 currency proceeding second respondent sought court leave represent first respondent proceeding first respondent would represented lawyer court heard application second respondent declined exercise discretion favour second respondent application dismissed thus first respondent required represented proceeding legal practitioner intervening eight week present time first respondent represented application case filed applicant 20 may 2014 seeking order court make day application supported affidavit sworn m caitlin bailey 20 may 2014 applicant provided written submission supporting application entering default judgment applicant first respondent respect second respondent court determines day adjourn proceeding second respondent liability accessory first respondent contravention thefair work act 2009 cth fw act direction hearing timetabling filing evidence submission respect alleged liability hearing proceed prior listing subsequent penalty hearing may required proceeding concern alleged contravention 716 5 fw act applicant alleges first respondent failed comply compliance notice dated 28 may 2013 given accordance 716 fw act notice required first respondent pay mr moshe ittah amount 4 222 05 gross 11 june 2013 rule 13 03b 2 c thefederal circuit court rule 2001 cth rule enables court give judgment respondent proceeding commenced application supported statement claim relief applicant appears entitled statement claim andthe court satisfied power grant requirement proof way evidence applicant claim 1 court power enter default judgment discretionary court exercise discretion caution rule 13 03a 2 rule provides respondent default purpose r 13 03b rule respondent satisfied applicant claim b fails give address service time respondent give address expired ii file response time respondent file response expired iii comply order court proceeding iv file serve document required rule v produce document required part 14 vi act required done rule vii defend proceeding due diligence r 13 03c 2 rule provides party proceeding absent hearing court may make order kind mentioned r 13 03b 2 purpose application default judgment applicant relied upon court earlier decision wherein refused application second respondent represent first respondent first respondent represented proceeding lawyer rule 9 04 rule provides except leave court corporation may start carry proceeding otherwise lawyer failure company party civil litigation appoint legal representation considered failure act required rule failure prosecute proceeding due diligence 2 proceeding commenced 27 june 2013 served respondent 3 july 2013 considerable period time ago affidavit m caitlin baillie affirmed 20 may 2014 provides evidence applicant solicitor informed second respondent le eight occasion prior january 2014 requirement company must legally represented order participate proceeding following decision court handed 28 march 2014 refusing application second respondent represent first respondent applicant solicitor made numerous attempt engage legal representative company appointed second respondent became clear second respondent intention obtaining legal representation first respondent failure first respondent appoint lawyer eight week following decision court 28 march 2014 constitute failure act required done r 9 04 rule addition court accepts submission 18 applicant submission default judgment filed 27 may 2014 first respondent failure obtain legal representation constitutes failure prosecute application due diligence first respondent capacity take step proceeding following court earlier decision 28 march 2014 frustrated applicant attempt set timetable progress proceeding resulting step taken since decision 28 march 2014 andhas indicated second respondent intend take step would enable participate proceeding include appearance first respondent hearing day rather second respondent sought agitate issue legal representation first respondent despite earlier determined court first respondent today date satisfied applicant claim particular paid mr ittah amount required paid compliance notice failed comply r 9 04 rule failed defend proceeding due diligence demonstrated unwillingness inability cooperate court applicant bring matter trial factual background alleged contravention fw act set applicant statement claim filed 27 june 2013 applicant standing bring contravention civil remedy provision proceeding made case relief claimed face statement claim required contravention first respondent 716 5 act result failure comply compliance notice issued default judgment application set form order declaration sought includes wording acknowledging declaration made based deemed admission reflect suggested form word kiefel j inaustralian competition consumer commission accc v dataline net au pty ltd 2006 236 alr 665at 59 adopted court infair work ombudsman v garfield berry farm pty ltd anor 2011 fmca 885 court wide discretionary power make declaration including based admission made consequent default 3 applicant submits utility making declaration sought clearly identify contravening conduct applicant argues public interest served making declaration sought help educate employer obligation employee warn consequence failing comply statutory notice assisting achieving general deterrence making declaration sought would also mark court disapproval contravening conduct court accepts submission accepts utility making declaration sought court power make order sought pursuant 545 1 fw act court may make order considers appropriate satisfied person contravened civil remedy provision order court make day founded section pursuant 76 thefederal circuit court act 1999 cth court may order interest rate period court see fit applicant submits would appropriate interest applied period 27 june 2013 day date default judgment entered court accepts submission shall order accordingly certify preceding twenty 20 paragraph true copy reason judgment judge hartnettassociate date 2 june 2014 1 arthur v vaupotic investment pty ltd 2005 fca 433at 3 australian competition consumer commission v yellow page marketing bv 2 2011 fca 352at 14 2 kerryj investment pty ltd v xiamen fengwei energy technology co ltd 2013 fca 361at 24 3 australian competition consumer commission accc v dataline net au pty ltd 2006 236 alr 665at 54 59 australian competition consumer commission v yellow page marketing bv 2 2011 fca 352at 66 69 |
Expedit (Stan) Carvalho -v- J-Corp Pty Ltd [2014] WAIRComm 122 (20 February 2014).txt | expedit stan carvalho v j corp pty ltd 2014 waircomm 122 20 february 2014 last updated 24 march 2014western australian industrial relation commissionpartiesexpedit stan carvalhoapplicant v j corp pty ltdrespondentcoramchief commissioner r beechdatethursday 20 february 2014file sb 65 2013citation 2014 wairc 00122resultfurther order issued discovery production documentsrepresentationapplicantmr p mullallyrespondentmr power counsel m j howard counsel orderwhereas order issued 25 october 2013 2013 wairc 00912 production document whereas 4 november 2013 applicant sought order production variation sheet applicant contract whereas hearing application 12 february 2014 applicant amended application production statement final account wheras respondent oppose making order term amendment heard mr p mullally applicant mr power counsel m j howard counsel respondent therefore undersigned pursuant power conferred theindustrial relation act 1979 consent hereby order 1 within 14 day date order respondent produce inspection applicant representative patrick edward mullally respondent premise squire sander level 21 300 murray street perth period 26 april 2007 18 december 2012 electronic copy statement final account issued client respondent procured applicant 2 applicant patrick edward mullally time date mutually agreed party inspect electronic copy discovered document 3 inspection conducted presence representative respondent 4 patrick edward mullally permitted make note discovered document inspection basis note used purpose application b copied c provided solicitor respondent conclusion hearing application destruction applicant patrick edward mullally directly indirectly communicate information obtained inspection discovered document person without order commission chief commissioner r beech |
Fenton & Anor v Ozzz Lo Pty Ltd [2018] QDC 268 (20 December 2018).txt | fenton anor v ozzz lo pty ltd 2018 qdc 268 20 december 2018 last updated 20 december 2018district court queenslandcitation fenton anor v ozzz lo pty ltd or 2018 qdc 268parties donald fenton tamara speidel plaintiff vozzz lo pty ltd acn 010 480 243 first defendant andozzz lo healthcare pty ltdacn 108 007 058 second defendant androbert arthur bool third defendant andjoyce mary bool fourth defendant file 168 2013division civilproceeding claimoriginating court maroochydore district courtdelivered 20 december 2018delivered maroochydore district courthearing date 29 31 may 2017 18 august 2017 15 september 2017judge long sc dcjorder judgment plaintiff amount 89 451 60 including 27 760 84 interest first second defendant contravention ofs 52of thetrade practice act 1974 cth andagainst third defendant pursuant 75b 1 c thetrade practice act 1974 cth knowingly concerned contravention catchword trade commerce competition fair trading consumer protection legislation misleading deceptive conduct false representation false representation generally plaintiff purchased business manufacturing product reusable hot cold gel pack first second corporate defendant third fourth defendant director corporation representation made plaintiff non toxicity product content product contained substance particularly toxic alleged defendant knowledge fact establishing toxicity plaintiff relied representation alleged representation misleading deceptive therefore contraveneds 52of thetrade practice act 1974 alternatively alleged representation negligent misrepresentation whether representation misleading deceptive whether third fourth defendant accessorial liability pursuant 75b thetrade practice act 1974 whether extent damage loss caused contravention whether appropriate reduce recovery pursuant tos 82 1b thetrade practice act 1974legislation civil proceeding act 2011s 58competition consumer act 2010s 137btrade practice act 1974 cth s 52 75b 82 1 82 1b 87uniform civil procedure rule 150cases argy v blunts lane cove real estate pty ltd 1990 fca 51 1990 26 fcr 112australian competition consumer commission v danoz direct pty ltd 2003 fca 881australian security investment commission v activsuper pty ltd liq or 2015 fca 342 2015 235 fcr 181butcher v lachlan elder realty pty limited 2004 hca 60 2004 218 clr 592at 625caltex australia petroleum pty ltd v charben haulage pty ltd 2005 fcafc 271campbell v backoffice investment pty ltd 2009 hca 25 2009 238 clr 304carlton v pix print pty ltd 2000 fca 337citrus queensland pty v sunstate orchard pty ltd 7 2008 fca 1364cut price deli pty ltd v jacques 1994 fca 1101 1994 49 fcr 397darlington future ltd v delco australia pty ltd 1986 hca 82 1986 161 clr 500gould v vaggelas 1985 157 clr 215henjo investment pty ltd v collins marrickville pty ltd 1 1988 fca 40 1998 39 fcr 546henville v walker 2001 hca 52 2001 206 clr 459heydon v nrma ltd 2000 nswca 374 2000 51 nswlr 1i l security pty ltd v htw valuer brisbane pty ltd 2002 hca 41 2002 210 clr 109kabwand pty ltd v national australia bank ltd 1989 atpr 40 950keller v led technology pty ltd 2010 fcafc 55 185 fcr 449at 520kizbeau pty ltd v wg bpty ltd 1995 hca 4 1995 184 clr 281marks v gio australia holding ltd 1998 hca 69 1998 196 clr 494mccarthy v mcintyre 1999 fca 784medical benefit fund australia ltd v cassidy 2003 205 alr 402merost pty ltd v cpt custodian pty ltd 2014 fca 97mooloolaba slipway pty ltd v cashlaw pty ltd 2011 qsc 236netaf pty ltd anor v bikane pty ltd 1990 fca 35 1990 26 fcr 305parkdale custom built furniture pty ltd v puxu pty ltd 1982 hca 44 1982 149 clr 191perre v apand 1999 hca 36 1999 198 clr 180at 231professional service australia pty ltd v computer accounting tax pty ltd 2 2009 wasca 183r v cushion ex parte dpp 1998 150 alr 45radferry pty ltd vstarborne holding pty ltd 1998 fca 1689rafferty v madgwicks 2012 fcafc 37 2012 203 fcr 1taco company australia inc anor v taco bell pty limited or 1982 fca 136tefbao pty ltd v stannic security pty ltd 1993 118 alr 565tobacco institute australia ltd v australian federation consumer organisation inc 1992 fca 630 1992 38 fcr 1vouzas v bleake house pty ltd 2013 vsc 534woolcock street investment v cdg 2004 hca 16 2004 216 clr 515wp kidd p l anor v panwell pty ltd or 2007 qsc 373yorke v lucas 1985 168 clr 661counsel gerber plaintiffsj wilson smith defendantssolicitors mccormick lawyer plaintiffsgriffiths parry lawyer defendantsintroduction 1 amended claim filed 9 january 2014 plaintiff claim |
Whitehead v Pilgrim [1999] WASC 25 (18 May 1999).txt | whitehead v pilgrim 1999 wasc 25 18 may 1999 last updated 11 october 1999jurisdiction supreme court western australiacitation whitehead v pilgrim 1999 wasc 25coram commissioner kenneth martin qcheard 1 2 3 february 1999delivered 18 may 1999file civ 1071 1997between nola kaye whiteheadplaintiffandgeoffrey john pilgrimdefendantcatchwords equity resulting trust de factorelationship constructive trust joint tenancy mortgagor obligation unconscionability chattel relieflegislation result judgment plaintiffrepresentation counsel plaintiff mr h moserdefendant mr p wardsolicitors plaintiff paterson dowdingdefendant peter wardcase referred judgment case also cited allen v snyder 1977 2 nswlr 685australia new zealand bank group ltd v westpac banking corporation 1988 164 clr 662bannister v bannister 1948 2 er 133baumgartner v baumgartner 1987 hca 59 1987 164 clr 137bennett v taiura15 famlr 317charles marshall pty ltd or v grimsley anor 1956 hca 28 1965 95 clr 353david security pty ltd v commonwealth bank australia 1992 hca 48 1992 175 clr 353gillies v keogh 1989 2 nzlr 327gissing v gissing 1970 ukhl 3 1971 ac 886giumelli v giumelli anor 1996 17 war 159grant v edward anor 1986 1 ch 638green v green 1989 17 nswlr 343guthrie v millar millar v guthrie unreported sct wa library no 960663 970552hink v lhenen 1975 52 dlr 3d 301kais v turvey 1994 11 war 357lipman v lipman 1989 dfc 95 068mushcinski v dodds 1985 hca 78 1985 160 clr 583ogilvie v ryan 1976 2 nswlr 504pavey matthew pty ltd v paul 1987 hca 5 1986 162 clr 221pettitt v pettitt 1969 ukhl 5 1970 ac 777puie v public trustee queensland 1986 dfc 95 026re spear 1974 40 dlr 3d 284sabemo v north sydney municipal council 1977 2 nswlr 880shephard v cartright 1954 ukhl 2 1955 ac 431stinchcombe v thomas 1957 vicrp 66 1957 vr 509stowe v stowe 1995 15 war 363the commonwealth v verwayen 1990 170 clr 394waltons store interstate ltd v maher anor 1988 hca 7 1987 88 164 clr 3871commissioner kenneth martin qc regrettably yet another case party terminated de facto relationship forced litigate supreme court property dispute raise intricate equitable principle concerning resulting constructive trust financial value claim superior court standard modest although course vital significance party party forced litigate supreme court significant personal expense reason continued absence western australia legislation regulates orderly fashion financial affair party relationship relationship marriage 2 nola whitehead geoff pilgrim plaintiff defendant respectively action presently joint registered proprietor house land 29 kexby street balcatta kexby street towards end 1990 commenced de facto relationship lasted early 1996 july 1992 took joint transfer kexby street rural industry bank western australia r bank exercising power sale mortgagee respect thereof certificate title record became registered co proprietor 27 july 1992 first mortgage property registered favour r bank day 3 subsequently first mortgage r bank discharged 4th february 1994 replaced day new first mortgage favour national australia bank limited recorded encumbrance title mr pilgrim m whitehead lived kexby street july 1992 february 1996 relationship ended period shared respect full de facto relationship occupying premise company m whitehead two daughter prior relationship tammy chantelle mr pilgrim daughter erin prior de facto relationship 4 proceeding party seek equitable relief essentially relation present joint ownership kexby street also concerning array good ie chattel acquired period relationship 5 mr pilgrim contends resulting trust favour respect undivided legal half interest held m whitehead joint tenant respect kexby street contention relies upon equitable principle concerning circumstance party legally property one party fact contributed whole significant component purchase price acquisition property 6 convenient present purpose summarise equitable principle reference joint judgment mason brennan jj honour incalverley v green 1984 hca 81 1984 155 clr 242at 255 equity presumes trust favour person contributes whole purchase price property conveyed joint name another though strength presumption varies case case may confirmed rebutted qualified evidence intention 7 one situation presumption resulting trust arise financially non contributing joint tenant wife joint tenant contributed purchase price exception referred presumption advancement however high court incalverley v greenhas held majority de facto relationship presumption advancement case marriage point explained succinctly ipp j inatkinson atkinson v festic 1990 dfc 95 089 76 179 word presumption resulting trust contribution purchase property made one joint tenant alone contribution made proportion equal rebutted merely fact joint tenant live together de facto relationship presumption resulting trust capable rebutted evidence one joint tenant intended give joint tenant beneficial interest property see ipp j inatkinson supra 76 179 gibbs cj incalverley v green155 clr p246 8 circumstance present case however potential presumption resulting trust would need grounded upon showing fact unequal financial contribution made towards acquisition property first issue present proceeding 9 mr pilgrim contends made sole significant financial contribution towards purchase price kexby street hand m whitehead contends financial contribution towards acquisition kexby street essentially equal mr pilgrim case presumption resulting trust favour could ever arise 10 m whitehead go contend event overall continuing contribution throughout course mutual relationship exists evidence capable rebutting presumption resulting trust favour mr pilgrim contends event constructive trust favour extent beneficial one half interest kexby street alternatively general principle unconscionability unjust enrichment attained right equal one half interest kexby street content 11 first question determine whether respective financial contribution party toward acquisition kexby street equal unequal eye law loan r bank12 according mr pilgrim first noticed property 29 kexby street balcatta say noted advertisement sunday newspaper 1990 drove straight around look property noted needed lot work could see potential returned tell m whitehead intended purchasing property view living according mr pilgrim drove property mutually inspect house surround m whitehead give somewhat different version event view take thing issue saw property first irrelevant 13 mr pilgrim bank national bank leederville branch say shortly seeing kexby street met conversation manager mr mackie view securing finance mr mackie whilst rejecting mr pilgrim foreshadowed home loan application nevertheless indicated mr pilgrim doubt whether loan would granted outcome meeting mr mackie inconsequential also dispute whether m whitehead present meeting view take thing matter 14 mr pilgrim next discussion estate agent handling sale kexby street agent suggested mr pilgrim approach another bank subsequently led mr pilgrim approaching adelaide terrace branch r bank ensued typical discussion mr pilgrim housing loan need well business financial detail mr pilgrim told application little bit tight 15 dispute m whitehead present discussion r representative mr pilgrim version event representative speaking asked question using word effect girlfriend work response mr pilgrim replied worked r bank representative responded well right put application well problem representative apparently aware m whitehead receiving time payment employee mr pilgrim business amount 108 99 le tax 2 99 106 00 nett per week 16 joint loan application came made r bank mr pilgrim m whitehead loan application eventually approved 17 contract offer acceptance sale acquisition kexby street introduced evidence offer appears accepted early july 1992 named purchaser identified mr pilgrim m whitehead jointly document discloses purchase price 82 000 payable deposit 8 200 balance payable settlement document also indicates offer subject finance loan r bank amount 77 000 subsequently seems r bank approved loan 74 000 nevertheless transaction went ahead 18 uncontested fact r bank eventual loan 74 000 made mr pilgrim alone rather mr pilgrim m whitehead jointly thus every legal sense loan 74 000 liable law repayment mr pilgrim default made rendering proper repayment loan bank say instance mr pilgrim died m whitehead would fully exposed bank joint liability bank repayment loan significance central rejecting mr pilgrim submission alone provided purchase price acquisition kexby street 19 present case bear close similarity fact ofcalverley v green property acquired joint name de facto couple case loan money raised secured mortgage mr calverley m green jointly severally liable make repayment lender however accepted mr calverley fact would meet mortgage repayment fact duly mason brennan jj said arrangement pp257 258 understandable erroneous regard payment mortgage instalment payment purchase price home purchase price paid order acquire property mortgage instalment paid lender money pay mortgage price borrowed case price 27 250 18 000 borrowed mortgagee plaintiff defendant jointly balance paid defendant fund part proceed sale mt pritchard property thus plaintiff defendant contributed purchase price balkam hill property mortgaged property secure performance joint several obligation repay principal pay interest payment instalment mortgage payment purchase price payment towards securing release charge party created property purchased would agree view expressed english court appeal incrisp v mullings 1976 e g 730 p733 case material fact distinguishable present situation view defendant establish alone provided purchase price would whole price provided joint mortgage resulting trust whole therefore established party contributed purchase price could resulting trust favour defendant alone 20 applyingcalverley v greento present circumstance joint loan fund 74 000 applied towards acquisition kexby street law treated equal contribution mr pilgrim m whitehead towards purchase price 83 000 notwithstanding find burden meeting mortgage repayment mutually envisaged met barring unforeseen circumstance mr pilgrim 21 course de facto relationship loan r bank repaid full early 1994 mortgage r bank discharged time new joint loan taken 4 february 1994 national australia bank time 65 000 22 furthermore context funding improvement house kexby street including large game room patio pergola underground swimming pool outdoors area mr pilgrim m whitehead approached national bank mid december 1994 seeking increase joint loan 20 000 thus increasing loan 85 000 fresh loan mortgage documentation drawn signed recorded co equal responsibility joint borrower repayment fresh loan secured first mortgage kexby street 23 also case 1996 two loan 3 000 fund ducted airconditioning installation solar heater kexby street jointly taken national australia bank borrowing aggregate 6 000 made mr pilgrim m whitehead jointly took equal legal responsibility repayment loan secured kexby street 24 essence therefore acquisition kexby street took place july 1992 price 82 000 coupled usual acquisition cost stamp duty adjustment rate tax utility like amounting 1 000 acquisition substantially funded joint advance r bank amount 74 000 obviously purchase monies needed beyond loan 25 respect amount 3 000 obtained applied towards purchase kexby street find loan mr pilgrim m whitehead m whitehead long standing friend jacqueline edward husband 3 000 loan made informal basis subsequently repaid contra arrangement pursuant mr pilgrim work provided motor part service kind garage business vehicle vehicle mr edward nevertheless applyingcalverley v green fundamental point loan 3 000 also jointly made mr pilgrim m whitehead thus contribution 3 000 towards purchase price law equal contribution thus 83 000 approximately needed initially fund purchase kexby street real issue eye law minimum 77 000 loan fund provided party equal contribution 26 balance purchase price mr pilgrim say statement evidence access 2 000 money borrowed monies mother amount 7 000 m whitehead put matter little differently statement relation loan mr pilgrim mother say able obtain loan approximately 7 000 geoff mother subsequently repaid evidence loan mr pilgrim mother sparse documentation produced balance necessary would find remaining 6 000 approximately towards initial acquisition cost kexby street ie 83 000 provided mr pilgrim alone scheme thing however particularly light subsequent repayment refinancings mortgage drawing loan kexby street regard disparity approximately 6 000 initial acquisition cost kexby street real significance intent purpose find financial contribution made towards acquisition kexby street essentially equal party 27 upon fact largely undisputed seen case concluded law mr pilgrim solely funded acquisition kexby street since found party essentially contributed equally acquisition kexby street presumption resulting trust arising m whitehead interest kexby street favour mr pilgrim conclusion mason brennan jj incalverley v green purchase price 27 250 18 000 borrowed joint loan ie roughly two third joint contribution face disparity one third financial contribution incalverley v green high court found necessary consider apply equitable presumption honour mason brennan jj said p258 necessary consider another equitable presumption arises unequitable contribution purchase price governs present case unless opposing presumption displaces fact case rebut qualify unless equitable presumption trust displaced counter presumption rebutted qualified evidence intention party paying purchase price common intention party contribute price presumption determines conclusion reached stewart dawson co vict pty ltd v federal commissioner taxation carkeek v tate jones found party contributed purchase price conclusion conform relevant equitable presumption unless displaced rebutted qualified two purchaser contribute purchase property property conveyed joint tenant equitable presumption hold legal estate trust tenant common share proportionate contribution unless contribution equal note tolake v gibsonandlake v craddockin white tudor sleading case equity9th ed 1928 vol 2 p882 rigden v vallier robinson v preston aveling v knipe hill v hill 28 found unlike factual circumstance ofcalverley v green financial contribution toward initial acquisition kexby street essentially equal amount party event relatively soon acquisition initial loan paid financed national australia bank related subsequently even joint loan taken extent approximately 91 000 29 accordingly view mr pilgrim m whitehead hold kexby street tenant common equal share without imposition resulting trust mr pilgrim favour conclusion render strictly unnecessary go consider additional argument m whitehead directed towards rebutting presumption resulting trust seeking establish constructive trust m whitehead favour extent one half interest kexby street nevertheless issue fully argued appropriate address brief remark deference argument put nature relationship30 nola whitehead born november 1957 perth two daughter prior relationship namely tammy born 11th january 1975 chantelle born 13th october 1982 tammy lived m whitehead 1993 chantelle still life mother 31 1990 m whitehead living daughter bunbury working permanent part time barmaid receiving income supplement department social security also receiving child maintenance payment chantelle father amount 260 per month late 1990 moved perth daughter rented accommodation 5 white street osborne park time asset consisted household furniture ford fairlane motor vehicle small personal loan 5 000 paying instalment enable meet rent white street acquaintance one wayne reid became co tenant time mr reid friend employee geoff pilgrim 32 geoff pilgrim known m whitehead since sometime early 1980s occasionally slept together however m whitehead move perth 1990 living white street osborne park permanent relationship developed first met mutual interest speedway car racing held perth sometimes bunbury time m whitehead moved perth 1990 mr pilgrim difficulty within another de facto relationship living approximately 12 year period living m helena halse described 12 year relationship shaky mr pilgrim moved mutually rented accommodation m halse living place business garage premise relationship m halse produced daughter erin 1990 eight year old coincidentally erin age m whitehead daughter chantelle deterioration mr pilgrim relationship m halse meant living working garage business premise whilst paying m halse rent utility well child maintenance erin 33 1990 mr pilgrim business year operation mechanical repair garage closely identified mr pilgrim prominent car racing activity claremont speedway mr pilgrim kept speedway car garage premise could work spare time year business known various trading name including geoff pilgrim motor g j motor b p civic service station latterly geoff pilgrim racing proprietorship business howsoever called always resided mr pilgrim personally garage premise located beaufort street inglewood 34 mr pilgrim began lifelong association motor racing early age left school 14th birthday start mechanic apprenticeship enable qualify mechanical tradesman began business whilst aged 20 21 operated continuously thereafter main business profitable 35 late 1990 mr pilgrim found spending time m whitehead white street osborne park time erin mother m halse indicated mr pilgrim wished erin live residence garage obviously question mr pilgrim eight year old daughter caused mr pilgrim look suitable rental accommodation erin well m whitehead two daughter 36 9 april 1991 mr pilgrim alone entered rental agreement respect property 34 glenwood way balcatta took occupation premise m whitehead together tammy chantelle erin mr pilgrim paid expense renting contributing 120 00 per week food paying utility charge including telephone account dispute full de facto relationship existed mr pilgrim m whitehead time initially mr pilgrim ran garage business m whitehead looked household duty included attending need tammy chantelle erin m whitehead say accept loved cared erin erin daughter say speedway family fully supported encouraged mr pilgrim passion speedway considerable time commitment occupied term mr pilgrim working car preparation racing like encompassed late work mr pilgrim usually two evening per week saturday speedway season car racing event staged friday evening perth season usually friday night socialising mr pilgrim garage friend colleague person generally interest speedway racing 37 m whitehead typist training engaged employment time moved bunbury perth 1990 shortly commenced relationship mr pilgrim began attend regularly garage initially closer day whilst tried make useful around garage tidying taking message running errand discouraged mr pilgrim initially paid work mr pilgrim premise m whitehead say happy help loved mr pilgrim wanted make contribution family relationship established say subsequently woman employed clerical work business mr pilgrim kerry williamson left mr pilgrim encouragement m whitehead assumed clerical duty thought say would work three day per week business soon found constantly called business day eventually working full time mild issue disputed fact whether m whitehead got poorly kerry williamson whether m williamson merely decided wished leave move residence perth toodyay husband unnecessary form view issue m whitehead take clerical work kerry williamson left undoubtedly make valuable contribution employee towards running mr pilgrim mechanical repair business book work ran errand required answered telephone generally made useful find really disputed service freely indeed gratefully accepted mr pilgrim 38 documentary evidence tendered trial discloses business commenced pay m whitehead gross salary 108 99 per week net 106 per week 25th october 1991 notation made relevant book exhibit 1a p137 record writing kerry williamson concerning m whitehead employed 21 10 91 casual clerical general duty equal 12 11 per hour 12 11 x 9hrs 108 99 payment salary continued two year thereafter period business began rather le well time ceased draw wage given housekeeping monies approximately 150 00 per week mr pilgrim 39 domestic financial arrangement mr pilgrim drew 200 00 per week business would pas 150 00 m whitehead housekeeping time drawing formal wage business net 106 per week m whitehead say mr pilgrim would top net salary 40 00 make figure approximately 150 00 sum would main fully expended weekly housekeeping family unit 40 m whitehead ceased draw wage business mr pilgrim instead would pay full 150 00 per week however m whitehead duty commitment garage business weekly basis employee never really altered substance housekeeping monies 150 00 m whitehead would add monies received respect maintenance erin approximately 80 00 per week well government family allowance payment receivable upon basis family unit comprising time mr pilgrim m whitehead erin chantelle source generated pool fund expended weekly maintenance running household kexby street balcatta suggested fund anything fully utilised suggestion party derived saving let alone substantial saving pool monies essentially devoted meeting household expense ongoing basis 41 factual dispute raised precise number hour m whitehead actually worked garage business weekly basis serious dispute contribution make business regular freely received economic benefit business 29 kexby street balcatta42 already mentioned acquisition occurred 1992 made context suited domestic need party m whitehead undertook household duty including cooking cleaning decorating attending need chantelle erin conveyed child school car main picked day school find organised childrens extra curricular activity spent considerable time night erin assisting homework find made significant contribution towards erin schooling requirement helping homework facilitated erin participation mathematics enhancement course kumon erin took sharpen mathematical skill dispute emerged trial whether erin child special need find necessary resolve issue find m whitehead dedicated significant time weekday afternoon assisting erin academically homework well erin emotional need problem basis regarded erin daughter dedicated assisting whatever extent called 43 conclude m whitehead contribution family unit kexby street necessary substantial economically valuable mention encouraged freely accepted mr pilgrim deny equally significant contribution mr pilgrim made vital contribution relationship bread winner dispute effort within business generated fund ie apart maintenance payment government assistance paid bill blended family mr pilgrim financial contribution undeniable meeting rent glenwood way subsequently meeting mortgage secured loan payment kexby street balcatta furthermore mr pilgrim energy effort responsible building extension improvement ultimately carried kexby street mr pilgrim trade connection business architect bricklayer various trade person allowed plan progress eventually implement work necessary undertaken order build large game room extension patio pergola outdoor swimming pool progressively installed kexby street acquisition 44 mr pilgrim busy diligent worker garage business operated day 7 30am 6 30pm furthermore hobby enjoyed working speed car garage business hour regularly participated speedway racing event occupying significant proportion recreation time family would main spend sunday family day generally choosing activity would allow spend time child observe tammy m whitehead elder daughter moved kexby street approximately 1993 45 fact need added circumstance already related whereby first ensuing loan fund acquisition improvement kexby street jointly taken fact mind go prove common intention party inference action conduct share equally acquisition enjoyment kexby street balcatta content family unit intention inferred joint acquisition kexby street term offer acceptance subsequent loan application jointly made m whitehead contribution towards obtaining initial loan purchase kexby street balcatta r bank find essential one participating loan application mr pilgrim acquisition kexby street may occurred furthermore satisfied evidence family unit operating kexby street balcatta upon basis essentially joint venture m whitehead mr pilgrim made equally valuable distinctly different contribution mr pilgrim contribution identified mainly financial physical relation improvement extension work m whitehead contribution different character nevertheless equal importance glue keep household running smoothly whilst mr pilgrim attended demand business speedway participation furthermore m whitehead contributed economically running mr pilgrim garage business throughout period de facto relationship upon cessation formal wage payment 106 net per week business continued effectively labour business employee work remuneration save 150 00 housekeeping payment per week fully expended funding joint need household gladly spirit mutual endeavour enjoyed pursued family unit 46 view party contribution made circumstance state certificate title kexby street also accurate reflection equitable position conclude value contribution towards acquisition occupation maintenance running kexby street balcatta equal furthermore find evidence common parlance party orally referred kexby street house speaking mutual residence speaking company friend third party 47 circumstance find common intention 29 kexby street held equally common intention would sufficient rebut resulting trust otherwise found exist favour mr pilgrim different circumstance nevertheless primary finding course resulting trust found present fact termination relationship chattels48 according m whitehead commencement de facto relationship november 1990 possessed house full furniture ford fairlane motor vehicle say mr pilgrim time owned personal effect number vehicle motor bike pool table upright freezer business geoff pilgrim racing m whitehead ascribes ultimate deterioration relationship serious car accident involved march 1994 say late 1995 problem relationship decided separate initially moved back room house kexby street whilst looking suitable premise rent done moved shortly thereafter made arrangement attend kexby street sister jacquie edward collect thing appear apprised mr pilgrim intention regard although said time suspected might return premise view taking possession good mr pilgrim 3 february 1996 arranged sister judy attendance kexby street moreover earlier made arrangement lock changed unbeknown m whitehead 49 consequently m whitehead arrived kexby street friend m edward another friend trailer 3 february 1996 unable enter house request outside judy allow entry denied something stand arose m whitehead colleague effectively denied access premise mr pilgrim sister remaining steadfast inside door locked shortly afterwards mr pilgrim arrived house rather tense discussion ensued belonging m whitehead would permitted take house appears version event ensued stressful emotional concerned 50 mr pilgrim eventually permitted m whitehead access home carefully watched item removed trailer m whitehead colleague procured assist exercise according statement evidence jacqueline edward situation follows 60 number item already lying back lawn main item lounge washing machine 61 geoff opened house walked around whilst nola sister collected number thing chantelle furniture personal effect nola bed old tv fridge old microwave nola personal belonging 62 geoff hovering around telling u take abusing u 51 according mr pilgrim m whitehead took refrigerator purchased using certain credit arising favour insurance claim bedroom suite kitchen suite lounge room suite washing machine personal television video sound system well computer system valued 500 mr pilgrim paid unused cutlery set mr pilgrim purchased full set stainless steel pot pan mr pilgrim purchased oil painting purchased mr pilgrim 70 good bed linen outdoor setting including large umbrella valued 600 52 dispute m whitehead also kept magna sedan motor vehicle purchased proceeds sale ford fairlane retained course relationship magna sedan extensively worked mr pilgrim garage m whitehead acknowledges benefited financially addition work carried magna including addition power steering new tyre reconditioned gearbox reconditioned engine 53 claim respect chattel brought basis putting magna sedan one side 19 item various chattel identified one way another acquired course de facto relationship evidence adduced value majority item m whitehead make specific detinue claim relation particular item raise global claim payment 5 000 respect chattel 54 counsel m whitehead essentially relied upon change level home content insurance cover taken party nzi insurance two year period first insurance period august 1992 august 1993 content insurance situation risk identified 29 kexby street balcatta 30 000 level content insurance increased amount 50 000 period august 1993 august 1994 invited infer increase 20 000 sum insured contends respective period mutual value party household content increased level 50 000 asked go infer m whitehead interest mutually acquired chattel period de facto relationship would valued order half ie 25 000 asked conclude notwithstanding reliable evidence led value item removed m whitehead kexby street 3 february 1996 le 5 000 paid mr pilgrim compensate remaining value interest mutually acquired chattel taken kexby street termination relationship 55 find state evidence value various chattel unsatisfactory said reliable evidence supplied value chattel removed kexby street m whitehead reliance upon contrasting amount sum insured respect home content insurance view inherently unreliable exercise take account potential insurance home content process evidence led basis upon estimate sum insured insurance period arrived circumstance cannot ascribe reliability view figure plaintiff carry onus satisfy balance probability value interest chattel really left end process position asked embark upon exercise guess work prepared accept invitation reject plaintiff claim global claim 5 000 respect chattel relief56 de facto relationship terminated three year since time mr pilgrim done improvement renovation work kexby street including tiling game room floor installing spa tiling bathroom erecting brick screen wall paving back house capital improvement m whitehead acknowledges contributed furthermore since separation met mortgage repayment respect joint loan taken 57 inatkinson atkinson v festic ipp j made declaration plaintiff defendant tenant common property equal share ordered property sold net proceeds divided party equal share 58 present case counsel respective party agreed value kexby street 3 february 1996 154 000 counsel m whitehead made plain opening relief sought relation kexby street respect one half equity house land 3 february 1996 allowing repayment secured loan specific relief sought plaintiff declaration trust relation one half equity house land consequential order relating procuring discharge m whitehead obligation presently subsisting joint loan mortgage taken respect kexby street counsel plaintiff told order cast following line order made murray j inthompson v winter unreported sct wa library 950644 28 november 1995 andthompson v winter unreported sct wa library 950710 20 december 1995 satisfied circumstance principle order appropriate adjustment way equitable charge secure m whitehead interest kexby street reasonable period pending either payment interest property sale counsel plaintiff also seek interest three year period respect value interest held kexby street m whitehead since m whitehead claiming present value one half beneficial interest house land kexby street date judgment case think appropriate award interest claimed compensate unrealised potential value m whitehead interest kexby street year trial 59 inatkinson v festic relief encompassed declaration beneficial interest date trial inherently embraced increase market value period separation judgment date mr moser eschewed relief character properly believe basis party indeed separated three year mr pilgrim since time met commitment relating kexby street course made capital improvement referred 60 concluded m whitehead held one half beneficial interest kexby street 3 february 1996 appropriate interest pursuant provision ofs32of thesupreme court actbe awarded compensate denial capacity utilise capital value beneficial interest property reasonable time separation date judgment thus think appropriate interest awarded commence three month date upon m whitehead removed chattel kexby street 3 february 1996 word interest run 3 may 1996 judgment rate eight percent 8 per annum 61 value equity agreed valuation kexby street 3 february 1996 145 000 state loan national bank 3 february 1996 79 856 54 leaving joint equity 65 143 46 fifty per cent figure 32 571 73 award interest 8 per cent 3 may 1996 judgment 62 subject hearing counsel party would propose grant following relief 1 declare order piece land known portion perthshire location au lot 239 plan 8934 particularly described certificate title volume 1936 folio 777 commonly known 29 kexby street balcatta kexby street 3 february 1996 held upon trust benefit plaintiff defendant tenant common equal share b equitable charge subsist plaintiff favour extent securing amount due plaintiff referred para 2 order equitable charge shall priority registered encumbrance kexby street bearing date later 1 february 1999 2 within 90 day defendant pay plaintiff sum 32 571 73 plus interest eight percent 8 per annum 3 may 1996 date payment plaintiff amount b procure discharge plaintiff loan mortgage obligation respect kexby street particularly respect mortgage f442982 national australia bank limited 3 upon compliance defendant order 2 trust equitable charge mentioned order 1 shall determined property kexby street shall vest defendant absolutely plaintiff expense defendant shall take step sign documentation shall necessary enable interest property transferred absolutely defendant 4 event defendant pay plaintiff amount referred order 2 within 90 day kexby street sold proceeds applied first meeting secured loan repayment commitment next payment amount lastly balance defendant defendant bearing cost sale 5 declare order chattel property currently possession plaintiff removed kexby street balcatta 3 february 1996 vest absolutely 63 hear party precise term order appropriate order relation cost |
1002468 [2012] MRTA 1234 (4 May 2012).txt | 1002468 2012 mrta 1234 4 may 2012 last updated 16 may 20121002468 2012 mrta 1234 4 may 2012 decision recordapplicant mr phra udom salaomrt case number 1002468diac reference clf2010 38842tribunal member kira raifdate 4 may 2012place decision sydneydecision tribunal affirms decision grant applicant cultural social temporary class te visa statement decision reasonsapplication reviewthis application review decision made delegate minister immigration citizenship refuse grant applicant cultural social temporary class te visa unders 65of themigration act 1958 act applicant applied department immigration citizenship cultural social temporary class te visa 9 november 2009 delegate decided refuse grant visa 16 march 2010 notified applicant decision review right letter dated 16 march 2010 delegate refused visa application applicant satisfy cl 428 211 schedule 2 themigration regulation 1994 regulation delegate found applicant satisfy cl 428 211 applicant holder substantive visa time application delegate satisfied met schedule 3 criterion 3004 applicant applied tribunal 8 april 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 cultural social temporary class te visa contained following subclass subclass 411 exchange subclass 416 special program subclass 420 entertainment subclass 421 sport subclass 423 medium film staff subclass 428 religious worker item 1205 4 schedule 1 regulation subclass respect claim made subclass 428 criterion subclass 428 visa set inpart 428of schedule 2 regulation one primary criterion time application applicant must holder substantive visa applicant holder substantive visa applicant must meet certain schedule 3 criterion cl 428 211 relevantly criterion 3004 provides 3004if applicant ceased hold substantive criminal justice visa 1 september 1994 b entered australia unlawfully 1 september 1994 subsequently granted substantive visa minister satisfied c applicant holder substantive visa factor beyond applicant control compelling reason granting visa e applicant complied substantially condition apply applied last entry permit held applicant condition applicant breach solely expiry entry permit b subsequent bridging visa ii condition apply applied last substantive visa held applicant condition applicant breach solely visa ceased effect b subsequent bridging visa issue case whether applicant meet schedule 3 criterion 3004 claim evidencethe tribunal department file relating applicant tribunal also regard material available range source applicant national thailand born december 1976 according primary decision record copy applicant provided application review applicant arrived australia 7 july 2009 visa effect 7 october 2009 day applicant approached diac requested stay visitor january 2010 intended engage religious activity noted applicant counselled requirement must genuine visitor apply appropriate visa decided proceed applicant became unlawful non citizen upon expiry visa 8 october 2009 applied class te religious worker visa 9 november 2009 stated application form proposed stay october 2009 october 2011 applicant sponsored application wan buddharangsee inc submission accompanied application applicant confirmed granted subclass 456 visa 3 july 2009 entered australia 7 july 2009 visa allowed three month stay 7 october realised visa expiring attempted lodge application subclass 676 visa diac sydney counter staff advised lodge application followed advice applicant stated respect schedule 3 criterion buddhist monk devotes entirely spiritual matter welfare people attending monastery applicant referred pam meaning beyond applicant control 3004 stated unique circumstance case clearly due factor beyond control applicant also submitted compelling reason grant visa stated extremely difficult temple obtain monk due long training involved strict lifestyle temple large number people regularly attend applicant compelled leave australia would serious consequence activity temple welfare attending 16 march 2010 delegate decided refuse grant visa applicant delegate found applicant met clause 3002 application made within 12 month expiry visa however relation clause 3004 delegate considered reason put forward applicant accept factor beyond control delegate noted applicant prevented lodging application 7 october 2009 informed diac staff wished apply visitor visa would demonstrate intended genuine visit give consideration another type visa chose proceed application delegate noted applicant claim devotion spiritual matter welfare people found would generate factor beyond applicant control delegate found applicant failed demonstrate became unlawful non citizen factor beyond control delegate also found compelling reason granting visa overall delegate satisfied applicant met clause 3004 applicant sought review delegate decision 8 april 2010 provided tribunal copy primary decision record 17 april 2012 applicant provided number statement support application outlining contribution made australia theapplicant appeared tribunal 17 april 2012 give evidence present argument tribunal hearing conducted assistance interpreter thai english language applicant represented relation review registered migration agent oral evidence tribunal summarised applicant confirmed entered australia short stay business visa expired october 2009 made current application 9 november 2009 confirmed hold visa october 2009 business visa expired time made current application november 2009 tribunal explained requirement item 3004 c asked applicant believed factor beyond control result hold substantive visa time made application applicant said time abbot temple asked secretary document secretary temple collected paperwork gave document representative week visa expired said secretary lost application day visa due expire know much secretary responsible everything tribunal referred applicant submission diac 21 october 2009 tribunal noted submission applicant explanation completely different one offered tribunal submission made mention instructing secretary prepare paperwork secretary losing paper applicant said secretary took immigration make application told nothing worry tribunal noted submission 21 october 2009 stated approached diac told apply visitor visa appropriate circumstance went away without making application made application week later applicant said came told people wanted apply religion worker visa easy apply visitor visa first tribunal noted explanation happened approached diac completely different explanation offered tribunal noted submission 21 october 2009 made mention secretary preparing losing paper submission stated realised around 7 october 2009 visa due expire went diac apply visitor visa suggesting least week visa due expire decided apply religious worker visa instructed secretary applicant said know anything asked secretary paper beyond control tribunal informed applicant needed satisfied occurred given divergence account tribunal may satisfied situation secretary occur tribunal pointed secretary present give evidence provided supporting statement confirm applicant account applicant said secretary korea tribunal pointed could still provided statement even korea applicant representative undertook arrange statement tribunal asked applicant failed mention situation secretary submission diac 21 october 2009 instead claimed realised shortly visa due expire planned apply visitor visa applicant said knew nothing asked secretary everything told secretary visa expire secretary took see immigration representative kept asking secretary visa secretary told problem later kept quiet tribunal asked applicant happened approached diac said gave document representative went immigration probably 11 october get bridging visa stamped applicant said instructed secretary week visa expired saw representative day visa expired tribunal pointed month time visa expired made application applicant said know secretary responsibility applicant said whenever asked secretary visa said problem tribunal asked whether asked sign application form pay fee provide photograph applicant said asked sign secretary going arrange everything tribunal referred submission 21 october 2009 claim went immigration last day visa expired planned lodge visitor visa make application would obvious would visa following day applicant said secretary took immigration interview applicant said initial business visa application prepared somebody temple said applying first visa tried make application made mistake refused help application tribunal asked applicant made mention secretary assisting application time hearing said mention secretary secretary one arranged everything tribunal pointed explain factor beyond control provided submission department made mention secretary application refused diac delegate satisfied factor beyond control still made mention secretary dealing tribunal applicant said know explain tribunal asked applicant believed factor beyond control result hold visa made application said know tribunal asked applicant believed compelling reason grant visa applicant said know comply law know approach gave document secretary case going two year know tribunal asked applicant temple said performs activity contributes community maintains culture tradition thai people buddhist community paid support temple fund maintained donation applicant provided tribunal copy passport bridging visa subject condition 8101 tribunal asked considered activity temple work said employment tribunal asked whether activity normally attracts remuneration applicant representative said monk take vow poverty would never paid activity monk allowed even touch money applicant representative referred supporting reference submitted tribunal respect existence compelling reason stated desperate shortage monk applicant taken vow lead life self denial highly regarded everything stated truth cannot take money engaged employment respect circumstance beyond control representative referred reasoning insu v miac 2007 fmca 318at 17 18 refers objective subjective element representative submitted case temple hierarchy applicant totally obedient abbot secretary speaks little english devotes fully temple put hand secretary happened 7 october 2009 reported primary decision applicat went diac secretary could understand going speak english life completely different lifestyle thrown completely power secretary would unheard otherwise unique nature work background looking subjective objective factor factor beyond control merely forgetfulness misunderstanding whichsurefers circumstance different important community lifestyle circumstance life put circumstance beyond control life tradition absolute obedience people monastery would never speak untruth monk 26 april 2012 tribunal received submission applicant applicant referred evidence lack english together strict rule govern conduct buddhist monk meant arrangement respect visa extension left secretary temple currently korea applicant stated contact secretary able obtain written statement stated provided document secretary one week visa expired 7 october 2009 attended diac 7 october 2009 secretary understand passed diac officer secretary understand english applicant referred submission diac 21 october 2009 stating devotes entirely spiritual matter welfare people attending monastery noted reference diac policy respect schedule 3 criterion stated buddhist monk bound strict vow obligation follow direction senior monk situation led ceasing hold substantive visa beyond control applicant stated continued activity monk holding bridging visa monk took vow poverty paid even allowed touch money activity amount work purpose regulation applicant referred reference submitted establish highly regarded monk shortage type religious worker australia submitted compelling reason grant visa applicant also provided information religious practice finding reasonsthe issue tribunal whether applicant meet schedule 3 criterion 3004 submission 21 october 2009 applicant stated entered australia 7 july 2009 holder business short stay class uc visa primary decision record copy applicant provided tribunal indicates visa ceased effect 7 october 2009 nothing tribunal suggest applicant granted visa made application religious worker visa 22 october 2009 tribunal find applicant holder substantive visa time application made tribunal find last substantive visa held applicant one mentioned cl 428 211 b accordingly applicant must satisfy public schedule 3 criterion 3004 delegate satisfied applicant holder substantive visa factor beyond control applicant argues submission diac factor exist approached diac 7 october 2009 last day substantive visa expired intention applying visitor advised proceed application tribunal accepts applicant approached diac 7 october 2009 intending lodge application also accepts spoken diac staff decided proceed application visitor visa however tribunal accept establishes existence factor beyond applicant control tribunal accept beyond applicant control approach diac last day period visa effect tribunal accept beyond applicant control make inquiry conduct research option available form view visa apply make application last day visa expiry period tribunal also accept beyond applicant control proceed application visitor visa even advised diac staff suitable application circumstance tribunal view applicant ample time three month entry australia expiry substantive visa make necessary inquiry visa matter determine visa apply tribunal view reason made application 7 october 2009 fact chose approach diac last day visa effect time previous three month tribunal view factor beyond applicant control applicant submission tribunal substantially different claim entrusted application secretary temple accordance temple hierarchy also limited english knowledge migration requirement claim visa due expire secretary undertook prepare necessary paperwork lost paper done claim secretary told everything okay applicant explained satisfaction tribunal account occurred october 2009 differs much explanation offered diac submission 21 october 2009 meaningful explanation offered submission 21 october 2009 make mention secretary applicant reliance secretary prepare paperwork application meaningful explanation offered description event offered either diac time processing application tribunal time prior hearing despite fact obvious applicant read primary decision earlier explanation sufficient also despite fact applicant ably represented department tribunal neither satisfactorily explained submission diac 21 october 2009 applicant claim realised 7 october 2009 visa expiring attempted lodge another application informed tribunal asked secretary lodge application well visa due expire reason tribunal considerable concern applicant evidence tribunal tribunal regard statement phramaha wirat chaipanya assistant abbot wan buddharangsee confirms applicant given passport relevant document oversighted despite concern noted tribunal prepared accept applicant discussed issue visa secretary temple held senior role tribunal also prepared accept secretary undertook assist applicant preparation paperwork however tribunal accept failure lodge application expiry substantive factor beyond applicant control even despite temple hierarchy applicant would aware time substantive visa due expire responsibility ensure relevant paperwork new application prepared expiry visa tribunal accepts subject temple hierarchy obedient senior tribunal accept applicant incapable reminding secretary upcoming expiry visa need deal situation time action taken tribunal accept action applicant would perceived act disobedience significantly applicant claim attended diac office secretary visa expired due lack english could understand conversation applicant would aware date expiry substantive imminent would aware made another application visit diac office tribunal accept beyond control point make application instruct secretary make application even secretary failed take action day tribunal accept evidence time application applicant holder substantive visa factor beyond control tribunal accept applicant meet 3004 c schedule 3 criterion 3004 tribunal accept applicant meet cl 428 211 reason tribunal satisfied applicant meet cl 411 211 cl 416 211 420 211 421 211 cl 423 211 applicant provided several statement support application referring valuable community work performs tribunal accepts evidence however found applicant meet cl 428 211 tribunal discretion waive criterion conclusionsthe tribunal found applicant meet schedule 3 criterion 3004 cl 428 211 given finding made tribunal affirms decision review decisionthe tribunal affirms decision grant applicant cultural social temporary class te visa kira raifsenior member |
Boulevard 109 [2004] QBCCMCmr 143 (16 March 2004).txt | boulevard 109 2004 qbccmcmr 143 16 march 2004 last updated 30 september 2005reference 0088 2004interim order adjudicatormade part 9 chapter 6body corporate community management act 1997number scheme 5875name scheme boulevard 109address scheme 109 bundilla boulevard mt creek qld 4557take notice pursuant application made abovementioned act ella adames owner lot 3 hereby orderthat within two 2 month date order body corporate secretary must call hold extraordinary general meeting body corporate may call meeting earlier three 3 week date order consider motion engage body corporate manager employ person carry body corporate administrative task b employ gardener maintain common property c impose interest penalty payment contribution unpaid due date must forward copy minute meeting soon possible meeting held orderthat secretary must send copy order accompanying reason lot owner within seven 7 date order statement adjudicator reason decision ref 0088 2004 boulevard 109 ct 5875the applicant ella adames lot 3 sought following order adjudicator thebody corporate community management act 1997 theact 1 professional body corp management firm employed asap 2 gardener groundsperson hired soon possible save remaining garden ground 3 body corp fund readjusted owner unit 2 10 00 week payable new gardener beginning october applicant also made application following interim order adjudicator 1 gardener groundsperson hired asap save remaining garden ground 2 definite time date general meeting set asap 3 fourth party impartioel available attend meeting jurisdiction dispute owner applicant adames body corporate respondent concerning condition common property garden lawn propriety fee payable two owner appointment professional body corporate manager properly administer body corporate matter falling within dispute resolution provision legislation seesections 227 228and276of act general power adjudicator making order section 276 1 provides adjudicator may make order equitable circumstance including declaratory order resolve dispute context community title scheme claimed anticipated contravention theactor community management statement orb exercise right power performance duty thisactor community management statement orc claimed anticipated contractual matter engagement person body corporate manager service contractor community title scheme ii authorisation person letting agent community title scheme order may require person act prohibit person acting way stated order section 276 2 theact adjudicator order may contain ancillary consequential provision adjudicator considers necessary appropriate section 284 1 theact application submission order shall addressing interim order sought leaving substantive issue determined final order applicationin accordance withsection 243of theact copy application provided respondent body corporate committee owner invitation respond matter dispute raised application submission made raymond john thomas owner lot 2 submission also lodged stefan john pokitko purportedly owner lot 1 secretary body corporate committee although explicit statement pokitko also treasurer therefore solely constitutes committee seems case file document however stage accept personal submission though affect proceeding determine interim application briefly information supplied applicant owner submission follows applicant submitted number photograph common property showing lawn garden badly overgrown obviously unattended time complains absence thomas scheme common property unattended telephone message secretary pokitko situation largely unanswered extraordinary general meeting 28 february 2003 egm motion passed pay 10 week owner maintaining common property usually thomas 10 week person administering accounting bookkeeping body corporate usually pokitko constituting half body corporate budget state pokitko thomas owner time took ownership asked question concerning operation body corporate disposition money appeared begrudge intrusion belief body corporate administered impartial professional overcome bias provide professional service thomas absent scheme since late last year following passing wife personal illness every intention returning better state voluntarily tended garden lawn rubbish bin approximately 13 year unaware problem receiving copy application express support pokitko pokitko state issue lawn garden resolved order became overgrown situation thomas theft lawnmower heavy rainfall however became clear thomas would returning time took maintenance task thomas paid since november 2003 pokitko filling thomas absence however pokitko wish continue would support engagement gardener thomas continues absent reject applicant complaint returned message received one telephone call regarding lawn garden state many difficulty dealing applicant behaviour including delay paying contribution submitting copy letter evidence abuse tradespersons employed install garden edge mowing strip pokitko wish annual general meeting end april determination boulevard 109 registered building unit plan termed abuildingformat plan 14 august 1989 comprises three residential lot regulated thebody corporate community management small scheme module regulation 1997 small scheme module appear intentional contravention legislation disregard owner right matter raised applicant described party certainly thomas rendered many year unpaid service body corporate recently offered payment task due series unfortunate circumstance unable continue care common property photograph submitted applicant show result unsatisfactory state affair remedied temporary manner whether thomas return soon indeed whether want resume caretaking mean body corporate may need employ gardener applicant suggests resolved forthcoming ordered meeting either gardener engaged adequate provision made thomas whoever unavailable regard payment 10 per week thomas garden lawn maintenance reasonable sum would likely higher contracted regard concurrent body corporate decision pay accounting bookkeeping also 10 make two observation firstly smaller scheme owner carry duty ie secretary treasurer duty seems case done without payment though open body corporate reimburse expense however body corporate pay fee service must regard tosection 14of theactandsections 46and47of small scheme module 14 meaning body corporate manager person body corporate manager community title scheme person engaged body corporate employee body corporate supply administrative service body corporate whether person also engaged carry function committee executive member committee body corporate 46 form engagement sm 78 1 engagement person body corporate manager service contractor void engagement comply requirement stated subsection 2 2 engagement must writing b state term engagement including term begin end c state function body corporate manager service contractor required authorised carry state basis payment body corporate manager service contractor service worked example paragraph 1 body corporate manager payment could calculated basis amount per lot 2 body corporate manager payment could include charge calculated basis stated amount per telephone inquiry stated amount attendance fee additional general meeting 3 engagement must form law 47 term engagement body corporate manager sm 80 1 term engagement person body corporate manager allowing right option extension renewal must longer 1 year 2 term purport longer 1 year taken 1 year person engaged employee provide service specified undersection 14of theact taxation superannuation insurance ramification body corporate assuming body corporate wish acquire pokitko service manner party caught requirement ofsection 46in meet formality written agreement containing appropriate function minute egm show done secondly payment 520 per annum 100 200 le professional body corporate manager would charge administer body corporate unaware pokitko level expertise payment 520 pa seems large administration owner 3 lot professional usually charge around 150 per lot per annum minimum charge applied number lot small may maintenance pokitko carry task sense duty may happy dispense whatever case decision merely pay task accordance legislation unless evidence employee arrangement properly made support payment void might also point party majority vote need careful voting paid appointment benefit cannot regarded obtained unfair benefit body corporate need also consider matter body corporate administration forthcoming meeting would also point viewing minute egm resolution levy 10 late payment fee also void financial management provision small scheme module specific disincentive may applied body corporate owner pay contribution time section 58provides adiscountto applied timely payment maximum 20 amount payable section 59provides imposition apenalty paymentfor month contribution unpaid beyond due date payment maximum 2 5 per month simple interest late payment fee 10 per month part thereof purported imposed body corporate contravention 2 5 limit therefore void may remedied forthcoming meeting lastly submission pokitko state next agm body corporate organised return mr thomas end april 2004 section 37of small scheme module requires annual general meeting must held within 3 month end financial year know timing body corporate financial year though note minute egm show last held 17 july 2002 contribution period 1 6 03 31 05 04 take end financial year 31 may thereby requiring annual general meeting held june 31 august year meeting proposedby end april 2004will accord legislation summary made order requiring meeting extraordinary general meeting held within 2 month date order also ordered copy interim order must sent owner owner may promptly forward motion want included agenda meeting meeting cannot called earlier 3 week order date allow owner time submit motion secretary well aware result interim order application meeting shall deal question whether gardener employed whether body corporate manager engaged person employed penalty payment applied owner including applicant may submit motion matter see fit made order fourth party allowed attend meeting matter person attendance consider shall reserve determination final order application meeting held ordered copy meeting supplied secretary soon possible meeting finally neither pokitko thomas take reason criticism handling body corporate maintenance duty respectively body corporate able self manage body corporate especially small scheme purpose module however ill feeling inability owner carry duty administration impartial outsider skilled legislation beneficial office conduct information section telephone service freecall 1800 060 119 assist owner |
Simms, Soat Eng [2000] MRTA 1209 (18 May 2000).txt | simms soat eng 2000 mrta 1209 18 may 2000 last updated 16 june 2000 2000 mrta 1209catchwords prescribed health criteriareviewapplicant mr soat engsimmsvisa applicant abovetribunal migration review tribunalpresidingmember ricky johnstonmrt file number a99 02900dima file number w93 0109056date decision 18 may 2000delivered perthdecision tribunal remit application department immigration multicultural affair direction applicant met requirement item 4007 schedule 4 migration regulation 1993 satisfies criterion 801 733 schedule 2 regulation statement decision reasonapplication review1 application review decision made delegate minister immigration multicultural affair delegate mr soat eng simms applicant indonesian national born 22 september 1962 applicant applied class 801 spouse entry visa permanent residency australia 12 april 1994 delegate decision refuse application made 6 may 1997 applicant deemed met item 4007 schedule 4 regulation criterion 801 733 jurisdiction standing2 4 june 1997 application review decision refuse permanent residency applicant lodged migration internal review office miro 1 june 1999 application review deemed application properly made tribunal pursuant section 40 1 themigration legislation amendment act no1 1998 |
R v Ortiz [2013] NSWDC 282 (22 August 2013).txt | r v ortiz 2013 nswdc 282 22 august 2013 last updated 3 march 2014district courtnew south walescase title r v ortizmedium neutral citation 2013 nswdc 282hearing date 22 08 2013decision date 22 august 2013before norrish qcdecision robbery company 30 5 2012 sentenced term imprisonment 3 year 9 month robbery company 12 06 2012 sentenced term imprisonment 5 year 3 month non parole period 2 year 6 month catchword criminal law sentence plea guilty accessory fact robbery special circumstanceslegislation cited crime sentencing procedure act 1999cases cited r v hemsley 2004 nswcca 228dpp cth v de la rosa 2010 nswcca 194veen 2 v queen 1988 hca 14 1988 164 clr 465r v olivieri 2007 nswsc 142r v murchie 1999 nswcca 424r v lesi 2004 nswcca 63r v stanley 2003 nswcca 233r v henry 1999 nswcca 111 1999 46 nswlr 346r v thomson houlton 2000 nswcca 309 49 nswlr 383pearce v r 1998 hca 57 1998 194 clr 610category sentenceparties crownarmando salina ortiz offender representation solicitor director public prosecutionslegal aid nswfile number 2012 00195297sentencehis honour armando salina ortiz appears today sentence relation two offence accessory fact robbery company first offence time committed 30 may 2012 particularised happening killara robbery company robbery company person unknown man called li jun wei 200 000 worth assorted jewellery outline fact relation matter particular accessorial liability reference charge incite move procure counsel hire command said person although liability prisoner principal criminal scheme involved second offence time accessory fact robbery command occurred haberfield 12 june 2012 robbery company two person chi ho po seng choi certain property namely 750 000 worth assorted jewellery 20 000 australian currency property man king jewellery company ltd china chinese passport laptop computer printer rolex watch worth 6 000 property po seng choi particular accessorial liability identical first charge crown case could conclude prisoner principal planning preparation obviously executive offence given plea accessory fact deal fact matter flow context material case moment go without saying regard actual robbery company significant value property stolen particular people serious example accessorial liability fact robbery company regard ultimate crime committed course analyse moment cannot conclude prisoner knew precisely property taken case clear must known would substantial property obtained given degree obvious planning went least part given fact particularly relation second charge already participated first count matter speculation precisely knew occurred robbery company occurred may actually stolen cannot fill gap evidence speculation given admission far prepared make admission contact person relation commission offence seems completely beyond understanding human affair excuse explanation prisoner second occasion became accessory fact aware substance occurred end day make difference sentenced accordance agreed fact much point significance moral culpability clearly understood course prisoner convicted principal serious offence penalty imposed would substantially greater penalty imposing prisoner time commission offence understand matter twenty five year age born 14 january 1987 thus beginning 2012 calculation would turned twentyfive came australia 10 february 2012 understand alias fact referred aka jorge andre prieto torres holding mexican passport number g08316645 would understand legally entitled citizen columbia proffered explanation whether true unable say psychologist columbians find difficult come australia visa country reputation assume matter point easier person columbia come australia mexican passport thus reality legally entitled country think fairly put misled australian authority true identity importantly true nationality fact reveal 28 may 2012 unknown person purchased motor vehicle red maroon toyota camry sedan private seller registration number wky 519 another motor vehicle described registration number vly 731 purchased 30 may 2012 unknown person private seller maroubra area event 30 may 2012 giving rise first count victim parramatta car park motor vehicle stated fact vehicle 2 04pm shortly refer wky red maroon toyota entered westfield shopping centre driver unknown however front passenger coaccused horacio javier laguna cantor also known manuel leonardo whether person columbian person mexico unable say whether person australia false basis prisoner unable say one feature case although prisoner course always right silence prisoner sought assist way filling gap material regard version gave psychologist conscientious effort fill relevant gap many thing referred history given demonstrate victim first robbery company li jun wei businessman involved sale jewellery mainly shopping centre fact refer parramatta shopping centre 4 07pm suitcase wheel contained approximately 200 000 worth assorted jewellery attending number jeweller centre presumably make sale period hour cctv footage captured offender conjunction coaccused named another unknown male following mr li around centre fact state appears cctv offender acting together person surveillance activity coaccused unknown male separate occasion follow li male toilet centre victim left parramatta car park motor vehicle followed vehicle wky vehicle vly earlier mentioned purchased 30 may short time later two vehicle seen enter rhodes shopping centre 5 02pm victim li observed enter rhodes shopping centre car park lift coaccused referred changed appearance according closed circuit television male also observed wearing one headphone piece whilst rhodes victim mr li attended jewellery store last sale day 5 46pm coaccused another male seen earlier offender parramatta westfield exited rhodes car park lift shortly prisoner observed waiting lift car park victim li entered lift along prisoner 5 53pm mr li observed exiting lift returning motor vehicle prisoner exit lift time mr li exited rhodes shopping centre car park 6 13pm wky left car park vly prisoner identified cctv footage rhodes shopping centre time mr li drove residence killara parked car driveway heard loud boom sound whereby driver side window smashed unknown person reached vehicle removed key vehicle ignition person commenced punching li repeatedly face li indicated person something partially covering face person wearing darkcoloured glove second loud booming sound point victim realised jewellery bag stolen second person rear vehicle window smashed mr li assailant ceased punching face ran mr li saw darkcoloured vehicle distance along road pacific highway suffered injury corner eye cut left hand pain back shoulder area estimated value stolen jewellery 200 000 6 june 2012 motor vehicle wky 519 located abandoned one street robbery fact assert quote directly following movement victim westfield shopping centre parramatta rhodes shopping centre obtaining information movement victim offender assisted unknown person making aware movement whereabouts victim facilitated robbery committed upon victim unknown person conceded prosecution offender present scene time commission robbery offender agrees knew victim jewellery seller robbery company committed victim person unknown prosecution agreed prosecution offender offender whilst aware victim would possession assorted jewellery cash time robbery unaware exact amount value jewellery cash fact robbed person unknown prosecution clear extent planning relation matter time took execute crime consistent overall degree planning relation offence prisoner must known substantial property taken submission counsel prisoner used word significant matter would semantics although substantial think sufficient purpose far second crime concerned similar modus operandi victim attended westfield burwood selling jewellery arrived westfield burwood 12 30pm two motor vehicle identified following victim car park one goldcoloured toyota camry registration ap 37 bk bluecoloured holden commodore station wagon registration number wtj 691 victim entered shopping centre 12 58 pm cctv footage capture offender entering shopping centre via entrance wearing earphone right ear 1 07pm offender observed upon cctv footage exit shopping centre return motor vehicle wtj 691 bluecoloured holden commodore station wagon 1 44pm victim left westfield store returned vehicle followed vehicle registration ap 37 bk toyota camry drove haberfield jewellery store stopped vehicle toyota camry ap 37 bk parked suddenly diagonally across path three person got vehicle approached victim male described skinny wearing light blue hooded jumper glove black reading glass cotton material covering mouth pointed handgun victim passenger another male person wearing hooded jumper approached victim driver smashed driver side window handgun male pointed gun driver third male smashed rear window victim vehicle stole two backpack briefcase backpack contained 740 000 worth assorted jewellery man pointed gun victim passenger took victim rolex wristwatch laptop computer printer car victim also taken away three unknown assailant returned vehicle drove away stolen property particularised charge motor vehicle ap 37 bk located abandoned near nearby street shard glass located vehicle suspected coming victim vehicle prisoner arrested ashfield area 21 june 2012 taken police station exercised right silence charged matter court subjected forensic procedure second motor vehicle followed victim car burwood westfield car park bluecoloured holden commodore sedan prisoner seen found abandoned alexandria 8 august 2012 subjected forensic examination dna profile offender identified steering wheel item fact state following movement victim westfield shopping centre burwood obtaining information thereabouts victim offender assisted unknown person commit robbery upon victim making aware whereabouts victim conceded prosecution offender present scene time commission robbery offender agrees knew victim jewellery seller robbery company committed victim person unknown prosecution agreed prosecution offender offender whilst aware victim would possession assorted jewellery cash time robbery unaware exact amount jewellery cash fact robbed person unknown prosecution offender maintains unaware person unknown prosecution committed robbery going armed weapon time committing robbery prosecution concedes evidence establish offender knowledge weapon unknown person carried relation last matter assume offender asserts counsel aware version prisoner given version gave psychologist may state agreed fact said relation first count prisoner must known substantial property stolen exact amount course know knew first charge victim victim intended robbery jewellery salesperson course involved previous robbery relation criminal history prisoner relevant criminal conviction australia finding guilt received order unders 10acrimes sentencing procedure act1999 appears record irrelevant informed far prosecution aware conviction columbia mexico custody since arrest 21 june effective sentence date date give evidence court earlier mentioned participate interview police tendered behalf report consultant forensic psychologist dr peter ashkar dated 20 august 2013 confronted course submission proposition evidentiary value contained within report cannot accepted firstly cannot accept proposition prisoner said something must accepted evidence contradict general submission respect misconceived prepared accept matter mind amount admission interest regard accept fact prisoner contact spanish speaking person commonly concerned commission one way another offence prisoner account paid recruited cannot accept version given relation aspect matter accept version given involvement offence beyond agreed fact number reason firstly prisoner never given version gave version psychologist given evidence adopt version given psychologist subject test crossexamination told psychologist matter involves bare minimum information many thing either chosen bothered provide information relation psychologist recorded note para 8 report mr torres employer instructed follow first victim car 30 may 2012 employer also instructed follow first victim parramatta shopping centre day told keep eye follow report phone pause moment account given involvement 30 may say nothing presence shopping centre rhodes shopping centre occasion attributable account given prisoner relation second robbery mr torres employer instructed follow second victim car 12 june 2012 version painfully inadequate explaining set fact quoted reference earpiece referred fact reference prisoner presence within shopping centre truth matter version prison given relation involvement offending psychologist much category confess avoid course said earlier cannot fill gap evidence conveniently left behind prisoner respect speculation prisoner asserting counsel suggests involvement robbery part employment paid 500 per week driver unknown person prisoner prepared name accept account truth matter paid anything cannot conclude absence evidence regard personal circumstance told psychologist born raised bogota colombia claimed happy childhood five brother thirty four twenty two two brother living united state family australia say parent aged fifty mother work home father construction worker claim close family miss terribly speaks mother telephone every day parent sad concerned legal situation said mother become ill gaol depressed sad call cry relationship woman australia child whether detail true unable say uncontroversial may true impossible judge matter based upon hearsay account untested request made prisoner report probation parole service information could provide probation parole service verified right completed secondary school colombia said 2003 entered university studied eighteen month discontinued study 2005 said limited finance made money selling clothes sent brother united state claim use illicit substance tried cannabis like reported occasional alcohol use occasional binge drinking social circumstance denied problem substance background drug addiction dependency alcohol addiction dependency causally connected offending mental disability mental illness history mental illness history self harming medication significance apparently taking medication acne aunt lupus assessment psychologist course medical diagnosis reflects upon reactive significant symptom anxiety depression psychologist fair say normal response legal circumstance although mental state need monitored relation psychometric assessment report unimpressive paragraph 12 state abbreviated assessment mr torres non verbal intellectual functioning placed low average average range twenty first percentile ie better twenty per cent population apart sparse detail passage information beyond footnote completed wechsler abbreviated scale intelligence subtests wechsler adult intelligence scale subtests prepared accept assessment performing described better twenty per cent population fully informed whether twenty per cent population profile twenty per cent general population submission made lower level intellectual functioning long way away psychological disability suggested vulnerable described low intelligence context able decide know confidence true situation far involvement offence could satisfied supposed lower level functioning said far away borderline contributed involvement commission offence certainly nothing evidence available submission made would cause court consider principle summarised case ashemsleyandde la rosa mental disability might operate diminish weight given general deterrence although course consideration case event none matter adverted could reasonably arise evidence prisoner give account psychologist came australia came mexican passport difficult obtain australian visa colombian passport must confess find rather suspicious course sentencing prisoner part drug cartel anything sort find difficult understand could come australia expectation learning english language speak english 3 000 pocket said psychologist paid deposit 1 000 enrol english language course unable commence course paid balance 7 000 evidence produced support assertion may true may true claimed looked work quite constantly nobody prepared employ without english quickly started run money may true may true get back confident submission made prisoner made assertion bound accept one might thought matter adverted report could supported least documentation documentation come forward although considerable doubt version approach circumspection prepared accept prisoner time involvement offence financial difficulty offence earlier pointed well planned offence car obtained subsequently abandoned people including prisoner one stage wearing ear piece number people involved professionalism extent cold hearted brutality commission offence particularly first offence speak principle involved commission robbery skilled professional certainly far cry amateur mindful fact prisoner pleading guilty accessory fact mindful fact fact available could conclude prisoner principal planner occurred person obviously employed perform limited function enable others importantly agreed fact carry robbery expected committed people knew selling jewellery true number authority pointed accessory necessarily le culpable principal sometimes accessory culpable principal particularly accessory instigates plan particular crime r v norman r v olivieri 2007 nswsc 142at 30 evidence upon could conclude prisoner instigated planned crime however involved planning obviously played important role providing information others enable commit crime concluded prisoner culpable actually committed principal crime got way knowing whether put position prisoner could committed principal crime certainly plea acknowledged principal crime committed set fact knowledge occur thus clearly important role play culpable without knowing full fact relation co offender one co offender charged understand extent financial reward receive cannot say respect find assertion made involvement two robbery part employment 500 week driving somebody around completely absurd event chosen give evidence cannot tested number authority deal circumspection court must exercise dealing history given psychologist number occasion court people turn psychological report tendered sometimes objection crown bold assertion made one act upon asserted prisoner circumstance information provided prisoner untested supported evidence might otherwise available course regard conclusion psychologist conclusion particularly revelatory assuming moment even prisoner told truth personal circumstance would expect prisoner experiencing significant symptom anxiety depression reaction current situation absence history mental illness clear aspect matter related current situation psychologist make clear course submission discussed number matter learned counsel prisoner relation matter raised counsel accept ultimately analysis number matter one could highly suspicious established matter aggravation beyond reasonable doubt clear role planning matter limited although accept submission limited whatever could mean circumstance understand agreed fact already pointed fact find prisoner principal planning execution robbery said course regard fact involvement prisoner satisfied prisoner knew planned criminal activity aggravating factor however fact speak precision planning involved commission crime victim case chosen vulnerable moment least expected clearly targeted obviously although say prisoner knew people targeted time obviously knowledge available somebody people business selling jewellery prisoner event expectation principal substantially valued property would obtained clearly first robbery principal would known also satisfied beyond reasonable doubt draw inference least prisoner committed offence financial gain hand point crime always matter rule committed financial gain prisoner member red brigade political organisation committing serious robbery political purpose prisoner committing crime league others direction others knowing robbery committed clear robbery committed prisoner involvement planning concerned could called altruistic purpose one important aggravating factor arises relation matter substantial loss occasioned none property stolen recovered appreciate course others almost certainly responsible selling jewellery secreting like given found prisoner involvement planning knowledge fact robbery conducted context accessory fact contributed course least indirectly substantial loss occasioned victim whether insured know matter seems criticism victim taking around sydney substantial amount jewellery involve presence licensed armed guard regard mitigating factor prisoner person good character prepared conclude least relation first offence admittedly convicted anything time committed offence already committed knew earlier offence prepared accept person generally good character also accept record previous conviction however circumstance matter bereft reliable information prospect background unable conclude prisoner unlikely offend good prospect rehabilitation note age twenty six twenty seven age mature person express regret psychologist noted could conclude regard 21a 3 prisoner demonstrated remorse provided evidence accepted responsibility action beyond account gave psychologist painfully incomplete failed provide information could lead identity people adequately view acknowledge relevant loss injury damage suffered various victim plea guilty mitigating factor prisoner however get discount 25 percent upon otherwise appropriate sentence offence represent utilitarian value plea guilty accordance guideline judgment ofthomson houlton submission counsel averted course number matter summarised taken account submission made behalf believe need particularly refer matter crown submission properly addressed fact must case notwithstanding criminal history prisoner crime considerable seriousness thus given character robbery ultimately committed prisoner role general deterrence important consideration sentencing personal deterrence also important matter although appreciate prisoner served sentence deported back columbia never allowed return australia unless come back another false passport need denounce conduct make accountable action need notwithstanding fact foreign national deported promote rehabilitation end day purpose sentencing arise 3a mentioned like signpost said decision high court inveen 2 signpost sometimes point opposing direction mindful fact cannot conclude prisoner part organised criminal activity prisoner recruited financial difficulty may mean capacity rehabilitate future enhanced prisoner person entrenched criminal proclivity notwithstanding absence criminal history associate entrenched criminal proclivity progress rehabilitation course limited relation 3a obviously thus regard section reference made course submission guideline judgment ofhenry guideline judgment court criminal appeal handed 1998 1999 reported 1999 nswcca 111 1999 46 nswlr 346 held number authority thehenryguideline equally applicable offence robbery company maximum penalty offence armed robbery note authority asmurchie 1999 nswcca 424 lesi 2004 nswcca 63amongst others decision ofstanley 2003 nswcca 233 held seven consideration enumerated learned chief justice inhenry 162 apply mutatis mutandis 97 assault robbery assault intent rob offence prisoner appreciate pleading guilty accessory fact already dealt matter fairly said reference principal offence given prisoner lesser moral culpability identified guideline could use expression honour settled upon respect matter sentence generally falling four five year concerned offending world away particular offence concerned guideline fixed guideline tram line regard profile involving young offender using weapon capable killing inflicting grievous bodily harm appreciate prisoner knowledge use weapon limited degree planning small amount taken plea guilty significance limited strong case et cetera course one bear mind thathenrywas decided beforethomson houlton number observation need considered light subsequent guideline appreciate victim vulnerable people business people must said perhaps without critical foolish adequate security protection cannot understand someone could dragging 700 000 worth jewellery around sydney form security protection may entitled protection law protection law requires found guilty involvement robbery due course condign punishment imposed relation guideline taken account made allowance prisoner legal culpability accessory fact circumstance outlined even making allowance admitted substantial criminality within context le liable others including recruited relation matter principle set high court majority inpearce v r 1998 hca 57 1998 194 clr 610particularly 45 arise required fix appropriate sentence offence regard totality criminality determine appropriate degree concurrency accumulation regard sequence event first offence le serious second offence prisoner committed second offence knowledge already committed first offence determined greater sentence imposed second offence first offence primarily reason also considered must partial accumulation disputed crown defence crown submitted quite properly term fulltime custody must imposed regard 5crimes sentencing procedure actand clearly penalty fulltime imprisonment must imposed regard put behalf prisoner isolation family court course required express sympathy situation certainly understand difficulty prisoner although much self imposed said prisoner quite category offender example knowingly involved importation drug come country commit crime law evidence upon conclude prisoner came country view committing crime may correct say came start new life advance life beyond situation deprivation columbia course said earlier one could act prisoner say relevant matter one realises much information withheld material character relation offending regard topearceprinciples determined foreshadowed earlier partial accumulation view extent eighteen month determined starting point sentence relation first offence time five year discount 25 percent sentence three year nine month date 21 june 2012 relation second offence time starting point seven year discount 25 percent calculation amount sentence five year three month date 21 december 2013 shall move formal order could stand please mr ortiz relation offence committed may 2012 convicted sentenced term imprisonment three year nine month sentence date 21 june 2012 expire 20 march 2016 decline fix non parole period relation offence sentence absorbed sentence impose relation offence committed june 2012 relation offence convicted sentenced term imprisonment five year three month date 21 december 2013 calculation balance sentence expire 20 march 2019 relation sentence fix non parole period two year six month date 21 december 2013 expire 20 june 2016 thus total sentence impose six year nine month non parole period four year effectively dating 21 june 2012 made finding special circumstance pursuant tos 44crimes sentencing procedure act special circumstance second sentence partially accumulative upon first required fix non parole period second sentence accept need extended period supervision adjust community living also accept context fixing appropriate penalty fixing non parole period first time prison custody suffer hardship custody arising lack english although improve year come separated family culture course law relation foreign national deported court still required sentencing fix non parole period give consideration non parole period would australian citizen person living australia consideration given evidence thus thing considered said made finding special circumstance includes consideration matter go simply beyond partial accumulation sentence yes mr crown technical matter kanakarative honour honour m mayne technical matter mayne honour kanakarative yes honour agree honour mr ortiz understand length sentence interpreter six year nine month honour understand length non parole period interpreter honour well four year effectively 21 june 2012 date came custody mean 20 june 2016 become eligible released parole may may released parole matter parole authority released parole taken detention centre perhaps villawood exists place due course arrangement made put plane flown back country birth origin sure one matter leave forgotten read statistic provided almost assistance concerned total twenty two case seven involved term imprisonment term imprisonment five case varied twelve month forty two month offender convicted aid abet accessory robbery armed company knowledge fact relation various matter objective seriousness matter comparison learned chief justice said 1998 value statistic vary score sample without fact relation offence merely provide barest assistance certainly statistic assistance real sense whatsoever critical issue matter course maximum penalty crime question assessment prisoner responsibility within range conduct anticipated legislature matter think advert discharge prisoner think dealt everything need deal circumstance confronted yes thank much mr ortiz thank much assisting u matter excused mr ortiz want speak client benefit interpreter mayne benefit interpreter honour honour downstairs mayne know interpreter come downstairs |
Breen v Williams ("Medical Records Access case") [1996] HCA 57; (1996) 186 CLR 71 (6 September 1996).txt | breen v williams medical record access case 1996 hca 57 1996 186 clr 71 6 september 1996 high court australiajulie breen v cholmondeley w williamsf c 96 025number page 61medicine 1996 186 clr 71high court australiabrennan cj dawson toohey gaudron mchugh gummow jjcatchwordsmedicine doctor patient relationship medical record patient right access contractual right doctor duty act patient best interest utmost good faith loyalty patient proprietary right interest information contained record whether doctor fiduciary duty grant access right know hearingcanberra 21 november 19956 9 1996 canberraorderappeal dismissed cost revision prior publication commonwealth law report decisionbrennan cj circumstance give rise issue appeal set judgment appellant patient respondent medical practitioner claim legal right reasonable access record kept respondent respect appellant right inspect copy record subject certain admitted exception appellant submits right enforceable declaration injunction right submitted based variously contract property fiduciary duty view none base give support appellant claim state reason contract2 present case formal contract appellant respondent appears appellant consulted respondent medical practitioner provided medical service accordingly 3 absence special contract doctor patient doctor undertakes contract advise treat patient reasonable skill care consideration undertaking may either payment promise payment reward submission patient undertaking patient submit treatment proposed duty similar duty binding doctor contract imposed doctor law tort advice treatment required fulfil either duty depends history condition patient facility available circumstance case 4 provision advice treatment reasonable skill care may exhaust duty doctor unless contract doctor patient especially restricted doctor obligation maintain improve health patient generally use reasonable skill care even though advice treatment required particular occasion specialist field provided occasion limited time patient may thought made many part one may need treatment given time patient nonetheless entirety whose life span hopefully span ill disease moment perceived duty doctor owed patient entirety appropriate assume duty discharged merely giving advice treatment particular occasion 5 situation may duty provide patient patient nominee information doctor acquired course purpose advising treating patient information received otherwise acquired doctor pursuant authority given expressly impliedly patient purpose enabling doctor perform doctor contractual duty maintain improve health patient generally absent patient permission doctor must use information purpose future medical treatment physical mental wellbeing patient might prejudiced absence information history condition treatment patient earlier occasion doctor acquired information benefit patient health must make available avoid diminish prejudice obligation implied doctor acceptance patient authority contract obtain information authority given order benefit patient health generally authority must accepted acted upon purpose obligation implied excluded express provision 6 obligation unqualified arises conditioned doctor duty benefit patient health generally obligation fall discharged patient health would might prejudiced refusing make information available service making information available ordinarily covered fee paid advice treatment doctor entitled reasonable reward service 1 7 reason would hold information respect patient history condition treatment obtained doctor course purpose giving advice treatment patient must disclosed doctor patient patient nominee request 1 refusal make disclosure requested might prejudice general health patient 2 request disclosure reasonable regard circumstance 3 reasonable reward service disclosure tendered assured similar duty may imposed doctor law tort particular situation example emergency treatment relationship doctor patient may give rise duty extends far necessary consider problem 8 undertaking provide information one thing duty give patient access permit patient copy doctor record another doctor duty provide information discharged circumstance ought discharged without allowing patient see doctor record duty performed without giving patient access doctor record foundation implying obligation give access evidence case suggest access respondent record might necessary avoid diminish possibility prejudice appellant health 9 appellant argued implied term contract appellant respondent respondent would act appellant best interest even extent testifying litigation propounded best interest obligation said encompass obligation give patient access doctor record term implied ordinary contract go far limited subject matter contract relates namely benefiting health patient 10 leaving aside case term implied contract established mercantile usage professional practice past course dealing party 2 term implied contract contract effective without 3 present case suggested access respondent record needed therapeutic reason could suggestion made respondent made open offer provide report writing relating history physical examination finding investigation result diagnosis proposed management plan treatment advice furnished appellant offer accepted fulfilled would discharged obligation might arisen implication contract party offer accepted appellant contending right informed right access doctor record contract appellant respondent wholly effective without term entitling appellant access respondent record requiring respondent give access foundation implying term accordingly first basis appellant claim fails property11 appellant concedes property record chattel respondent concession rightly made document prepared professional person assist professional perform professional duty property lay client remain property professional 4 light principle easy see relevance law property supposed right appellant access respondent record put argument respondent said proprietary right would entitle refuse access question whether appellant right given access still remains approach supposed right must find basis property even approach argument flawed absent right require exercise power compel production document inspection owner entitled virtue right ownership refuse produce copying professional person owner copyright sole right copy permit copying document 5 12 approach right access copy arises information contained record proprietary nature approach mistake sense information described property sense information described stated lord upjohn phipps v boardman 6 term general information property isnormally open eye read ear hear true test determine circumstance information acquired acquired circumstance would breach confidence disclose another court equity restrain recipient communicating another case confidential information often many year described property donor book authority full reference knowledge secret process know confidential information prospect company someone intention expected result horse race based stable confidential information end real truth property normal sense equity restrain transmission another breach confidential relationship information property except sense stated lord upjohn remedy equity grant protect disclosure certain kind information source notion property deane j pointed moorgate tobacco co ltd v philip morris ltd 2 7 like head exclusive equitable jurisdiction itsrational basis lie proprietary right lie notion obligation conscience arising circumstance information communicated obtained 13 equity might restrain respondent disclosing without authority information appellant medical condition contained respondent record sense might arguable information property appellant even description correct necessary consider question description would provide foundation existence right access copy enforceable equity mere possession respondent record relating appellant breach obligation conscience thus attracts equitable remedy might clothe information relevant proprietary character obligation conscience requiring respondent open record inspection copying appellant whichever approach taken relevance law property fails provide basis appellant claim fiduciary duty14 fiduciary duty arise either two source may distinguished one frequently overlap 8 one source agency 9 relationship ascendancy influence one party another dependence trust part 10 whichever source duty necessary identify subject matter fiduciary obligation extend 11 erroneous regard duty owed fiduciary beneficiary attaching every aspect fiduciary conduct however irrelevant conduct may agency relationship source fiduciary duty fletcher moulton lj pointed coomber coomber v coomber 12 fiduciary relation many different type 13 fiduciary relation court may interfere set aside act person wholly independent position would perfectly valid lordship added thereupon mind arises idea thereis fiduciary relation whatever type interference warranted conclude every kind fiduciary relation justifies every kind interference course absurd nature fiduciary relation must justifies interference class case one ought carefully bear mind fact case one read judgment court fact case relate fiduciary confidential relation action court regard mason j said hospital product ltd v united state surgical corporation 14 acknowledged generally scope thefiduciary duty must moulded according nature relationship fact case case gibbs cj said 15 fiduciary relation different type carryingdifferent obligation test might seem appropriate determine whether fiduciary relationship existed one purpose might quite inappropriate another purpose 15 nature doctor patient relationship generally relationship agency relationship doctor patient one doctor acquires ascendancy patient patient position reposing trust doctor relationship cast upon doctor onus proving gift received patient given free influence relationship produce 16 case doctor received gift taken step procure advantage taken advantage ascendancy patient trust refusal give access record deny patient benefit patient entitled either reason position appellant medical adviser provider medical treatment reason trust reposed provide medical treatment canada supreme court held relationship doctor patient cast doctor fiduciary duty provide patient access medical record mcinerney v macdonald 17 respect notion fiduciary duty canada accord notion united kingdom 18 opinion canadian notion accord law fiduciary duty understood country simply fiduciary relationship give rise duty give access permit copying respondent record relevant subject matter respondent fiduciary duty extended 16 accordingly third basis advanced support appellant claim fails would add agreement dawson toohey jj written patient right know honour point appellant rely court right basis claim right access copy respondent record 17 appeal dismissed dawson toohey jj 1977 appellant bilateral augmentation mammoplasty involved insertion silicone implant breast thereafter developed bilateral breast capsule 1978 consulted respondent plastic surgeon plastic surgeon performed implant respondent advised appellant capsule compressed performed operation appellant experienced severe pain two consultation respondent operated performed bilateral capsulotomy appellant consulted respondent since operation although corresponded 1983 matter unrelated appeal 2 1984 another doctor dr mcdougall diagnosed lump appellant left breast silicone gel leaked breast implant result performed partial mastectomy upon appellant since corrective surgery left breast right silicone breast implant replaced operation performed respondent 3 appellant became interested litigation united state way class action manufacturer breast implant claiming defective litigation given opportunity opt settlement given conditional approval united state court appears condition opting appellant 1 december 1994 file united state court copy medical record support claim wished make appellant sought access medical record kept respondent case maintains secure advice whether opt united state settlement comply condition imposed decide also maintains right access medical record ensure information relating health disposal turn ensure able make decision regarding future treatment 4 appellant could secured access medical record compulsory court process would appear order discovery record within equitable jurisdiction supreme court new south wale another procedure way letter rogatory obtained united state court several litigant position order made supreme court new south wale compelling production medical record court aid united state proceeding appellant avail procedure said time available short instead commenced action supreme court new south wale claiming declaration entitled access medical record kept respondent relation convenient refer appellant medical record although extent begs question decided appeal appellant also sought order respondent allow access medical record examine obtain copy information contained 5 record evidence trial judge bryson j found inference comprised following defendant handwritten note b may letter reporting referral doctorsalthough evidence clearly show c may hospital advice slip evidence doesnot clearly show correspondence patient thedefendant resist inspection annexed copy affidavit e evidence whether report thedefendant doctor dr mcdougall wrote letter probably 1991 plaintiff f probably communication nsw medicaldefence union g probably photograph trial judge specifically found document appellant medical record confirming nature implant manufacturer lot number sticker implant box document type record trial judge found contain result blood test pathology report x ray mammogram document referred appellant claim relief practical purpose relief sought appellant related end respondent handwritten note upon argument centred 6 respondent said handwritten note prepared maintained byme along document described belief record belong private ome record contain information supplied confidence family friend patient circumstance told person wish patient aware communication often information receive source would regard sensitive confidential would wish divulge knowledge source unless judged necessary interest patient case state mind health patient record contain information disclosure judgment might detrimental patient well disclosed disclosed without full explanation note prepared belief remain private often contain conclusion commentary musing might well different form substance note prepared knowledge patient entitled copy record would concerned note record maintained might least case cause confusion unnecessary worry stress patient made available without adequate explanation finally part note contain information relates solely business administration practice aspect treatment management patient 7 4 august 1993 appellant solicitor wrote respondent requesting copy appellant medical record medical report letter dated 10 august 1993 respondent replied appellant saying solicitor well know longstanding legaltradition country record doctor property aide memoire treatment patient may released production court subpoena accordingly advice received medicaldefence legal advis e r situation still hold would happy release record supply document would release claim might arise relation treatment despite reference letter claim respondent appellant sought seek make claim respondent based upon default commenced proceeding upon basis would entitled discovery medical record ordinary course nevertheless appellant prepared give undertaking sought respondent insurer sought access medical record right 8 trial appellant action respondent made open offer provide report writing appellant content medical record excluding correspondence new south wale medical defence union appellant solicitor offer encompassed history taken respondent physical examination finding investigation result diagnosis proposed management plan treatment advice offer accepted withdrawn trial judge found appellant wish report offered respondent thus regarded called upon consider whether respondent readiness provide report reasonable extended sufficiently far satisfy contractual duty respondent might provide report 9 notwithstanding purpose appellant asserted wanting access medical record claim general patient entitled require treating doctor copy record relating patient whatever purpose patient mind trial judge concluded wish plaintiff representing herto treat litigation opportunity test whether patient right access information medical record maintained patient treating doctor test contrary proposition within power treating doctor grant withhold access record doctor decides however appellant conceded right asserted must subject qualification accepted doctor may withhold information disclosure would adverse patient interest referred therapeutic privilege 19 10 trial judge refused appellant relief sought appealed new south wale court appeal majority mahoney meagher jja kirby p dissenting dismissed appeal 20 order court appeal appellant appeal court 11 least one respect appellant case presented unsatisfactory form although claim related specific medical record made attempt obtain access record course proceeding commenced proceeding seek discovery seek subpoena result trial judge asked make declaration order respect document seen nature could determine inference could said whether document fell within exception right part appellant access least one exception called therapeutic privilege acknowledged part appellant case 21 doubt power grant declaratory relief wide 22 even test case claimant must establish cause action upon particular fact case thus said person seeking declaratory relief must real interest relief granted question purely hypothetical relief claimed relation circumstance occurred might never occur court declaration produce foreseeable consequence party 23 relevant context observe exploration argument whether appellant obtained access medical record course litigation would effect upon entitlement relief claim 12 observation made convenient turn way appellant put case contended right access medical record arose three source namely patient proprietary right interest information contained record implied term contract patient doctor fiduciary relationship patient doctor addition fair say appellant submission pervaded general assertion said patient right know right said arise particular source said reflect law acceptance personal inviolability patient autonomy rejection paternalistic approach involving application standard determined exclusively medical profession latter respect appellant relied upon recent decision court rogers v whitaker 24 turn deal contention proprietary right interest13 appellant claim ownership actual document comprising medical record understandable include document obtained behalf paid x ray photograph pathology report ownership may well able claim said practical purpose comprise written note respondent respect doubt property respondent duty respondent contract tort exercise reasonable care skill giving treatment advice 25 carrying duty respondent compiled record respondent act agent appellant document property alone general principle document brought existence agent employ principal belong principal agent 26 course sometimes relationship professional client professional may act agent course providing service case document brought existence may property client example contract deed produced solicitor client paid client property client hand observed chantrey martin v martin 27 even case solicitor must havethought instance memoranda note etc made information course business remain property although brought existence connexion work done client case appellant medical record clearly compiled respondent information treating advising appellant sense agent appellant appellant correct view seeking contest ownership respondent record 14 hand appellant encounter le difficulty seeking maintain information recorded record proprietary right interest entitles access analogy drawn situation beneficiary trust relationship lord wrenbury said rourke v darbishire 28 plaintiff right saying abeneficiary document document belonging executor executor right access document desire inspect upon called judgment case proprietary right beneficiary entitled see trust document trust document beneficiary sense action action entitled access remark accepted referred without demur londonderry settlement 29 accepted country 30 right access beneficiary trust document arises beneficial interest beneficiary trust property sense right may described proprietary relationship doctor patient trustee beneficiary although certain purpose seen duty fiduciary nature may imposed upon doctor essentially relationship doctor patient contractual one whereby doctor undertakes treat advise patient use reasonable skill care affords basis proprietary interest record kept doctor purpose carrying function 15 appellant contention however information contained record separated record information appellant proprietary right interest entitling access record proprietorship information information imparted one person another belongs equally 31 true gummow j recognised smith kline french laboratory aust ltd v secretary department community service health 32 equity act protect confidential information degree protection afforded make appropriate describe proprietary character property basis upon protection given effect protection case whilst information provided appellant respondent doubt confidential question abuse respondent confidence property information sense upon appellant might base right asserts 16 argument question doctor copyright medical record raised appellant upon basis right access claimed extended making copy record appellant made submission upon question unnecessary reach conclusion obviously would raise problem appellant otherwise succeed contention implied term17 implication term contract based upon presumed imputed intention party case formal contract complete face may said general implication arises save legal incident particular class contract unless necessary obvious necessary sense required give business efficacy contract obvious sense go without saying 33 however case formal agreement actual term contract must inferred question implication arise test applied formulated deane j hawkins v clayton term 34 said consistently need forsome degree flexibility case apparent party attempted spell full term contract court imply term reference imputed intention party seen implication particular term necessary reasonable effective operation contract nature circumstance case general statement principle subject qualification term may implied contract established mercantile usage professional practice past course dealing party say question obvious implication arises case obvious term contract matter inference moreover line inference implication always easy draw 18 however common ground obligation respondent contract appellant use reasonable skill care treating advising appellant unnecessary pause examine whether standard care imposed upon respondent inference implication legal incident kind contract necessary consider effect overlap duty imposed contract tort area 35 said necessary reasonable effective performance obligation respondent obliged give appellant access medical record careful skilful treatment appellant may required respondent provide others information necessary ensure proper ongoing care health respondent prepared provide information albeit form report direct access record indeed respondent pointed given appellant free access matter contained medical record may interest may fallen short standard skill care required led appellant concede exception obligation contended form called therapeutic privilege need concession rather supporting existence obligation tends show obligation neither necessary reasonable incident contract party first place suggestion established professional practice medical practitioner afford patient access patient medical record evidence entirely contrary view foundation implied term upon appellant relies fiduciary duty19 whilst duty fiduciary nature may imposed upon doctor confined cover entire doctor patient relationship thus doctor duty protect confidentiality information given patient 36 doctor patient relationship substantial benefit received doctor patient proper remuneration presumed result undue influence doctor bearing onus rebutting presumption 37 whether aspect doctor patient relationship properly described fiduciary may matter debate example moorgate tobacco co ltd v philip morris ltd 2 38 deane j saw protection afforded equity confidential information something separate wider fiduciary duty arising general nature relationship similarly academic writer classified doctrine undue influence standing apart general fiduciary doctrine 39 debate worth pursuing present context plain appellant relies upon wider fiduciary relationship respondent giving rise duty part respondent afford access medical record 20 difficulty dealing appellant contention law yet able formulate precise comprehensive definition circumstance person constituted fiduciary relation another accepted fiduciary relationship trustee beneficiary agent principal solicitor client employee employer director company partner may characterised relation trust confidence hospital product ltd v united state surgical corporation mason j said 40 critical feature relationship thefiduciary undertakes agrees act behalf interest another person exercise power discretion affect interest person legal practical sense relationship party therefore one give fiduciary special opportunity exercise power discretion detriment person accordingly vulnerable abuse fiduciary position expression behalf interest signify fiduciary act representative character exercise responsibility mason j intend suggest description fiduciary relationship isolated feature relationship trust confidence impose fiduciary obligation case whenever job performed 41 entrusting job someone involves reposing substantial trust confidence person fiduciary relationship arises significance fiduciary act representative character exercise responsibility 21 doctor bound exercise reasonable skill care treating advising patient acting representative patient simply exercise professional responsibility doubt patient place trust confidence doctor doctor act behalf patient patient entitled expect observance professional standard doctor matter treatment advice afforded remedy contract tort standard observed patient suffers damage 22 equity requires person fiduciary obligation put position interest duty conflict conflict unavoidable resolve favour duty except special arrangement make profit position 42 application requirement quite inappropriate treatment patient doctor giving associated advice duty doctor established contract tort appropriately described term observance standard care skill rather inappropriately term avoidance conflict interest observed law exacts fiduciary relationship loyalty often uncompromising kind 43 concern law fiduciary relationship negligence breach contract yet law negligence contract governs duty doctor towards patient leaf need even room imposition fiduciary obligation course fiduciary duty may superimposed upon contractual obligation conceivable doctor may place position potential conflict interest example doctor financial interest hospital pathology laboratory give rise fiduciary obligation 44 case 23 thus rogers v whitaker 45 issue extent doctor obligation inform patient risk inherent proposed treatment court based decision squarely upon duty doctor observe appropriate standard care upon fiduciary relationship majority said 46 law imposes medical practitioner duty toexercise reasonable care skill provision professional advice treatment duty single comprehensive duty covering way doctor called upon exercise skill judgment 47 extends examination diagnosis treatment patient provision information appropriate case 48 course necessary give content duty given case 24 appellant relied upon decision canadian supreme court mcinerney v macdonald 49 la forest j delivering judgment court held patient entitled reasonable access examine copy doctor record non disclosure lordship held may warranted real potential harm either patient third party general superintending jurisdiction court la forest j accepted medical record case property doctor declined rest obligation found exist upon implied contractual term conceded appellant physician patient right advised information concerning health physician medical record la forest j relying upon line united state case 50 concluded fiducial quality relationship extend physician duty beyond include obligation grant access information doctor us administering treatment 51 basing duty upon fiduciary relationship la forest j giving expression view duty doctor act utmost good faith loyalty 52 duty hardly fit undoubted duty doctor country exercise reasonable skill care giving treatment advice perhaps reflective tendency found country seen united state lesser extent canada view fiduciary relationship imposing obligation go beyond exaction loyalty displacing role hitherto played law contract tort becoming independent source positive obligation creating new form civil wrong 53 respect achieved assertion rather analysis whilst may effectuate preference particular result involve development elucidation accepted doctrine foundation either principle authority country however different position may canada conclusion reached la forest j 54 information oneself revealed doctor acting aprofessional capacity remains fundamental sense one doctor position one trust confidence information conveyed held fashion somewhat akin trust doctor owner actual record information used physician benefit patient confiding information physician medical purpose give rise expectation patient interest control information continue observed relation passage court concerned case patient right information concerned access actual record containing information notwithstanding place passage appears regard information interchangeable actual record 25 england 3 access health record act 1990 uk give prima facie right access health record individual relate person 5 1 provides access shall given section 3 2 anypart health record opinion holder record woulddisclose information likely cause serious harm physical ii information relating provided individual patient could identified information b made commencement act act passed result decision european court human right gaskin v united kingdom55 held refusal allow access applicant certain health record breach right respect private family life art 8 european convention protection human right fundamental freedom 1950 26 r v mid glamorgan family health service court appeal 56 upheld decision popplewell j 57 dismissing application patient access medical record popplewell j view breach art 8 respondent offered make available record predated 1990 act independent medical adviser might judge whether information likely cause harm applicant anyone else however reached clearest possible conclusion 58 common law right access applicant record pre existing access health record act court appeal nourse lj member court agreed referred judgment well known passage speech lord templeman sidaway v governor bethlem royal hospital said 59 subscribe theory patient isentitled know everything theory doctor entitled decide everything relationship doctor patient contractual origin doctor performing service consideration fee payable patient doctor obedient high standard set medical profession impliedly contract act time best interest patient doctor sens would impliedly contract time give patient information available doctor result doctor training experience result doctor diagnosis patient obligation give patient information available doctor would often inconsistent doctor contractual obligation regard patient best interest information might confuse information might alarm particular patient whenever occasion arises doctor tell patient result doctor diagnosis possible method treatment advantage disadvantage recommended treatment doctor must decide light training experience light knowledge patient said said nourse lj observed passage provided sensible basis holding doctor likewise health authority owner patient medical record may deny patient access best interest 60 however lord templeman referring information directing attention patient right access physical record moreover remark made context duty doctor warn risk inherent treatment patient right refuse accept difficult therefore gauge intended effect concluding observation nourse lj said 61 inherent view expressed notaccept health authority private doctor absolute right deal medical record way chooses lord templeman make clear doctor general duty likewise health authority act time best interest patient 27 indeed doctor duty act best interest patient meant doctor must exercise reasonable care skill treatment advice patient may require doctor provide information record regarding particular patient say patient right record indeed reposing judgment doctor best interest patient deny proposition doctor judge information provided interest patient made judgment must provide information point served right access record qualified unqualified part patient course speaking litigation patient right access record purpose litigation nourse lj identified legal source right access otherwise certainly suggest existence fiduciary duty giving rise would difficulty sidaway lord scarman dissent point said 62 counsel appellant referred nocton v lordashburton 63 attempt persuade lordship relationship doctor patient fiduciary character entitling patient equitable relief event breach fiduciary duty doctor attempt fails comparison made relationship doctor patient solicitor client trustee cestui qui trust relationship treated equity fiduciary character 28 find basis law country discerning fiduciary relationship doctor patient carrying right access part patient medical record compiled doctor relation patient right know 29 appellant submit court right know content medical record independently claim arising proprietorship information contained record contract existence fiduciary relationship respondent however sought call aid furtherance claim something called movement law governing relationship doctor patient direction acceptance principle personal inviolability patient autonomy rejection medical paternalism regard sought rely upon decision rogers v whitaker 64 30 two observation may made case first concerned provision information access medical record doctor context decision made patient whether undergo proposed treatment second observation decision affirmed proposition earlier referred namely matter judgment doctor determine patient know best interest pointed making judgment doctor required exercise reasonable skill care court would determine whether standard observed rather apply bolam 65 approach placed reliance upon opinion responsible body medical practitioner nevertheless held judgment made doctor notwithstanding particular context revelation risk inherent proposed treatment relevant information enable patient make decision whether undergo treatment would ordinarily required sense case affirm patient autonomy able discern case anything additional say personal inviolability whatever may mean context anything say medical paternalism save perhaps extent decides court medical opinion determine whether required standard care observed 31 apparent already said detect movement law would sustain appellant claim endeavoured explain appellant view owner information contained medical record basis implication term contends contract respondent recognition relevant fiduciary relationship event even movement law claimed appellant exist could significance established principle point clear conclusion view case 32 doubt consideration policy part appellant argument involves may justifiably influence adaptation development law recognition new category open upon basis settled legal principle policy consideration cannot justify abrupt arbitrary change involving abandonment settled principle favour particular result merely perceived desirable 33 event desirability result appellant advocate far self evident one view upon matter choice view choice made appropriately legislature rather court indeed declaration sought appellant gummow j reproduces judgment cast term make plain legislative character 34 reason would dismiss appeal gaudron mchugh jj question appeal whether patient right inspect obtain copy medical record held person doctor 2 supreme court new south wale bryson j held appellant m julie breen patient respondent dr cholmondeley w williams right copy access medical record majority court appeal supreme court mahoney meagher jja agreed decision bryson j 66 kirby p dissenting held doctor owes patient fiduciary duty entitles patient inspect obtain copy medical record 67 pursuant grant special leave m breen appeal court order court appeal opinion appeal dismissed factual background3 october 1977 m breen underwent bilateral augmentation mammoplasty operation involving insertion silicone implant breast sometime operation noticed development breast capsule consulted dr williams series consultation performed bilateral capsulotomy operation m breen november 1978 1984 another surgeon removed implant apart correspondence 1983 possible removal implant unrelated medical condition m breen dr williams appear contact correspondence commencing 1993 gave rise litigation 4 1993 m breen became involved class action united state america company manufactured implant action plaintiff claimed implant defective 4 august 1993 lawyer wrote dr williams asking would forward photocopy medical record possession concerning m breen dr williams replied would release record m breen would supply document would release claim might arise relation treatment m breen declined give undertaking right access5 claim patient right access medical record question great social importance absent contractual term claim foundation law australia nevertheless every possible argument could made support claim m breen put dr cashman appeared m breen contended one five legal principle doctrine supported gave m breen right access record possession dr williams relate treatment subject lawful exception 6 first common law gave proprietary right interest actual information contained dr williams record second common law implied term contract dr williams effect right access document dr williams file third innominate common law right access medical record fourth common law recognised patient right know necessary information concerning medical treatment including requested access record containing information fifth law imposed dr williams fiduciary duty enforceable court equity give access medical record m breen proprietary right interest medical record 7 dr cashman submit m breen owned actual document comprised medical file said seek divest doctor piece paper comprising record concession m breen document plainly correct professional person ordinarily agent client even though often express implied ostensible authority enter contract client behalf document prepared agent ordinarily property principal document prepared professional person assist work client property professional person lay client speaking document firm valuer prepared course professional employment mackinnon lj said 68 agent brings existence certain document whilein employment principal principal document principal claim agent hand present case emphatically one principal agent case relation client professional man client resort advice think would entirely wrong extend relation may legal result quite different relation principal agent document question document prepared assistance carrying expert work document brought existence agent behalf principal therefore cannot said property principal doctor patient relationship like valuer client one agent principal dr williams note prepared assist fulfil professional duty property medical record relating m breen prepared belongs m breen proprietary right respect record right ownership dr williams statute contract apart good world entitles dr williams prevent person access record 8 although dr cashman conceded m breen record contended proprietary right interest document entitled access premise argument record owned anybody however idea item personal property abandoned owner ill founded ownership may divisible sense one collection right constituting ownership may detached vested number person ownership may also divorced possession numerous circumstance 69 notion personal property abandoned may owner one foreign common law statute contract apart medical record prepared doctor property doctor property right entitles doctor refuse person access record dr cashman argument based m breen proprietary right interest record must fail right access implied contractual term 9 doctor patient relationship contractual origin 70 general term doctor offer patient diagnosis advice treatment objective prolongation life restoration patient full physical mental health alleviation pain 71 given informal nature relationship however contract doctor patient rarely contains many express term court obliged formulate right obligation party contract lord wilberforce put case party contract attempted spell term contract function court simply establish contract party fully stated term 72 court implying term contract accordance established legal principle 10 common law draw distinction term implied fact term implied law leaving aside term presumed apply custom trade business court imply term fact necessary give efficacy contract 73 term implied fact purport give effect presumed intention party contract respect matter mentioned presumably would agreed part contract 74 term implied law hand arises nature type class contract question 75 term implied statute contract particular class example money lending home building contract term give effect social economic policy legislature think necessary protect promote right one party class contract term implied common law although originally based intention party specific contract particular description became much part common understanding imported transaction particular description 76 many term implied prevent enjoyment right conferred contract rendered nugatory worthless perhaps seriously undermined notion necessity central rationale implication 77 distinction term implied law term implied fact tend practice merge imperceptibly 78 11 argument m breen started premise implication law doctor always contract patient act patient best interest support premise dr cashman relied following statement lord templeman sidaway v governor bethlem royal hospital 79 doctor obedient high standard set themedical profession impliedly contract act time best interest patient premise dr cashman argued incident best interest term doctor must make available medical record concerning patient patient seek access leap premise conclusion long one pas 12 notion best interest relevant consideration area law law relating child welfare 80 doctor impliedly promise always act best interest patient primary duty doctor owes patient duty exercise reasonable care skill provision professional advice treatment 81 doctor warrant act patient best interest treatment successful 82 doctor owed duty would liable act objectively best interest patient doctor would liable treatment went wrong although acted without negligence law australia 13 good reason australian court imply best interest term matter law doctor patient contractual relationship first w term implied contract usually embody contractual promise therefore create legal duty 83 duty would inconsistent existing contractual tortious duty exercise reasonable care skill provision professional advice treatment existence tortious duty care militates implication general contractual duty care 84 particularly incident independent general contractual duty care would differ independent tortious duty 85 second meaning application implied term must reasonably certain 86 notion best interest criticised uncertain context child welfare 87 criticism pertinent context contract law place premium certainty 14 even australian law implied term contract doctor patient doctor would act patient best interest sense lord templeman propounded sidaway would assist m breen claim right access medical record concerning lord templeman asserting doctor owed general duty act best interest patient used term context medical advice treatment paragraph preceding statement upon dr cashman relies lord templeman said doctor offer patient diagnosis advice treatment 88 context lordship went say doctor impliedly contract act time best interest patient 89 duty one applying respect matter arising doctor patient relationship subsisting indefinite period within context diagnosis advice treatment 90 duty act best interest patient active moreover difficult see duty act patient best interest differ substantive way doctor duty exercise reasonable care practising skill medicine 91 addition lord templeman formulating objective test best interest whole point speech sidaway primarily matter doctor determine patient best interest said 92 doctor bearing mind best interest patient bearing mind patient right information enable patient make balanced judgment must decide information given patient term information couched 15 reason common law imply term contract dr williams m breen would always act best interest right access record treatment far advice treatment concerned relevant contractual term implied law exercise reasonable care skill 16 finally ground exists implying best interest term matter fact term obvious go without saying necessary give business efficacy contract 93 17 accordingly implied term contract m breen dr williams entitles access medical record possession innominate common law right access medical record 18 dr cashman relied decision english court appeal nourse evans ljj sir roger parker r v mid glamorgan family health service 94 assert innominate common law right access medical record court appeal held case public health authority duty administer property accordance public purpose 95 owner patient medical record authority may deny patient access record best interest patient 96 court appeal upheld primary judge conclusion offer make record plaintiff available medical adviser satisfied duty 19 contrary view expressed nourse lj thought lord templeman speech sidaway 97 decided doctor duty act time best interest patient general duty 98 nourse lj went say hose interest would usually require patient medical record usually example handed one doctor next made available patient legal adviser reasonably required purpose legal proceeding involved 99 said think lord templeman intended lay sweeping duty event reason given australia duty implied contractual relationship doctor patient 20 follows mid glamorgan family health service authority persuasive effect country doctor owe fiduciary duty patient give patient access person medical record 21 dr cashman contends doctor patient relationship fiduciary nature doctor denies patient reasonable access medical file concerning patient breach fiduciary duty opinion submission must rejected 22 australian court consciously refrained attempting provide general test determining person class person stand fiduciary relationship one another counsel dr williams pointed term fiduciary relationship defies definition hospital product ltd v united state surgical corporation 100 gibbs cj said doubt fruitful attempt make generalstatement circumstance fiduciary relationship found exist fiduciary relation different type carrying different obligation test might seem appropriate determine whether fiduciary relationship existed one purpose might quite inappropriate another purpose example relation physician patient priest penitent may described fiduciary question whether presumption undue influence may le likely relevant alleged conflict duty interest question 23 law stand doctor patient relationship accepted fiduciary relationship sense relationship trustee beneficiary agent principal solicitor client employee employer director company partner recognised fiduciary relationship 101 hospital product 102 mason j pointed relationship fiduciary act representative character exercise responsibility doctor generally even primarily representative patient 24 however category fiduciary relationship closed 103 court identified various circumstance present point towards determine existence fiduciary relationship circumstance exhaustive may overlap included existence relation confidence 104 inequality bargaining power 105 undertaking one party perform task fulfil duty interest another party 106 scope one party unilaterally exercise discretion power may affect right interest another 107 dependency vulnerability part one party cause party rely another 108 25 aspect doctor patient relationship exhibit characteristic court used find fiduciary relationship example mundane consultation general practitioner complicated surgical procedure specialist surgeon patient invariably dependent upon advice treatment doctor patient also invariably confide intimate personal detail doctor circumstance dependency patient provision confidential information may make relationship doctor patient fiduciary nature mean relationship would fiduciary purpose mason j pointed hospital product 109 person may stand fiduciary relationship another one purpose others 26 birtchnell v equity trustee executor agency co ltd 110 dixon j said considering operation fiduciary principle necessary ascertain subject matter fiduciary obligation extend present case dr williams owed fiduciary duty m breen duty obligation arose fiduciary relationship could come aspect relationship exhibited characteristic trust confidence vulnerability typify fiduciary relationship 111 could attach respect matter relate diagnosis advice treatment 27 consideration fundamental obligation fiduciary show dr williams owed fiduciary duty m breen give access record created law fiduciary duty rest much morality conscience acceptance implication biblical injunction n man serve two master 112 duty self interest like god mammon make inconsistent call faithful equity solves problem practical way insisting fiduciary give undivided loyalty person serve bray v ford 113 lord herschell said inflexible rule court equity personin fiduciary position respondent unless otherwise expressly provided entitled make profit allowed put position interest duty conflict appear rule said founded upon principle morality regard rather based consideration human nature danger circumstance person holding fiduciary position swayed interest rather duty thus prejudicing bound protect therefore deemed expedient lay positive rule present case impossible identify conflict interest unauthorised profit loss resulting breach duty 28 dr cashman submitted dr williams conflict interest letter m breen dated 10 august 1993 offered release record subject condition m breen release legal claim arising treatment dr cashman contended condition evidenced dr williams desire secure legal advantage release information conflicted duty act time best interest patient leaving aside problem identifying basis upon duty act time m breen best interest grounded argument without substance correct would lead anomalous result breach fiduciary relationship would exist doctor unconditionally denied request reasonable access breach fiduciary obligation would exist denial conditional unacceptable duty must precede breach tito v waddell 2 114 megarry vc pointed fiduciary duty equitable rule aboutself dealing apply self dealing impose duty equity base rule self dealing upon pre existing fiduciary duty disregard pre existing duty subject self dealer consequence self dealing rule think one take person subject pre existing fiduciary duty say self deal thereupon subjected fiduciary duty present case breach fiduciary duty conditional denial access pre existing duty part dr williams give access record 29 also impossible identify profit dr williams may derived relationship beyond payment authorised professional fee case one dr williams seek make made profit confidential information obtained course relationship m breen 30 problem reconciling alleged fiduciary duty act best interest m breen right obligation dr williams m breen also make difficult see could fiduciary duty give access record relating medical treatment hospital product mason j explained relationship fiduciary obligation contractual right obligation follows 115 contractual fiduciary relationship may co existbetween party never doubted indeed existence basic contractual relationship many situation provided foundation erection fiduciary relationship situation contractual foundation important contract regulates basic right liability party fiduciary relationship exist must accommodate term contract consistent conforms fiduciary relationship cannot superimposed upon contract way alter operation contract intended according true construction 31 right access claimed m breen one given contract dr williams arise undertaking express implied dr williams act representative m breen undertaking given moreover contract party give right interest medical record remain property dr williams 116 furthermore fiduciary duty dr williams would always act m breen best interest foundation claim fiduciary obligation provide access record would conflict narrower contractual tortious duty exercise reasonable care skill provision professional advice treatment dr williams undertook 32 addition dr williams owner copyright record federal law ownership copyright give dr williams number exclusive proprietary right including right reproduce record material form 117 beneficial owner right hold trust m breen absence undertaking express implied part dr williams allow copy record difficult see m breen could allowed copy record even right access record 33 view basis upon court hold dr williams owed m breen fiduciary duty give access medical record seek impose fiduciary obligation class relationship traditionally recognised fiduciary nature would significantly alter already existing complex legal doctrine governing doctor patient relationship particularly area contract tort sopinka j remarked norberg v wynrib 118 fiduciary duty superimposed commonlaw duty simply improve nature extent remedy 34 dr cashman relied strongly decision supreme court canada mcinerney v macdonald 119 support contention dr williams owed m breen fiduciary duty give access medical record mcinerney supreme court held doctor owed fiduciary duty patient allow access medical record subject certain condition la forest j delivered judgment court holding doctor owes duty patient act utmost good faith loyalty 120 said 121 fiduciary duty provide access medical record isultimately grounded nature patient interest record nformation oneself revealed doctor acting professional capacity remains fundamental sense one doctor position one trust confidence information conveyed held fashion somewhat akin trust doctor owner actual record information used physician benefit patient confiding information physician medical purpose give rise expectation patient interest control information continue 35 later lordship said 122 trust like beneficial interest patient theinformation indicates general rule right access information physician corresponding obligation provide patient interest information follows interest continues information conveyed another doctor becomes subject duty afford patient access information 36 however country possible regard doctor patient relationship one doctor general duty act utmost good faith loyalty patient medical practitioner undertakes treat advise patient medical matter law imposes medical practitioner duty exercise reasonable care skill provision professional advice treatment 123 general duty act utmost good faith loyalty 37 secondly great respect la forest j help analysis legal issue present class case say information held fashion somewhat akin trust expectation patient control information continue information property 124 moreover control patient information given doctor restrain improper use 125 trust equity require doctor record account even remember information equity suit patient prevent doctor destroying record contain information record property doctor may restrained using information make unauthorised profit disclosing information unauthorised person otherwise record save destroy idea doctor shred record treatment living patient necessarily breach fiduciary duty owed patient untenable 38 furthermore judgment la forest j deal fact medical record patient often perhaps usually contain much information patient given doctor addition observation concerning patient condition note recording treatment research record may contain comment doctor personality conduct patient may also contain information concerning patient doctor obtained source patient right relation control information come think legal principle would give patient even faintly arguable case access information record additional patient given relationship doctor patient status based fiduciary relationship doctor general fiduciary duty relation dealing concerning patient patient might entitled access information medical record general fiduciary duty 39 la forest j said fiduciary duty provide access medical record ultimately grounded nature patient interest record 126 however patient legal right respect significant part information contained medical record patient legal right access medical record merely given personal confidential information doctor would seem follow journalist accountant bank officer anybody else receiving personal confidential information always fiduciary duty give access record person gave information 127 40 thirdly canadian law fiduciary duty different law country respect subject one commentator recently pointed vast difference australia canada understanding nature fiduciary obligation 128 one significant difference tendency canadian court apply fiduciary principle expansive manner supplement tort law provide basis creation new form civil wrong 129 canadian case also reveal tendency view fiduciary obligation proscriptive prescriptive 130 however australian court recognise proscriptive fiduciary duty place explore difference law canada law australia topic great respect canadian court however many case jurisdiction pay insufficient regard effect imposition fiduciary duty particular relationship law negligence contract agency trust company application relationship 131 many canadian case pay insufficient regard fact imposition fiduciary duty often give rise proprietary remedy affect distribution asset bankruptcy insolvency 41 country fiduciary obligation arise person come obligation act another interest result equity imposes fiduciary proscriptive obligation obtain unauthorised benefit relationship position conflict obligation breached fiduciary must account profit make good loss arising breach law country otherwise impose positive legal duty fiduciary act interest person duty owed 132 general fiduciary duty act best interest patient would necessarily follow doctor duty inform patient breached contract guilty negligence dealing patient law country 42 australia therefore mcinerney cannot regarded persuasive authority country court cannot use law fiduciary duty provide relief m breen granted would effect imposing novel positive obligation dr williams maintain furnish medical record m breen follows dr williams owe m breen fiduciary duty give m breen access medical record relate treatment right know 43 dr cashman contended law australia governing doctor patient relationship moved moving towards recognition patient right know reason court hold patient right access medical record concerning person argued relying particularly decision court rogers v whitaker 133 movement recognisable law five way acceptance principle personal inviolability rejection paternalistic approach previously accepted rejection notion patient interest determined standard exclusively fixed medical profession imposition judicially imposed standard acceptance patient autonomy dr cashman contend however movement law gave m breen right access argued rather suggested advanced validity argument 44 recent decision australian court rejected attempt treat doctor patient relationship basically paternalistic would require quantum leap legal doctrine justify relief dr cashman contends rogers took away medical profession country right determine proceeding negligence amount acceptable medical standard decision also rejected notion patient right self determination providing real assistance balancing process involved determination whether breach duty disclosure 134 change law must parliament45 doubt people country think patient unrestricted right access medical record concern patient many others m breen among doubt think patient access record subject limited exception perhaps small minority person australia would think circumstance patient access information contained medical record absent contractual right common law australia give patient right access record compiled medical practitioner relate patient reason given possible court develop existing principle create right 46 advance common law must begin baseline accepted principle proceed conventional method legal reasoning judge authority invent legal doctrine distorts extend modify accepted legal rule principle change legal doctrine brought judicial creativity must fit within body accepted rule principle judge australia cannot speak make go along serious constitutional mistake think common law court authority provide solvent 135 every social political economic problem role common law court far modest one 47 democratic society change law cannot logically analogically related existing common law rule principle province legislature time time necessary common law court formulate existing legal rule principle take account changing social condition le frequently court may even reject continuing operation established rule principle step taken seen new rule principle created derived logically analogically legal principle rule institution 48 present case possible without distorting basis accepted legal principle court create either unrestricted right access medical record right access subject exception change made must made legislature order49 appeal dismissed gummow j introductionthe respondent medical practitioner 1978 consulted appellant treated proceeding appellant seek establish enforce legal entitlement access purpose may record possession custody control respondent contain information relating provision treatment advice respondent particular appellant asserts legal right upon reasonable request given access respondent examine obtain copy record whether copying provision copy reasonable cost 2 broadly respondent position accept patient former patient right informed relevant factual information contained medical record patient deny entitlement patient examine record obtain copy 3 respondent submits stance accordance relevant resolution federal council australian medical association ama meeting 29 30 october 1993 ama resolved follows ama endorses following guideline patient access record concerning medical treatment patient right informed relevantfactual information contained medical record deductive opinion therein recorded remains intellectual property doctor doctor contributing recognised employing hospital organisation maintaining record appropriate deductive opinion may separately recorded request patient informed allcontent following section medical record historyphysical examination findingsinvestigation resultsdiagnosis diagnosis proposed management planthe patient allowed access contentsof medical record report specialist beyond material specified discretion doctor doctor completed additional section section hospital administration consultation doctor completed section section result legal requirement doctor hospital entitled recoup cost ofproviding information contained medical record patient legally authorised requestor sic information emphasis added fact history proceedings4 october 1977 appellant underwent surgical procedure small silicone implant inserted left breast larger implant right breast operation performed another medical practitioner august 1978 appellant consulted respondent dr williams dr williams practised sydney since 1974 consultant surgeon specialising plastic surgery appellant consulted respect condition following surgical procedure october 1977 facial scarring two consultation concerning matter august september 1978 november year respondent operated appellant general anaesthetic perform bilateral capsulotomy compression hard capsule developed since earlier surgical procedure respondent consultation appellant may 1983 wrote concerning plastic surgery including removal breast implant replacement larger implant correspondence concerning possible treatment continued september 1983 5 1984 appellant noticed development lump left breast diagnosed leakage silicone gel breast implant operative procedure performed another medical practitioner 6 practice respondent maintain file respect patient usually include handwritten note containing variety information bearing upon matter description provided patient patient medical condition circumstance patient referred respondent respondent note observation upon examination patient conclusion relation thereto including respondent called medical musing patient condition communication practitioner treating patient family friend patient respondent reason believe suspect may criticism treatment advice keep short note information development may bear upon future dispute note written abbreviated fashion conveys meaning respondent might difficult others follow 7 1993 appellant many others australia united state country became involved litigation various party including manufacturer breast implant dow corning corporation numerous class action commenced united state district court 16 manufacturer silicone gel breast implant including dow corning corporation 25 june 1992 judicial panel multidistrict litigation ordered action transferred united state district court northern district alabama co ordinated consolidated pre trial proceeding 136 order court made 1 september 1994 australian litigant excluded proposed settlement court afforded opportunity opt term opting procedure claimant including present appellant file united state court copy medical record support claim wished propound 8 setting appellant commenced proceeding equity division supreme court new south wale appellant failed first instance bryson j crucial passage honour reasoning follows respondent made appellant medicaladviser purpose making collector repository information appellant available whatever purpose chose collecting retaining information purpose relationship subsidiary purpose lead medical advice treatment administered referral judgment unconscionable respondent retain information keep except insofar required purpose treatment doctor put position receive compile retain information purpose available required whatever purpose required 9 appeal court appeal dismissed majority mahoney meagher jja kirby p dissenting 137 10 dissenting judgment kirby p would granted appellant relief term 138 declare appellant right upon request given reasonable access respondent examine copy reasonable cost obtain copy record information concerning created obtained respondent course providing medical treatment advice recorded medical record tangible form possession custody control respondent subject exclusion therefrom record information respondent may lawfully exclude access b declare respondent may lawfully refuse toprovide access appellant record information possession created obtained solely benefit therespondent conduct practice respect may lawfully claim legal professional privilege ii disclosure respondent reasonablybelieves likely cause serious harm physical mental health appellant ii disclosure would found action forbreach confidence c order respondent provide appellant withreasonable access record information possession custody control aforesaid concerning appellant subject exclusion therefrom record information respect respondent lawful excuse providing access 11 three matter identified second declaration respond contention advanced dr williams imposition general obligation disclosure would impinge upon right legal professional privilege could conflict obligation confidence owed third party may require disclosure material likely cause harm health patient last mentioned matter described therapeutic privilege discovery12 face relief kirby p would given appellant contends court bear resemblance order particular discovery might made aid opt procedure laid united state district court question whether inherent jurisdiction court equity supreme court would authority make order jurisdiction regard invoked appellant contrary asserted submission court 13 dealing bill discovery old procedure story wrote 139 constitutes objection bill discovery thatit assist proceeding court sits foreign country amity bill filed exercise comity mutual necessity mutual convenience nation prescribe intercourse hare 140 mitford 141 chancellor kent 142 view later english decision notably shadwell v c bent v young 143 kay j dreyfus v peruvian guano company 144 appeared decide court chancery high court justice would entertain action discovery aid proceeding foreign court least unless appeared foreign suit instituted discovery essential foreign court could compel discovery sought 145 also suggested bent v young 146 contemplation court chancery every foreign court inferior court way england ecclesiastical court treated court inferior court chancery however reasoning decisively rejected united state notably judgment field j post v toledo cincinnati st louis railroad company 147 honour referred earlier united state authority decision chancellor kent mitchell v smith 148 stated suggestion foreign court treated status domestic inferior court require serious consideration 149 14 moreover recent development england revived perhaps extended previous jurisdiction entertain bill discovery norwich pharmacal v custom excise 150 house lord held proposition discovery lie mere witness bar action discovery disclosure plaintiff identity wrongdoer whose tortious act respondent innocently become involved decision applied british steel v granada television 151 recently mercantile group ag v aiyela 152 hoffmann lj gave leading judgment court appeal held discovery limited finding identity tortfeasor lordship referred banker trust co v shapira 153 discovery ordered bank innocently received proceeds fraud purpose discovery trace happened money 15 accordingly may accepted would within inherent jurisdiction supreme court court equity make order particular discovery term resembling relief kirby p would granted would sufficient objection existence jurisdiction relief sought assist appellant complying opt procedure laid united state district court relief sought party united state litigation stranger much appeared common ground court 16 one consideration would arise deciding grant relief would availability alternative compulsory court process one possibility would issue letter rogatory united state district court australian litigant party proceeding take course present case kirby p 154 observed whilst order made judge supreme court new south wale response letter rogatory obtained litigant cost delay complication procedure significant 17 however matter raised hearing appeal court appellant expressly disavowed reliance upon law discovery aid foreign proceeding foundation relief seek 18 moreover united state proceeding appears standstill court granted special leave appeal decision court appeal 12 may 1995 hearing appeal court informed 15 may 1995 certain step taken respect defendant united state proceeding ch 11 united state statute bankruptcy reform act 1978 effect staying order made district court 1 september 1994 155 right asserted appellant19 submitted court objective proceeding country obtain assistance described aid united state action also information relating appellant personal health information ensure able make decision regarding future treatment 20 argument appellant shifted ground asserted right contended arose enforceable regardless purpose moved assert accordingly appellant contends one might describe free standing legal right exercised vindicated declaratory relief term specified kirby p set earlier reason 21 appellant argued unsuccessfully court appeal 156 legal doctrine right know provided sufficient support claim submission abandoned course argument court 22 letter dated 10 august 1993 addressed appellant respondent replied request solicitor copy medical record saying part well know longstanding legal tradition inthis country record doctor property aide memoire treatment patient may released production court subpoena accordingly advice received medicaldefence legal advisor situation still hold would happy release record supply document would release claim might arise relation treatment unacceptable appellant reason condition requiring provision release claim might respect treatment respondent later trial equity division counsel dr williams announced court instructed make offer open court forthe respondent provide report writing appellant content document comprised document marked 1 identification relating following history physical examination finding investigation result diagnosis proposed management plan treatment advice furnished appellant tenor offer report convey information set full text document held respondent thus still unacceptable appellant 23 material marked mfi1 referred counsel respondent dr williams file reason appear never tendered evidence result primary judge left infer evidence content file footing bryson j found file contained handwritten note dr williams correspondence patient might also included letter reporting referral doctor hospital advice slip communication new south wale medical defence union photograph patient taken assist diagnosis treatment 24 absence clear unequivocal finding identity content record held respondent significance repeated reference appellant submission test case consequence impede effective operation doctrine precedent seek provide appropriate measure certainty law rather involved attempt establish abstract principle law derived firm foundation fact provided case 25 however appellant asserts right given law respondent denies existence right therefore determine controversy contract26 relationship medical practitioner patient may engage law various respect traditionally contractual relationship medical practitioner performing service consideration fee payable patient 157 established pattern may require adjustment accommodate wholly partly state operated financed health scheme established statute bulk billing provision thehealth insurance act 1973 cth considered edelsten v health insurance commission 158 provide example 27 appellant understand submitted right existence contended term contract respondent exiguous evidence form taken express term contract appellant respondent provision medical advice treatment make difficult appellant succeed contention term question give effect apparent underlying intention party provision business efficacy contract contract reduced complete written form question whether implication term necessary reasonable effective operation contract circumstance case seen term implied 159 28 indicated appellant asserts merely term confers upon appellant right informed respondent reasonable request relevant factual material contained medical record case court might well accept existence term understand position adopted court respondent would deny existence moreover time go ground strengthen importation term contract doctor patient accord ama resolution set earlier reason may become customary sense described con stan industry australia pty ltd v norwich winterthur insurance australia ltd 160 appellant go claim entitlement examine record obtain copy 29 view cannot said term form necessary reasonable effective operation contract term form urged appellant imported give effect tacit intention party circumstance case 30 term imported law contract particular class namely provision treatment advice medical practitioner patient absence expression contrary intent certainly held england law implies term contract medical practitioner patient former keep affair latter secret disclose without cause 161 however could said would need case unless term appellant contends implied matter law enjoyment right conferred upon patient contract medical practitioner would could rendered nugatory worthless perhaps seriously undermined 162 informed consent 31 reference made submission statement principle court rogers v whitaker 163 supportive doctrine informed consent case action negligence court considering duty medical practitioner exercise reasonable care skill provision professional advice treatment particular issue whether appellant failure advise warn respondent risk inherent particular operation undergone constituted breach duty court determined except case emergency disclosure would prove damaging patient called therapeutic privilege medical practitioner duty warn patient material risk inherent proposed treatment risk material circumstance particular case reasonable person position patient warned risk would likely attach significance medical practitioner reasonably aware particular patient warned risk would likely attach significance 32 formulation principle made purpose tort negligence elucidation overall duty care owed patient medical practitioner court observed 164 context considering matter nothing gained reiterating expression used american authority patient right self determination even oft used somewhat amorphous phrase informed consent court pointed phrase informed consent apt mislead suggests test validity patient consent moreover consent relevant action framed trespass negligence 33 may added fiduciary law informed consent answer circumstance otherwise indicate disloyalty mainspring equitable liability united state phrase informed consent area legal discourse appears represent assumed synthesis tort negligence principle fiduciary duty law 165 privy council house lord recently cautioned process 166 fundamental principle answer claim erring fiduciary plaintiff gave informed consent full frank disclosure material fact 167 alleged breach duty however seems united state translated free standing action damage brought medical practitioner patient failure treat patient informed consent patient 168 34 law australia established rogers v whitaker manner described impossible extract formulation principle decision support existence legal right asserted appellant case indeed event appellant seek remedy respondent failure treat fully informed consent complaint respondent rather claim legal right inspect take copy record property rights35 appellant also sought draw support right asserts complex equitable institution doctrine dealing fiduciary duty confidential information undue influence unconscientious transaction nature considered authority louth v diprose 169 36 extent submission reflect imperfect understanding basic matter law personal property submission concern classification property information contained record question submission appellant appear reflect confusion thought appropriate proceeding draw several basic distinction 37 first understand submission appellant contend u contended court appeal 170 owned relevant record concession court appeal agreed 171 correctly made document question including photograph chattel ownership right exclusive possession appear enjoyed respondent access record would incident right would protected invasion law tort particular action detinue conversion thus moorhouse v angus robertson 1 pty ltd 172 mclelland j held cause action detinue established author publisher reason failure comply demand return original manuscript 38 new york held ownership medical file deceased physician pass executor property therein vested physician patient 173 former patient several hospital new york wherein voluntary patient treatment mental illness held lack sufficient property interest medical record relating treatment protection fourteenth amendment united statesconstitution deprivation property without due process law reason refusal hospital grant access record 174 39 secondly appellant submission gave insufficient allowance operation field copyright law matter federal statute composition medical practitioner material shown record may involved authorship whilst literary quality nevertheless literary work purpose copyright law would vest various exclusive proprietary right including reproduce work material form 175 pacific film laboratory pty ltd v federal commissioner taxation 176 windeyer j referred fundamental distinction copyright incorporeal property property material thing subject copyright essence former power prevent making reproduction material form honour referred authority including dickens 177 illustrates distinction proper construction charles dickens bequeathed manuscript unpublished work sister law residuary estate including copyright unpublished work child ownership manuscript would carry right publish reproduce 40 unlikely medical practitioner would made literary work pursuance term employment patient classified contract service patient owner copyright 178 ownership copyright photograph artistic work 179 would pursuant tos 35 5 thecopyright act 1968 cth vest patient within meaning provision patient made valuable consideration agreement taking photograph taken pursuance agreement 41 copyright respondent would infringed anything done purpose judicial proceeding 180 would infringement act pursuant licence permission might express implied 181 42 however circumstance present case disclosed evidence provide support existence copyright licence consent given appellant either expressly implication appear licence implied contract medical practitioner patient matter law sense described earlier reason 43 distinction drawn one hand property physical material record appear literary work might represented record question hand third possible source juristic right may sought information might conveyed reader record 182 however federal commissioner taxation v united aircraft corporation 183 latham cj said authority relate property composition andc belong law copyright bearing upon question whether knowledge information property loose metaphorical sense knowledge said property remark understood light development largely since made equitable jurisdiction equity misuse confidential information may restrained subject matter confined trade secret extends information personal affair private life plaintiff sense may protective privacy 184 44 equitable jurisdiction exists accepted least two occasion appeal court 185 outcome mason j commonwealth australia v john fairfax son ltd 186 illustrates claim copyright infringement abuse confidence made respect one factual matrix may fail one succeed 45 medical practitioner said obligation equity disclose confidential information concerning patient learned course professional practice obligation medical practitioner may released express implied consent patient 187 present case apprehended breach obligation confidence owed respondent appellant 46 acceptable argue circumstance restraint apprehended continued breach confidence may involve enjoining third party gaudron j explained john v australian security commission 188 follows plaintiff asserts obligation confidence therefore proprietary right information question turn found new specie legal right view substance appeared appellant submission existence obligation confidence owed respondent brought proprietary right founded claim particular relief seek litigation canadian authority47 appellant also relied upon decision supreme court canada reasoning appears least part informed consideration property law decision mcinerney v macdonald 189 decision case 190 absence regulatory legislation patient isentitled upon request inspect copy information patient medical file physician considered administering advice treatment considering equitable base patient entitlement general rule access subject superintending jurisdiction court onus physician justify denial access 48 however precise issue case somewhat narrower one regard outcome litigation uphold order primary judge court queen bench new brunswick dr mcinerney provide mr macdonald patient copy document received five physician previously treated respondent together written opinion respondent medical condition prepared consultant request physician dr mcinerney cooperated patient extent providing fee copy note memoranda report prepared refused deliver copy document footing property physician would ethical release report record 191 49 time case reached supreme court canada mr macdonald obtained copy material question interest contesting appeal 192 counsel appeared amicus curia 50 judgment supreme court canada delivered la forest j lordship began defining broad term central issue whether absence legislation patient entitled upon request obtain copy patient medical record 193 la forest j dealt follows identified nature interest patient record 194 discussed earlier information oneself revealed toa doctor acting professional capacity remains fundamental sense one doctor position one trust confidence information conveyed held fashion somewhat akin trust doctor owner actual record information used physician benefit patient confiding information physician medical purpose give rise expectation patient interest control information continue trust like beneficial interest patient theinformation indicates general rule right access information physician corresponding obligation provide patient interest information follows interest continues information conveyed another doctor becomes subject duty afford patient access information passage read mind particular issue dispute provision dr mcinerney record prepared delivery report record prepared physician come possession appeal presented present dispute event would respect reasoning la forest j share view proprietary analysis equitable obligation confidence assist field appellant seek order delivery record question aid allegation abuse confidence dr williams british authority51 appellant also relies upon submitted common law right established decision english court appeal r v mid glamorgan family health service 195 proceeding judicial review decision made two respondent regional health authority established pursuant legislation court appeal held health authority owner medical record patient obliged administer property accordance public purpose fulfilment duty meant authority bound deal record way private physician 196 followed authority might deny patient access medical record best interest patient 52 authority refused make voluntary disclosure record direct plaintiff footing would detrimental best interest however authority offered sight record applicant medical adviser court appeal held taking step authority necessary comply duty applicant particular issue concerned lordship identified nourse lj opening paragraph judgment 197 whether doctor health authority owner medical record patient entitled deny patient access ground disclosure would detrimental patient copying contrast inspection record appear sought effect decision mid glamorgan family health service whatever otherwise might right patient health authority owner record might deny patient access best interest patient example disclosure would detrimental health patient 53 sir roger parker observed 198 circumstance patient former patient entitled demand access medical history set record would infinitely various neither desirable possible set scope duty afford access scope patient right demand access decision english court appeal thus provide adequate foundation existence particular common law right appellant propounds appeal one commentator identified absence solid legal foundation judgment right access 199 54 scotland authority contrary english decision one submission boyle v glasgow royal infirmary associated hospital 200 second pursuer legally entitled time see record hospital treatment necessary recover complete record treatment received submission rejected court session lord cameron said word indicative reasoning akin bryson j present case 201 record patient condition treatment notkept purpose made available patient call full complete record patient condition treatment response reaction treatment may kept may valuable adjunct research advancement medical science may valuable treatment patient recurrent circumstance obvious make keep must wholly free state fully frankly note express record equitable doctrine fiduciary duty55 dealt reliance appellant upon contract appellant indicated also relies upon incident relationship medical practitioner patient may attract equitable intervention opinion substance submission 56 however follows understood supporting existence necessary antipathy concurrent contractual fiduciary obligation law partnership obvious example concurrence mere presence contract exclude co existence concurrent fiduciary duty contract may particular circumstance provide occasion existence 202 deny contractual term may precise regulation party may scope creation fiduciary duty 203 57 case improvident transaction medical practitioner patient product unconscientious pressure influence exerted upon patient johnson v buttress 204 dixon j said physician must justify receipt substantial benefit patient way must solicitor respect client guardian ward honour said 205 party antecedently stood relation gave one authority influence abuse proper protection party position influence cannot maintain hisbeneficial title property substantial value made gift unless satisfies court took advantage donor gift independent well understood act man position exercise free judgment based information full donee said directly bear upon situation appeal concerned however dixon j went passage observe doctrine throw upon recipient burden justifying transaction rest upon particular principle principle honour said 206 applies whenever one party occupies assumes towardsanother position naturally involving ascendancy influence dependence trust part one occupying position fall duty fiduciary characteristic may seen duty use position influence interest one man governed judgment give dependence entrusts welfare emphasis added 58 reasoning developed la forest j following passage recent judgment hodgkinson v simms 207 concept unequal bargaining power undueinfluence also often linked discussion fiduciary principle claim based cause action true often arise context professional relationship side side claim related duty care fiduciary duty indeed three equitable doctrine designed protect vulnerable party transaction others however whereas undue influence focus sufficiency consent unconscionability look reasonableness given transaction fiduciary principle monitor abuse loyalty reposed thus existence fiduciary relationship often give rise opportunity fiduciary gain advantage undue influence possible fiduciary gain advantage without resort coercion similarly doctrine unconscionability triggered abuse pre existing inequality bargaining power party inequality necessary element fiduciary relationship factor trust loyalty necessary condition claim unconscionability emphasis added 59 conformably reasoning gibbs cj brennan j daly v sydney stock exchange ltd 208 relationship medical practitioner patient seek skilled confidential advice treatment fiduciary one regardless whether relationship party one give medical practitioner special opportunity affect interest patient vulnerable abuse fiduciary position medical practitioner undertakes exercise professional skill benefit patient particular reliance placed upon medical practitioner patient 209 60 advice given physician patient involves specialised knowledge matter skill judgment render advice difficult impossible objective unassisted assessment patient hence particular reliance placed upon physician real sense especially invasive procedure upon person patient involved patient delegated control person providing health care patient obtain benefit sought relationship patient often must reveal confidential intimate information personal nature medical practitioner finally effort medical practitioner may significant impact merely economic upon fundamental personal interest patient consideration professor de mott pointed serve emphasise fiduciary element relationship medical practitioner patient 210 61 however reach stage reasoning attain destination desired appellant first necessary consider whether relationship party give rise fiduciary obligation also extent obligation particular case subject matter fiduciary obligation extend 211 may identified breach apprehended breach plaintiff seek relief court equity subject matter provision medical treatment course consultation patient 62 secondly discussion principle deane j chan v zacharia 212 identifies fundamental objection equity pursuit fiduciary personal interest conflict interest fiduciary bound protect likewise fiduciary obliged enter upon conflicting engagement several party fiduciary example solicitor acting vendor purchaser may unable discharge adequately one obligation without conflicting requirement observance obligation 213 63 indicated earlier reason one answer otherwise would breach duty presence informed consent 214 court equity inherent jurisdiction power authorise least case entry transaction otherwise would breach duty 215 64 fiduciary brought account benefit gain 1 obtained received circumstance conflict significant possibility conflict existed fiduciary duty personal interest pursuit possible receipt benefit gain 2 obtained received use reason fiduciary position opportunity knowledge resulting 216 breach duty produce gain fiduciary loss party fiduciary duty owed judgment viscount haldane lc nocton v lord ashburton 217 sir owen dixon mckenzie v mcdonald 218 show obligation account loss provision equitable compensation 65 none avail appellant circumstance present case issue would arise example medical practitioner advised patient undergo treatment particular private hospital medical practitioner undisclosed financial interest medical practitioner prescribed one number equally suitable pharmaceutical drug undisclosed reason assisted practitioner obtain undisclosed side benefit manufacturer 66 moore v regent university california 219 appeal allowed decision allow demurrer cause action pleaded breach fiduciary duty plaintiff alleged physician treated leukaemia withdrawn body blood bone marrow substance unknown plaintiff use physician confederate establishing cell line respect patent obtained physician negotiated agreement commercial development cell line product derived court deciding good cause action pleaded pointed conflict interest duty involved research commercial interest physician might tempt order test procedure offered marginal benefit patient 220 67 case adapt language la forest j hodgkinson v simms 221 fiduciary principle would monitor abuse loyalty reposed medical practitioner patient abuse duty would involve derivation benefit gain use reason fiduciary position opportunity knowledge resulted 68 present case unless respondent accedes right asserted appellant proceeding respondent derived gain benefit expense patient beyond agreed fee dr williams put position interest conflict patient pointed court appeal case 222 show medical practitioner owes fiduciary duty certain circumstance patient demonstrate right patient inspect take copy note record medical practitioner 69 regard care required translating fiduciary law general particular principle developed administration trust particularly express trust constituted settlement example many case lord browne wilkinson identified traditional trust 223 trustee stand fiduciary relationship previously unknown unborn beneficiary element subjective trust confidence trustee reposed testator settlor beneficiary specie constructive trust equity imposes trust irregardless confidence reposed trustee 70 express trust effectively constituted term trustee obliged manage trust business trustee required observe term trust exercise care ordinary prudent person business would exercise conduct business well accepted gloss adjunct requirement relation exercise power investment trust fund pending distribution become absolutely entitled 224 trustee course fiduciary obligation arise particular characteristic fiduciary obligation generally trust holding legal title property duty deal benefit charitable purpose one person least one sole trustee 71 trustee obligation supply proper foundation imposition upon fiduciary general quasi tortious duty act solely best interest principal agree observation gaudron mchugh jj upon appears contrary tendency canadian decision expressed earlier reason view use united state authority phrase informed consent 72 fiduciary obligation arise albeit perhaps exclusively various situation may seen one person obligation act interest another equitable remedy available fiduciary place interest conflict duty derives unauthorised profit abuse duty would stand established principle head reason equity considers defendant fiduciary therefore defendant legal obligation act interest plaintiff failure fulfil positive obligation represents breach fiduciary duty conclusions73 mcinerney v macdonald 225 said supreme court canada patient denied access record held physician might possible patient establish medical practitioner fulfilled duty act utmost good faith loyalty patient said improper conduct doctor dealingswith patient ought revealed purpose keeping document secret promote proper functioning relationship facilitate improper conduct 74 statement several point may made present relevance first appellant seek provision information contained document offer provide report suggested would incomplete inaccurate extra curial right obtain without prior invocation process court discovery inspection secondly record question would liable discovery compulsory process appellant eschewed course thirdly suggestion made respondent impropriety variety including alleged breach fiduciary duty described duty 75 engagement respondent advise treat appellant document question brought existence respondent gathered purpose providing advice treatment interest patient case former patient one might think protected general law presently stand various application sought outline reason 76 right asserted appellant exist compelling ground brought existence immediate interest appellant stemming litigation united state may met manner outlined earlier reason principle tort contract equity outlined interact protect concern appellant receiving confidential advice skilful treatment respondent without abuse special position occupies 77 appeal dismissed cost 1 analogy may found solicitor entitlement payment providing copy document though related client affair belong client thomson 1855 engr 509 1855 20 beav 545 52 er 714 mcinerney v macdonald 1990 66 dlr 4th 736 744 new brunswick court appeal thomson cited support conclusion patient entitled access doctor record respect think thomson provides support 2 hawkins v clayton 1988 164 clr 539 573 per deane j 3 bp refinery westernport pty ltd v shire hastings 1977 180 clr 266 283 secured income real estate australia ltd v st martin investment pty ltd 1979 hca 51 1979 144 clr 596 605 606 codelfa construction pty ltd v state rail authority nsw 1982 hca 24 1982 149 clr 337 346 heimann v commonwealth australia 1938 38 sr nsw 691 695 4 leicestershire county council v michael faraday partner ld 1941 2 kb 205 216 chantrey martin v martin 1953 2 qb 286 5copyright act 1968 cth s 13 31 36 commonwealth australia v john fairfax son ltd 1980 hca 44 1980 147 clr 39 58 6 1966 ukhl 2 1967 2 ac 46 127 128 7 1984 hca 73 1984 156 clr 414 438 see also smith kline french v secretary department community service health 1989 fca 384 1990 95 alr 87 135 136 per gummow j 8 see example united dominion corporation ltd v brian pty ltd 1985 hca 49 1985 157 clr 1 12 13 9 birtchnell v equity trustee executor agency co ltd 1929 hca 24 1929 42 clr 384 408 409 10 johnson v buttress 1936 hca 41 1936 56 clr 113 134 135 11 birtchnell 1929 42 clr 384 409 per dixon j 12 1911 1 ch 723 728 729 13 chan v zacharia 1984 hca 36 1984 154 clr 178 195 14 1984 hca 64 1984 156 clr 41 102 see also 73 per gibbs cj 15 1984 hca 64 1984 156 clr 41 69 16 johnson v buttress 1936 hca 41 1936 56 clr 113 134 17 1992 93 dlr 4th 415at 424 18 r v mid glamorgan fhsa ex parte martin 2 june 1993 time reported kennedy grubb medical law text material 2nd ed 1994 619 19 term appears origin united state see canterbury v spence 1972 464 f 2d 772 789 sidaway v governor bethlem royal hospital 1985 ukhl 1 1985 ac 871 889 20 see breen v williams 1994 35 nswlr 522 21 subsequently course appeal new south wale court appeal court appellant conceded respondent might also lawfully deny access information created solely benefit eg fee administrative record disclosure would found action breach confidence third person 22 see forster v jododex australia pty ltd 1972 hca 61 1972 127 clr 421 23 see ainsworth v criminal justice commission 1992 hca 10 1992 175 clr 564 581 582 24 1992 hca 58 1992 175 clr 479 25 see rogers v whitaker 1992 hca 58 1992 175 clr 479 483 26 see leicestershire county council v michael faraday partner ltd 1941 2 kb 205 216 27 1953 2 qb 286 293 see also wentworth v de montfort 1988 15 nswlr 348 authority discussed 28 1920 ac 581 626 29 1965 ch 918 932 933 per harman lj 935 per danckwerts lj 937 per salmon lj 30 see fairbairn deceased 1967 vicrp 72 1967 vr 633 637 638 simersall blackwell v bray 1992 fca 221 1992 35 fcr 584 588 cf hartigan nominee pty ltd v rydge 1992 29 nswlr 405 443 31 see federal commissioner taxation v united aircraft corporation 1943 hca 50 1943 68 clr 525 534 535 phipps v boardman 1966 ukhl 2 1967 2 ac 46 89 91 102 103 127 129 brent v federal commissioner taxation 1971 hca 48 1971 125 clr 418 425 federal commissioner taxation v sherritt gordon mine ltd 1977 hca 48 1977 137 clr 612 630 moorgate tobacco co ltd v philip morris ltd 1982 64 flr 387 404 affd 1984 hca 73 1984 156 clr 414 32 1989 fca 384 1990 22 fcr 73 121 affd 1991 fca 150 1991 28 fcr 291 33 see bp refinery westernport pty ltd v shire hastings 1977 180 clr 266 283 284 secured income real estate australia ltd v st martin investment pty ltd 1979 hca 51 1979 144 clr 596 605 606 codelfa construction pty ltd v state rail authority nsw 1982 hca 24 1982 149 clr 337 347 404 34 1988 164 clr 539 573 35 see discussion deane j hawkins v clayton 1988 164 clr 539 582 586 36 see w v egdell 1990 ch 359 389 37 see johnson v buttress 1936 hca 41 1936 56 clr 113 134 135 gibson v russell 1843 2 ccc 104 1843 engr 353 63 er 46 billage v southee 1852 engr 261 1852 9 hare 534 68 er 623 mitchell v homfray 1881 8 qbd 587 38 1984 hca 73 1984 156 clr 414 437 438 39 see meagher gummow lehane equity doctrine remedy 3rd ed 1992 ch 15 finn fiduciary principle youdan ed equity fiduciary trust 1989 1 17 18 glover commercial equity fiduciary relationship 1995 ch 8 40 1984 hca 64 1984 156 clr 41 96 97 41 see tito v waddell 2 1977 ch 106 229 42 see chan v zacharia 1984 hca 36 1984 154 clr 178 198 199 43 see finn fiduciary principle youdan ed equity fiduciary trust 1989 1 28 44 cf moore v regent university california 1990 793 p 2d 479 45 1992 hca 58 1992 175 clr 479 46 1992 hca 58 1992 175 clr 479 483 see also f v r 1983 33 sasr 189 47 sidaway v governor bethlem royal hospital 1985 ukhl 1 1985 ac 871 893 per lord diplock 48 gover v south australia 1985 39 sasr 543 551 49 1992 93 dlr 4th 415 50 see emmett v eastern dispensary casualty hospital 1967 396 f 2d 931 cannell v medical surgical clinic 1974 315 ne 2d 278 51 1992 93 dlr 4th 415at 424 52 mcinerney v macdonald 1992 93 dlr 4th 415at 423 53 see finn fiduciary principle youdan ed equity fiduciary trust 1989 1 28 29 parkinson fiduciary law access medical record breen v williams 1995 sydlawrw 26 1995 17 sydney law review 433 442 54 mcinerney v macdonald 1992 93 dlr 4th 415at 424 55 1989 echr 13 1989 12 ehrr 36 56 1995 1 wlr 110 1995 1 er 356 57 1994 5 med lr 383 court appeal decision also appears report 58 1994 5 med lr 383 392 59 1985 ac 871 904 60 r v mid glamorgan family health service 1995 1 wlr 110 117 1995 1 er 356 363 61 r v mid glamorgan family health service 1995 1 wlr 110 117 1995 1 er 356 363 62 1985 ac 871 884 63 1914 ac 932 64 1992 hca 58 1992 175 clr 479 65 bolam v friern hospital management committee 1957 1 wlr 582 1957 2 er 118 66 breen v williams 1994 35 nswlr 522 67 breen 1994 35 nswlr 522 542 545 68 leicestershire county council v michael faraday partner ltd 1941 2 kb 205 216 followed chantrey martin v martin 1953 2 qb 286 292 293 wentworth v de montfort 1988 15 nswlr 348 352 69 halsbury law england 4th ed vol 35 par 1128 70 sidaway v governor bethlem royal hospital 1985 ukhl 1 1985 ac 871 904 71 sidaway 1985 ukhl 1 1985 ac 871 903 see also rogers v whitaker 1992 hca 58 1992 175 clr 479 483 72 liverpool city council v irwin 1976 ukhl 1 1977 ac 239 254 cited hawkins v clayton 1988 164 clr 539 571 73 hospital product ltd v united state surgical corporation 1984 hca 64 1984 156 clr 41 139 per dawson j see generally carter harland contract law australia 3rd ed 1996 205 209 74 khoury v government insurance office nsw 1984 hca 55 1984 165 clr 622 636 citing moorcock 1889 14 pd 64 68 bp refinery westernport pty ltd v shire hastings 1977 180 clr 266 282 284 75 see generally carter harland contract law australia 3rd ed 1996 210 212 76 byrne v australian airline ltd 1995 hca 24 1995 69 aljr 797 817 1995 hca 24 131 alr 422 449 77 byrne 1995 69 aljr 797 817 1995 hca 24 131 alr 422 450 citing nullagine investment pty ltd v western australian club inc 1993 hca 45 1993 177 clr 635 647 648 659 78 glanville williams language law iv 1945 61 law quarterly review 384 401 see also carter harland contract law australia 3rd ed 1996 203 210 211 79 1985 ac 871 904 80 see parker parkinson behrens australian family law context 1994 729 81 rogers 1992 hca 58 1992 175 clr 479 483 82 see greave v baynham meikle 1975 1 wlr 1095 1100 3 er 99 103 104 83 carter harland contract law australia 3rd ed 1996 204 84 hawkins 1988 hca 15 1988 164 clr 539 582 583 85 hawkins 1988 hca 15 1988 164 clr 539 584 86 see example luxor eastbourne ltd v cooper 1941 ac 108 codelfa construction pty ltd v state rail authority nsw 1982 hca 24 1982 149 clr 337 87 see example secretary department health community service v jwb smb marion case 1992 hca 15 1992 175 clr 218 270 274 per brennan j 88 sidaway 1985 ukhl 1 1985 ac 871 903 89 sidaway 1985 ukhl 1 1985 ac 871 904 90 sidaway 1985 ukhl 1 1985 ac 871 903 91 jones medical negligence 1991 16 fn 9 92 sidaway 1985 ukhl 1 1985 ac 871 905 93 hawkins 1988 hca 15 1988 164 clr 539 571 citing bp refinery 1977 180 clr 266 283 moorcock 1889 14 pd 64 68 shirlaw v southern foundry 1926 ltd 1939 2 kb 206 227 94 1995 1 wlr 110 1 er 356 95 mid glamorgan family health service 1995 1 wlr 110 116 1 er 356 363 96 mid glamorgan family health service 1995 1 wlr 110 117 1 er 356 363 97 1985 ac 871 904 98 mid glamorgan family health service 1995 1 wlr 110 117 1 er 356 363 99 mid glamorgan family health service 1995 1 wlr 110 117 1 er 356 363 100 1984 hca 64 1984 156 clr 41 69 101 hospital product 1984 156 clr 41 96 102 1984 hca 64 1984 156 clr 41 97 103 hospital product 1984 156 clr 41 96 104 hospital product 1984 156 clr 41 69 citing tate v williamson 1866 lr 2 ch app 55 61 coleman v myers 1977 2 nzlr 225 325 105 hospital product 1984 156 clr 41 69 70 106 reading v king 1949 2 kb 232 236 hospital product 1984 156 clr 41 96 97 107 frame v smith 1987 42 dlr 4th 81cited lac mineral v international corona resource 1989 61 dlr 4th 14at 62 63 108 johnson v buttress 1936 hca 41 1936 56 clr 113 134 135 109 1984 hca 64 1984 156 clr 41 98 110 1929 hca 24 1929 42 clr 384 409 111 daly v sydney stock exchange ltd 1986 hca 25 1986 160 clr 371 377 112 matt 6 24 113 1896 ac 44 51 52 see chan v zacharia 1984 hca 36 1984 154 clr 178 198 199 114 1977 ch 106 230 115 hospital product 1984 156 clr 41 97 116 estate finkle 1977 395 ny 2d 343 344 345 117copyright act 1968 cth 31 1 118 1992 92 dlr 4th 449 481 119 1992 93 dlr 4th 415 120 mcinerney 1992 93 dlr 4th 415 423 121 mcinerney 1992 93 dlr 4th 415 424 122 mcinerney 1992 93 dlr 4th 415 425 123 rogers 1992 hca 58 1992 175 clr 479 483 124 federal commissioner taxation v united aircraft corporation 1943 hca 50 1943 68 clr 525 534 535 125 w v egdell 1990 ch 359 389 415 419 126 mcinerney 1992 93 dlr 4th 415 424 127 special circumstance case may course create fiduciary relationship would require journalist accountant bank officer person reveal relevant information person gave information commonwealth bank v smith 1991 fca 375 1991 102 alr 453 provides example case bank officer none person owe fiduciary duty give access record merely received confidential information 128 parkinson fiduciary law access medical record breen v williams 1995 sydlawrw 26 1995 17 sydney law review 433 439 440 129 parkinson fiduciary law access medical record breen v williams 1995 sydlawrw 26 1995 17 sydney law review 433 442 443 finn fiduciary principle youdan ed equity fiduciary trust 1989 1 25 26 130 see j la v j h 1993 102 dlr 4th 177 parkinson fiduciary law access medical record breen v williams 1995 sydlawrw 26 1995 17 sydney law review 433 441 131 see finn fiduciary principle youdan ed equity fiduciary trust 1989 1 26 132 see parkinson fiduciary law access medical record breen v williams 1995 sydlawrw 26 1995 17 sydney law review 433 441 442 133 1992 hca 58 1992 175 clr 479 134 rogers 1992 hca 58 1992 175 clr 479 490 135 tucker v u department commerce 1992 usca7 412 1992 958 f 2d 1411 1413 136 silicone gel breast implant product liability litigation 1992 793 f supp 1098 significance litigation development united state class action tort discussed professor john c coffee jr class war dilemma mass tort class action 1995 95 columbia law review 1343 1404 1410 137 breen v williams 1994 35 nswlr 522 138 1994 35 nswlr 522 550 139 commentary equity jurisprudence administered england america 8th ed 1861 vol 2 par 1495 140 treatise discovery 1836 120 141 chancery pleading 5th ed 1847 221 142 mitchell v smith 1828 1 paige 287 143 1838 engr 510 1838 9 sim 180 59 er 327 144 1889 41 ch 151 145 spence equitable jurisdiction court chancery 1849 vol 2 11 146 1838 engr 510 1838 9 sim 180 191 1838 engr 510 59 er 327 331 147 1887 11 ne 540 148 1828 1 paige 287 149 1887 11 ne 540 548 detailed statutory provision made united state title 28 united state code state para 1782 assistance foreign international tribunal litigant tribunal district court district person resides found may order give testimony statement produce document thing use proceeding foreign international tribunal order may made pursuant letter rogatory issued request made foreign international tribunal upon application interested person may direct testimony statement given document thing produced person appointed court extent order prescribe otherwise testimony statement shall taken document thing produced accordance federal rule civil procedure person may compelled give testimony statement produce document thing violation legally applicable privilege 150 1974 ac 133 151 1981 ac 1096 152 1994 qb 366 374 375 153 1980 1 wlr 1274 1980 3 er 353 154 1994 35 nswlr 522 527 155 see coffee class war dilemma mass tort class action 1995 95 columbia law review 1343 1409 1410 156 1994 35 nswlr 522 541 542 cf british steel v granada television 1981 ac 1096 1168 per lord wilberforce 157 sidaway v governor bethlem royal hospital 1985 ukhl 1 1985 ac 871 904 158 1988 fca 258 1988 24 fcr 512 515 517 see also zador v minister community service health 1991 24 ald 165 r v mid glamorgan family health service 1995 1 wlr 110 113 1995 1 er 356 359 thefreedom information act 1982 cth s 38 40 41 43 45 exempts certain document disclosure statute see alsofreedom information act 1989 nsw 31 freedom information act 1982 vic s 33 35 theprivacy act 1988 cth s 89 94 creates right action breach obligation confidence respect personal information agency commonwealth officer subject section 95of statute provides issue guideline protection privacy conduct medical research 159 hawkins v clayton 1988 164 clr 539 573 byrne v australian airline ltd 1995 hca 24 1995 69 aljr 797 800 801 812 815 1995 hca 24 131 alr 422 428 443 447 160 1986 hca 14 1986 160 clr 226 236 238 161 parry jones v law society 1969 1 ch 1 6 7 9 hunter v mann 1974 qb 767 773 775 162 nullagine investment pty ltd v western australian club inc 1993 hca 45 1993 177 clr 635 647 648 659 byrne v australian airline ltd 1995 hca 24 1995 69 aljr 797 815 819 1995 hca 24 131 alr 422 447 452 see also treitel law contract 9th ed 1995 190 194 163 1992 hca 58 1992 175 clr 479 164 1992 hca 58 1992 175 clr 479 490 492 165 see generally interrelation distinction economic ethical social interest served tort contract fiduciary law cooter freedman fiduciary relationship economic character legal consequence 1991 66 new york university law review 1045 1053 1056 1064 1074 de mott fiduciary obligation intellectual siege contemporary challenge duty loyal 1992 30 osgoode hall law journal 470 482 497 given case consideration also may required statutory provision requiring particular norm conduct as 52of thetrade practice act 1974 cth andpt viii ss89 94 theprivacy act 1988 cth 166 china south sea bank ltd v tan 1990 1 ac 536 543 544 downsview nominee ltd v first city corporation ltd 1993 ac 295 316 spring v guardian assurance plc 1994 ukhl 7 1995 2 ac 296 334 167 boardman v phipps 1966 ukhl 2 1967 2 ac 46 104 105 112 117 n z netherlands society v kuys 1973 1 wlr 1126 1131 1132 1973 2 er 1222 1227 168 american authority collected mehlman fiduciary contracting limitation bargaining patient health care provider 1990 51 university pittsburgh law review 365 388 414 see also finn fiduciary principle youdan ed equity fiduciary trust 1989 1 24 26 169 1992 hca 61 1992 175 clr 621 170 1994 35 nswlr 522 561 171 1994 35 nswlr 522 538 559 561 172 1980 fsr 231 239 240 173 estate finkle 1977 395 ny 2d 343 344 345 174 gotkin v miller 1974 379 f supp 859 864 868 175copyright act 1968 cth 31 1 176 1970 hca 36 1970 121 clr 154 165 170 177 1935 ch 267 178s 35 6 179 see definition artistic work in 10 1 thecopyright act 1968 cth 180s 43 1 181 avel pty ltd v multicoin amusement pty ltd 1990 hca 58 1990 171 clr 88 103 106 119 120 lorenzo son v roland corporation 1992 fca 318 1992 23 ipr 376 380 383 devefi pty ltd v mateffy perl nagy pty ltd 1993 113 alr 225 237 242 182 gerald dworkin access medical record discovery confidentiality privacy 1979 42 modern law review 88 90 183 1943 hca 50 1943 68 clr 525 534 184 foster v mountford rigby 1976 14 alr 71 stephen v avery 1988 ch 449 x v 1988 2 er 648 185 moorgate tobacco co ltd v philip morris ltd 2 1984 hca 73 1984 156 clr 414 437 438 john v australian security commission 1993 hca 56 1993 178 clr 408 426 427 455 459 460 186 1980 hca 44 1980 147 clr 39 see also brien v komesaroff 1982 hca 33 1982 150 clr 310 187 w v egdell 1990 ch 359 389 415 419 gurry breach confidence 1984 148 149 188 1993 hca 56 1993 178 clr 408 460 463 189 1992 2 scr 138 1992 93 dlr 4th 415 190 1992 2 scr 138 159 1992 93 dlr 4th 415at 430 431 191 see report intermediate appeal mcinerney v macdonald 1990 66 dlr 4th 736 737 740 741 192 1992 2 scr 138 142 1992 93 dlr 4th 415at 418 193 1992 2 scr 138 141 1992 93 dlr 4th 415at 417 194 1992 2 scr 138 150 152 1992 93 dlr 4th 415at 424 425 195 1995 1 wlr 110 1995 1 er 356 196 1995 1 wlr 110 116 1995 1 er 356 363 197 1995 1 wlr 110 113 1995 1 er 356 359 198 1995 1 wlr 110 119 120 1995 1 er 356 366 199 feenan common law access medical record 1996 59 modern law review 101 102 200 1969 sc 72 201 1969 sc 72 82 202 cf hospital product ltd v united state surgical corporation 1984 hca 64 1984 156 clr 41 99 100 henderson v merrett syndicate ltd 1994 ukhl 5 1995 2 ac 145 206 203 hospital product ltd v united state surgical corporation 1984 hca 64 1984 156 clr 41 98 204 1936 hca 41 1936 56 clr 113 205 1936 hca 41 1936 56 clr 113 134 206 1936 hca 41 1936 56 clr 113 134 135 207 1994 3 scr 377 406 1994 117 dlr 4th 161at 173 174 208 1986 hca 25 1986 160 clr 371 377 384 385 209 support formulation mainspring fiduciary duty may found hospital product ltd v united state surgical corporation 1984 hca 64 1984 156 clr 41 72 96 97 142 mabo v queensland 2 1992 hca 23 1992 175 clr 1 200 201 glandon v stratum consolidated 1993 11 acsr 543 549 556 557 hodgkinson v simms 1994 3 scr 377 431 432 465 468 1994 117 dlr 4th 161at 193 217 219 last mentioned case disagreement la forest j one hand sopinka mclachlin jj degree reliance requisite respect fiduciary adviser former denying latter asserting need wholesale complete reliance unnecessary appeal consider consequence division opinion canada see ogilvie fiduciary obligation canada concept principle 1995 journal business law 638 643 644 210 de mott fiduciary obligation agency partnership 1991 20 22 211 birtchnell v equity trustee executor agency co ltd 1929 hca 24 1929 42 clr 384 409 per dixon j see also advice delivered lord wilberforce n z netherlands society v kuys 1973 1 wlr 1126 1129 1130 1973 2 er 1222 1225 1226 lord mustill goldcorp exchange ltd 1994 ukpc 3 1995 1 ac 74 98 212 1984 hca 36 1984 154 clr 178 198 199 213 commonwealth bank v smith 1991 fca 375 1991 42 fcr 390 391 393 1991 fca 375 102 alr 453 476 478 haira v burbery mortgage finance saving 1995 3 nzlr 396 404 407 214 see also glover commercial equity fiduciary relationship 1995 par 5 123 5 132 215 drexel burnham lambert uk pension plan 1995 1 wlr 32 216 chan v zacharia 1984 hca 36 1984 154 clr 178 199 per deane j 217 1914 ac 932 956 218 1927 vlr 134 146 148 see also mordecai v mordecai 1988 12 nswlr 58 hill v rose 1990 vicrp 13 1990 vr 129 wan v mcdonald 1992 fca 4 1992 33 fcr 491 bailey v namol 1994 fca 1401 1994 125 alr 228 hodgkinson v simms 1994 3 scr 377 1994 117 dlr 4th 161 target holding ltd v redferns 1995 1 ac 421 219 1990 793 p 2d 479 220 1990 793 p 2d 479 484 221 1994 3 scr 377 406 1994 117 dlr 4th 161at 174 222 1994 35 nswlr 522 570 per meagher ja 223 target holding ltd v redferns 1996 1 ac 421 434 224 australian security commission v nominee ltd 1995 fca 1663 1995 133 alr 1 12 13 authority area discussed contrasting position company director noted 225 1992 2 scr 138 152 1992 93 dlr 4th 415at 425 426 |
Aronson, Mark --- "Private Bodies, Public Power and Soft Law in the High Court" [2009] UNSWLRS 46.txt | aronson mark private body public power soft law high court 2009 unswlrs 46private body public power soft law high court 2009 unswlrs 46 22 november 2009 last updated 4 december 2009 paper shortly available download citationthis article published 2007 fedlawrw 1 2007 35 federal law review 1 abstractthis article argue pessimism sustainability core achievement judicial review last 30 year missed mark specifically clear present danger australia expansionist case regarding standing sue expansion natural justice beyond realm strict legal right pessimism score misplaced secondly however article argue recent case make difficult seeking purchase internal guideline rule book practice manual public private authority soft law abound public private sphere rule neither statutory contractual force australia version rule fettering statutory discretion led court decline enforce soft law whether overtly via natural justice principle speaking broadly critical issue australia concern judicial review adaptability changing form public power article would advocate following english development court nevertheless recognise public power increasingly exercised place within private sector non government body according rule found management manual rather statute book judicial review restraint public power need confront shift exercise public power rule exercise |
Liberty [2014] QBCCMCmr 343 (23 September 2014).txt | liberty 2014 qbccmcmr 343 23 september 2014 last updated 13 october 2014adjudicator orderoffice commissionerfor body corporate community managementcitation liberty 2014 qbccmcmr 343parties georgene brown applicant body corporate respondent owner affected person scheme liberty ct 27241jurisdiction section 227 1 b and229 3 thebody corporate community management act 1997 qld act applying act thebody corporate community management standard module regulation 2008 standard module application 0073 2014decision date 23 september 2014decision c partridge adjudicatorcatchwords general meeting whether failed motion declared passed law whether part keeping animal law invalid whether body corporate required record new law keeping animal act s94 169 180 ordersmade hereby orderthat outcome seeking declare passed motion 14 annual general meeting liberty ct 27241 held 22 november 2013is dismissed hereby declarethat law 14 1 14 1 14 1 e 14 1 h 14 1 l time invalid orderthat body corporate liberty ct 27241 must within four 4 month date order either following lodge request record new community management statement replace law 14 following 14 keeping animals14 1 owner occupier lot must without body corporate written approval bring keep animal lot common property 14 2 body corporate may impose condition approval animal body corporate may regard following condition weight animal b animal disturb resident guest pet time b animal domesticated animal c animal toilet trained animal carried appropriately restrained whilst common property e animal kept within lot except traversing common property f animal wear identification tag showing owner address current telephone number g animal kept clean quiet controlled time whilst lot traversing across common property h animal enter swimming pool newport club common property time body corporate may require provision certificate vetcall veterinarian service nominated committee time time confirming detail animal weight ii animal healthy free major disease iii animal required inoculation flea protection j animal attached rope leash item either common property vehicle basement area k animal left unattended near common property including within vehicle time l approval current animal additional replacement animal 14 3 owner occupier require approval body corporate keep fish within lot b lodge request record new community management statement amend law 14 alternative wording passed special resolution general meeting body corporate alternative wording must repeat invalid provision identified order reason decisionoverview 1 georgene brown owner lot 2114 applicant submitted motion motion 14 annual general meeting held 22 november 2013 2013 agm amend law 14 motion failed 21 yes vote 60 vote 8 abstention 2 law 14 titled pet animal currently give owner occupier ability keep one small domestic cat dog excluding fish subject 14 condition applicant motion sought amend introductory paragraph law four condition add additional condition motion failed applicant lodged application seeking declare passed motion 14 2013 agm preliminariesjurisdiction 3 satisfied dispute fall within dispute resolution provision legislation dispute owner body corporate decision pas motion general meeting body corporate 1 4 adjudicator may make order equitable circumstance resolve dispute community title scheme claimed anticipated contravention act cm exercise right power performance duty act cm 2 adjudicator may determine decision pas motion general meeting unreasonable give effect motion proposed 3 adjudicator order may contain consequential ancillary provision adjudicator considers necessary appropriate 4 procedural matter 5 29 january 2014 applicant lodged application commissioner invited submission application committee owner 5 committee made detailed submission mostly opposing application opposing submission received 22 lot owner one submission supported application applicant inspected submission made reply submission 6 6 dispute resolution recommendation 7 made referring application department adjudication investigated dispute analysismotion 14 2013 agm 7 law 14 recorded community management statement cm liberty state 14 pet animals14 1 owner occupier lot may keep maximum 1 small domestic cat dog excluding fish lot subject following animal weighs le 10kg b disturb resident guest pet time c domesticated pet toilet trained e animal carried whilst common property f cat kept within lot time g animal wear identification tag time clearly showing owner address current telephone number h pet kept clean quiet controlled time whilst lot carried across common property pet enter swimming pool newport club common property time j lot owner occupier must obtain provide body corporate certificate vetcall veterinarian service nominated committee time time confirming animal weight ii animal healthy free major disease iii animal required inoculation flea protection k pet attached rope leash item either common property vehicle basement area l pet kept visit lot whilst approval one pet provided body corporate pet left unattended near common property including within vehicle time n approval current pet additional replacement pet 8 application sought declare passed motion 14 2013 agm motion 14 sought amend following part law 14 restriction one cat one dog 14 1and14 1 l imposition weight limit 14 1 requirement carry animal whilst common property 14 1 e h 9 motion 14 also sought add additional requirement law 14 2 dealt cleaning removing mess common property made animal control owner occupier 10 act provides body corporate must act reasonably 8 reasonableness question fact applicable test objective one requiring balancing factor circumstance according ordinary meaning term reasonable 9 question whether decision correct one whether objectively reasonable 10 11 considering decision objectively reasonable required regard motion 14 information presented owner notice 2013 agm explanatory material well reason submitted owner committee 12 onus applicant provide ground satisfy body corporate acted unreasonably deciding pas motion 14 perusing material presented satisfied applicant presented ground regard decision unreasonable rather applicant merely detailed law 14 unreasonable discriminatory oppressive 13 opposing submission received response application detail owner prefer keep law 14 rather applicant proposed law argument include law clear suit schemethe law adequate best interest owner occupiersthe law stay benefit pet owner non pet ownersthe large number vote motion indicate owner preference change current animal law decision standthe current animal law 14 year issue nowthe applicant motion abnormality 14 reasonable owner prefer one law another therefore vote motion merely present owner opinion preference importantly detailed earlier determination whether body corporate acted reasonably objective test determine correct decision 15 therefore find given insufficient ground conclude decision pas motion 14 objectively unreasonable result ordering motion 14 declared passed validity law 14 16 record held land title registry confirm law 14 recorded current cm liberty effect since 21 january 2008 owner committee believe place 14 year however prior 21 january 2008 wording law 14 different 17 reviewed application submission noted various comment made validity law 14 given comment wrote committee owner setting provisional view validity law 14 seeking submission appropriateness making order regarding validity law 14 andon validity law 14 regarding provisional view 18 received 24 submission owner detailed response committee provided response applicant inviting comment also invited applicant comment two point applicant responded giving comment 19 submission committee concede current wording law 14 generally unclear consent order adjudicator regarding invalidation otherwise part law 14 committee made specific comment provisional view deal 20 applicant responded saying agrees law replaced one better reflects law applicant provides opinion law could change giving new suggestion alternate law however point suggestion given applicant response inappropriate relies law within new south wale includes terminology applicable new south wale stratum law respect satisfied new suggestion would resolve dispute benefit owner committee applicable law 1 order law valid must regulate section 169of act andnot oppressive unreasonable section 180 7 act 2 matter ofbody corporate river city apartment v mcgarvey 11 river city apartment found law prohibited keeping pet lot invalid law merely regulating use enjoyment lot rather found law purported prohibit rather regulate particular use enjoyment lot therefore beyond regulation power provided insection 169of act 3 matter ofmckenzie v body corporate king row centre 12 mckenzie tribunal considered law specifically prohibited keeping cat dog tribunal found law providing absolute ban keeping dog cat unreasonable circumstance dog cat could kept community title scheme without causing inconvenience resident matter law amended committee acting reasonably would able decide whether approve keeping particular animal whether animal law oppressive unreasonable considered number recent appeal decision 13 therefore considering whether law oppressive unreasonable undersection 180 7 act necessary consider law context circumstance scheme 21 address element law provided provisional view respect validity 1 one cat one dog 14 1 14 1 l 22 law 14 1 14 1 l limit owner occupier maximum one catorone dog lot submission received provisional view clear intention law exclude fish requiring permission therefore law would also allow fish kept lot 23 respect limiting right person keeping one dog one cat excluding animal except fish principle given mckenzie would apply law 14 1 14 1 l law allowingonlyone dogorone cat whether without permission prohibiting animal bird kept lot opinion contravenessections 169and180 7 act 24 therefore declared law 14 1 14 1 l time invalid 2 weight limit 14 1 25 current law imposes weight limit 10kgs animal applicant argues size limit animal irrelevant behaviour giving example large complacent labrador conducive apartment living small yappy energetic terrier applicant note law currently prohibits dog cat weighing 10kgs kept lot give discretion committee consider otherwise 26 committee wish law altered remove size limit animal belief law contravenesections 169or180of act however given evidence animal larger 10kgs would cause nuisance animal weighing le 10kgs believe quite possible breed dog exceeding 10kgs kept within lot without causing nuisance annoyance lot owner smaller dog breed high activity level propensity barking whereas larger dog breed rarely bark 27 submission received merely provide hypothetical concern large dog intimidating confronting elderly young owner responded investigation letter agreed smaller dog cause noise larger one 28 committee responded letter confirming retains argument weight limit necessary remain committee say consideration relevant dog respect provisional view quoted212 margaret 14 committee argues removal regulation would inconsistent decision say discretion applied allow committee consider animal size weight agree however current wording permit discretion applied 29 therefore extent law 14 1 restricts weight limit animal 10kgs without ability committee apply discretion made declaration law 14 1 contravenessection 180 7 act 3 carrying animal 14 1 e h 30 law 14 say dog cat must carried common property definition law carried intended mean 31 based submission received also clear committee owner believe carried mean holding animal arm pushing trolley committee say dog cat allowed walk across common property would allow animal urinate soil damage common property opposing submission received lot owner mostly support condition 32 applicant argues requiring animal carried discriminates disabled incapacitated elderly young belief carrying animal may also cause exacerbate injury owner occupier animal 33 committee argues owner occupier cannot carry animal would permit use trolley instead however see discretion law would allow animal placed trolley rather carried 34 investigated issue giving preliminary view law 14 1 e h committee rely argument considers owner occupier ability use trolley law recognise use considers trolley appropriate alternative carrying animal suggests word carried could defined law remove misunderstanding understand committee owner concern large landscaped common property may impacted change however hypothetical concern present evidence given would suggest trolley pushed along common property foyer carpet would cause le damage animal walking across common property 35 additionally argument given animal able leash could result muddy footprint rain hypothetical concern see would also case people walking trolley pushed 36 main concern raised respect condition animal carried arm person trolley could soil damage common property occur committee could issue contravention notice owner occupier contravened law 14 37 respect condition animal must carried without discretion declare condition oppressive unreasonable contraveningsection 180 7 act new law 14 38 applicant committee majority owner responded investigation letter concede change law 14 decided order adjudicator accordingly ordered body corporate amend law 14 term proposed order unless body corporate general meeting special resolution pass different law 14 alternate law 14 passed general meeting must repeat invalid provision identified order 39 address change made basis declaration given regarding validity 14 1 14 1 14 1 e 14 1 h 14 1 l taking consideration comment applicant committee owner addition made change remove confusion surrounding wording law condition one cat one dog 40 evident submission owner differing view law mean applicant belief current law applies cat dog consequence currently mean type animal bought lot without authorisation submission committee owner believe fish allowed without permission wording necessarily represent interpretation however committee belief could apply discretion current law allow second cat considered fair reasonable committee also say law treat bird cat 41 currently worded believe law 14 requires consent body corporate keep one cat one dog opinion law give automatic right one cat one dog excludes animal bought scheme committee say believe automatic right proposed applicant agree however opinion law state 42 also consider reference pet animal used interchangeably unnecessary confusion difference meaning within context law committee agrees 43 committee request order would clear confusion retain ability give permission animal however want retain limitation type animal give permission cat dog bird wish discretion allow one different kind request fish excluded requiring permission owner also agree fish require permission 44 would better suited scheme law would allow committee consider animal individually agree body corporate acting reasonably would require owner occupier gain permission fish consideration animal case case basis would necessary including bird 45 regard amended law 14 1 make clear owner occupier cannot bring animal onto scheme land without prior permission body corporate would enable committee consider request case case basis also inserted clause 14 2 give body corporate committee ability impose condition imposed 14 2 l 46 also inserted clause 14 3 make clear owner occupier require permission keep fish lot weight limit 47 taken consideration comment given party respect weight limit animal agree committee discretion allowed allowed current law therefore indicated inserted clause 14 2 give committee discretion consider condition listed 14 1 l apply relevant necessary condition approval given includes ability consider animal weight carrying animal 48 consider reasonable impose condition ensures animal restrained common property interest owner occupier see limited carried accordingly proposed amendment relating carrying animal allow discretion applied change word carried otherwise restrained allow owner occupier continue use trolley carry animal arm transport pet carrier addition allowing animal restrained leash ensuring controlled person end option course way animal carried appropriately restrained committee apply discretion condition case case basis proposed amendment 49 also slightly altered wording change condition automatic allowing committee consider whether wish impose every condition specific approval saying committee must act reasonably 15 making decision conclusion 50 reason given conclude decision pas motion 14 2013 objectively reasonable dismissed outcome sought accordingly 51 however made declaration certain part law 14 time invalid 52 result extensive investigation ordered body corporate lodge request record new community management statement amend current law 14 law proposed order given reason change alternatively body corporate may way special resolution general meeting resolve record different law 14 ensuring alternative repeat invalid provision 53 however body corporate record proposed law alternate law 14 prevent body corporate amending law 14 future although body corporate would caution repetition invalid provision dealt order 54 noted owner occupier comply condition imposed approval keep animal committee may issue law contravention notice breach law 14 requesting owner occupier remedy contravention example animal soil damage common property another owner occupier identify alleged contravention issuing bccm form 1 committee committee may acting reasonably decide issue law contravention notice 1 seesections 227 228 276andschedule 5of act 2 section 276of act 3 schedule 5 item 20of act 4 seesection 284of act 5 section 243of act 6 seesections 246and244of act respectively 7 seesections 248of act 8 seesection 94of act 9 secretary department foreign affair trade v style 1989 fca 342 1989 88 alr 621 see also mckinnon v treasury 2006 hca 45per hayne j paragraph 61 10 commonwealth bank australia v human right equal opportunity commission 1997 fca 1311 1997 150 alr 1at page 34 38 11 body corporate river city apartment ct 31622 v mcgarvey 2012 qcata 47 12 mckenzie v body corporate king row centre ct 11632 2010 qcata 57 13 tutton v body corporate pivotal point residential ct 33550 2008 qcctbccm 12 mckenzie v body corporate king row centre ct 11632 2010 qcata 57 body corporate river city apartment ct 31622 v mcgarvey 2012 qcata 47 14 see212 margaret 2013 qbccmcmr 400 15 seesections 94and100of act |
Melton L18 (PSA) [1993] PPV 137 (18 November 1993).txt | melbourne airport environs area amendment independent planning panel report november 1993 melbourne airport environs area amendment independent planning panel report 1 appointment notice dated 2nd september 1992 messrs peter brown michael van assche richard walter chairman appointed panel hear submission amendment bulla l60 broadmeadows l31 keilor l45 melton l18 planning scheme provision section 153 155 157 planning environment act 1987 2 hearing panel adjourned without sitting request minister planning 19th november 1992 reconvened direction hearing held 15th july 1993 eight day hearing held 2nd 6th august 9th 10th 27th august 1993 3 site inspection panel made independent inspection land owned federal airport corporation melbourne airport part surrounding municipality affected amendment thursday 26th august 1993 4 interim report exhibit response request minister planning panel submitted earlier interim report conclusion hearing dealt part land amendment l45 keilor planning scheme involving land owned pathstone pty ltd throughout report figure appearing bracket text refer written submission report map exhibit lodged panel course hearing numbered chronologically document held department planning development listed appendix report original written submission response exhibition amendment listed department planning development submission 1 5 amendment four amendment placed exhibition period two month 27th may 1992 previous minister planning housing amendment seek create two new overlay control designed recognise effect noise melbourne international airport land close flight path reserve 424 hectare land adjacent south west side airport proposed public purpose reservation commonwealth provide extension airport rezone 51 hectare land south side calder highway generally within 25 anef contour reserved living calder park garden industrial zone rezone 44 hectare land north sydenham generally within 25 anef contour reserved living zone general farming zone melbourne airport environs area 1 maea 1 overlay area includes area close within runway alignment approach considered need control ensure continued effective operation melbourne international airport area predominantly within non urban zone overlay area designed control us may limit airport operation residential development conventional urban density hospital hotel area maea 1 generally incorporates area long term noise exposure exceeding 25 anef melbourne airport environs area 2 maea 2 overlay area includes wider area considered affected aircraft noise future airport development area land may used accordance provision zoning new building dwelling particular may need subject appropriate sound attenuation measure maea 2 generally incorporates area long term noise exposure 20 25 anef adjustment allow safety margin defined regard property boundary road natural feature existing zoning 2 calder park garden industrial zone general farming b zone amendment rezone land city keilor calder park garden industrial zone land shire melton general farming b zone area within maea 1 overlay control area within residential development recommended prohibited anef system proposed zoning identified melbourne airport land use committee appropriate alternative zone existing reserved living zone view surrounding zoning land use summary amendment municipality broadmeadows l31 existing zoning retained overlay control maea 1 maea 2 applied area affected eastern approach melbourne international airport bulla l60 keilor l45 existing zoning retained overlay control maea 1 maea 2 applied area affected northern eastern western approach melbourne international airport existing reserved living zoned land affected western approach melbourne international airport area subject greater 25 anef rezoned calder park garden industrial zone overlay control maea 1 maea 2 applied area affected western southern approach airport land south west melbourne international airport reserved proposed public purpose reservation commonwealth government enable future airport expansion fac accepted responsibility land acquisition already purchased approximately 50 land involved area south essendon airport included keilor l45 part essendon planning scheme municipal boundary change l45 exhibited 3 melton l18 existing reserved living zoned land north sydenham subject greater 25 anef rezoned general farming b zone overlay maea 1 maea 2 control applied area affected western approach airport concurrent amendment time four amendment went exhibition minister planning housing approved four concurrent amendment gave immediate effect part control considered amendment provide interim holding measure maea 1 overlay area land rezoned concurrent amendment l30 broadmeadows l59 bulla l44 keilor l17 melton introduced overlay control contained maea 1 calder park garden industrial zone sydenham keilor planning scheme general farming b zone sydenham melton planning scheme proposed public purpose reservation commonwealth government north keilor keilor planning scheme concurrent amendment contain sunset clause control initially expired 30 may 1993 extended 31 december 1993 allow panel conduct investigation amendment finalised 4 6 planning authority submission behalf minister planning presented m marianne richards 6 addition outlining scope amendment set submission describes background amendment summarizes issue raised submittors following exhibition amendment submission set clearly importance melbourne international airport primary trade tourist gateway melbourne victoria integral role state economy direct employer 10 000 people source earnings 1 million per annum representing 2 victoria gross domestic product rapid growth international domestic passenger freight traffic airport need ensure future development airport long term would inhibited gradual intrusion competing activity need present amendment arose realisation early 1980 original masterplan tullamarine airport would acceptable environmental ground provided limited development opportunity adjoining area consequently joint airport planning team established develop comprehensive strategy melbourne international airport following preparation draft environmental impact statement new melbourne airport strategy adopted decemb8r 1990 commonwealth state government victorian minister planning housing established melbourne airport land use study committee make particular recommendation concerning aspect strategy submission set committee term reference membership existing policy context within recommendation would based copy committee report recommendation supplied panel together copy following document existing policy land adjoining airport included state section planning scheme australian noise exposure forecast anef system land use compatibility set saa 2021 5 melbourne airport strategy final environmental impact statement subsequent recommendation department art sport environment tourism territory australian mayoral aviation council policy residential construction noise exposed area determining area subject restrictive planning control committee adopted principle contained anef system recommendation house representative select committee aircraft noise horscan together commonwealth government response dated september 1990 committee used aircraft noise anef system notional guide defining boundary proposed zoning control considered future planning control based worst case scenario runway matter occurred report recommendation melbourne airport land use study committee form principal basis upon amendment consideration prepared germane issue panel report set full recommendation committee follows australian noise exposure forecast system 1 saa 2021 adopted state local government commonwealth basis land use planning around melbourne airport 2 land use planning around melbourne airport provide margin error beyond calculated 20 anef contour defining least noise affected land house representative select committee aircraft noise 3 land use planning around melbourne airport aim ensure curfew required imposed 4 pilot training melbourne airport limited cannot reasonably undertaken airport whose environs le noise sensitive 5 policy introduced purchase house payment compensation noise impact purpose achieving compliance compatibility table saa 2021 6 6 planning scheme include appropriate planning control partly purpose alerting prospective purchaser degree aircraft noise impact land 7 tlle commonweal th department transport communication take immediate action fj nalise report method soundproofing sidences administering compensation scheme area subject airport related control 8 two principal form planning control area broadly based included within 25 anef contour detailed planning control set melbourne airport environs area 1 land area close within runway alignment approach use development need controlled ensure continued effective operation melbourne airport land predominantly within non urban zone green wedge development us may limit airport operation permitted e g residential development conventional urban density hospital hotel etc b area broadly based 20 anef 25 anee contour interval detailed planning control set melbourne airport environs area 2 wider area acknowledged affected aircraft noise new development may occur new building especially dwelling include sound proofing measure 9 tllat minister planning housing place exhibition necessary amendment broadmeadows bulla keilor melton planning scheme introduce overlay control entitled melbourne airport environs area 1 melbourne airport environs area 2 specified area reserved living land city keilor shire melton rezoned industrial general farming respectively b make federal airport corporation melbourne airport referral authority respect area specified recommendation 8 7 10 minister planning housing introduce interim control immediately put amendment place exception melbourne airport environs area 2 11 note taken committee recommendation respect particular area land discussed section 6 report summarizing ground objection amendment submission concluded proposed amendment designed ensure ongoing viability melbourne airport owner resident existing future urban area aware impact aircraft noise development would designed minimise adverse effect lifestyle put without proposed control pressure would build limitation airport operation would effect ability melbourne airport act major economic commercial activity centre victoria course hearing mr john lawson executive consultant infrastructure development unit department planning development appeared panel monday 9th august 1993 make submission behalf minister planning submission mr lawson indicated government conducting review metropolitan development strategy particularly concerned efficiently utilize existing physical infrastructure including public private transport facility hydraulic service submission stated state government actively involved federal airport corporation fac local municipality implementing land use aspect horscan recommendation federal government engaged little complementary research towards development national policy regarding area affected aircraft noise amelioration measure compensation scheme notification procedure 8 noted aircraft noise amelioration study stopped short making particular recommendation commonwealth could take serious way letter dated 11th may 1993 minister transport communication advised study may lead assessment desirability national policy noise amelioration measure existing building noise management plan sydney airport finalised 1994 study taken account developing measure might applicable area sydney affected aircraft noise mr lawson stated state consider appropriate commonwealth defer development national strategy aircraft noise policy outcome study related sydney airport completed submission called panel consider provision measure offsetting compensation property affected airport operation measure could include revolving fund interest free loan help people upgrade noise insulation tax deductability cap owner insulating home noise submission concluded requesting panel 1 consider give advice area surrounding airport likely affected operation airport excessive noise 2 consider recommending civil aviation authority finalise consideration noise exposure forecast prior finalization commonwealth deliberation government decision relation amendment 3 consider recommending commonwealth address question appropriate amelioration measure compensation measure may useful 4 consider recommend planning control apply area would clearly affected aircraft noise accordance civil aviation authority finalised approved noise exposure forecast apply operation melbourne airport 9 7 federal airport corporation fac represented mr julia bruce instructed phillips fox federal airport corporation act 1986 fac charged ownership operation melbourne airport charged providing commonwealth state government local government body others consultancy management service relating development operation airport including reviewing use capacity existing federal airport determining whether extended altered submission noted fac planning authority prepare amendment technical data supplied ministry melbourne airport land use study committee following preparation strategy future development airport submitted reason principle fac referral authority land melbourne airport environs area even though direc tly subj ect state planning law airport territory reviewing planning context amendment submission showed original master plan future development tullamarine airport compromised encroachment urban development necessitating preparation revised strategy reviewing victoria adopted planning policy relation airport submission examined impact noise detail standard association australia document entitled acoustic aircraft noise intrusion building siting construction 198 5 known 2021 describes australian noise exposure forecast anef system anef system particularly table 2 1 2021 adopted victorian commonweal th governmen t basis land use planning around airport submission outlined process arriving new strategy melbourne airport particular development preferred runway strategy option sc3 noted planning period adopted strategy accommodate growth year 2040 current estimate indicating third runway provisionally timed operational 2005 fourth 2023 10 following endorsement revised runway strategy victorian cabinet melbourne airport land use study committee established department planning housing convert strategy planning scheme amendmemts point mr brucel called mr leigh charles kenna manager environment monitoring civil aviation authority spoke paper entitled aircraft noise australia 16 mr kemna tabled information panel copy thel following document australian noise exposure forecast system associated land use compatibility advice area vicinity airport caa 4th edition july 1988 17 aircraft operation australian community report house representative select committee aircraft noise september 1985 18 melbourne international airport 1990 strategy australian noise ell posure forecast draft drawing fmd 5485 dated 29 7 93 19 mr kenna stated calculating noise exposure level around airport anef system take account following factor 1 sound level frequency spectrum duration noise produced aircraft type phase takeoff landing procedure 2 location flight path associated runway 3 forecast number movement aircraft type flight path operating weight aircraft 4 time day night aircraft movement take place result anef calculation set contour joining point equal aircraft noise exposure around airport describing australian standard 2021 mr kenna noted new edition standard published shortly main change 1985 edition addition aircraft noise level table aircraft type come service since 1985 change substance standard 11 mr kenna explained panel three different type noise contour map produced using anef system 1 anef australian noise exposure forecast contour map showin9 forecast aircraft noise level exist future case melbourne airport strategy represents ultimate capacity forecast incorporating several set forecast relating progressive stage development airport within definite time horizon anef requires review regular interval five year ensure continuing validity one th8 three type map intended status land use planning decision one anef map current anyone time recently endorsed map supersedes earlier map 2 anei australian noise exposure index contour map based historical data previous year actual number type aircraft use airport known show average daily aircraft noise exposure around airport year anei map used bench mark indicator chanue aircraft noise exposure 3 anec australian noise exposure concept noise contour map may produced consideration option airport development based hyp01 hetical set condition runway aircraft 1 ypes etc may several anec map prepared future year hypothetical basis may subj ect 1 0 review relevant authority anec map official status cannot used land use planning purpose however anec map necessary precursor anef map 12 reference accuracy anef mr kenna said give forecast aircraft number type performance best estimate basis subject effect change economics technology thus likely reality forecast year vary somewhat anef year produced present anef updated five year interval comparison made measured noise level calculated anei level given location shown calculated anei within 3 db measured value use calculated noise exposure determine compatible land us around airport made possible large scale study community response noise level near five australian airport conducted 1982 national acoustical laboratory nal australian department health dose response curve derived social survey data showed anef noise level percentage community moderately seriously affected aircraft noise estimated 20 anef level 44 population moderately affected 10 seriously affected 25 anef level 55 population moderately affected 20 seriously affected dose response data used develop set land use compatibility recommendation australian condition set 2021 1985 within table 2 1 standard site 20 anef acceptable building type 20 25 anef site become conditional noise sensitive building type residential school hospital 25 anef land rated unacceptable building type 35 anef site rated unacceptable building type industrial building site rated conditional residential use standard advises land use authority appropriate incorporate noise control feature construction residence table land use compatibility recommendation also reproduced anef contour chart provided panel land use compatibility advice recommended horscan committee 1985 report recommendation subsequently accepted commonwealth government 1990 response report 13 mr kenna noted since 1960 technological development reduced noise level produced jet engine given power output take noise level modern aircraft maybe much 20 dba level comparable earlier aircraft landing noise level also reduced extent australian government legislated phase operation jet aircraft meet stringent international noise standard aircraft meet chapter 3 standard must removed service year 2002 latest however advised remaining jet airciaft australia meet chapter 3 standard use modern lower noise aircraft fully accounted noise contour set produced caa melbourne airport international civil aviation organization expects decline noise exposure around airport due phase older aircraft overall noise exposure start gradually increase number aircraft operation increase mr kenna concluded submission stating anef system keystone australian government policy dealing aircraft noise land use compatibility criterion two purpose protect potential occupant excessive noise exposure reduce possibility future restriction use valuable community asset airport resuming fac general submission mr bruce indicated margin error forecasting airport operation period 2040 lead melbourne airport land use planning committee adopt conservative measure modelling noise contour used preparing draft amendment fac agreed convenient way deal inaccuracy factor adopt 2 5 dba tolerance location contour equivalent half contour interval fac adopted view prudent allow error 2 5 dba increase noise impact suffered property rather assume impact would 2 5 dba le may ministry requested fac produce new set plan showing contour allowance 2 5 dba plan numbered fmd 5490 2 3 mae area submitted panel 23 24 14 submission stated preparing map two mae area contour used contour including 2 5 dba tolerance contour fac input decision proper planning boundary designation two area matter ministry fac understood planner committee concerned avoid adoption noise contour line planning boundary area therefore broadly based contour mr bruce stressed draft anef contour submitted panel yet approved caa however last day hearing approved anef melbourne airport submitted panel subject qualification effect operation essendon airport yet included chart map showing approved anef labelled drawing fmd 5485 signed mr l kenna 23rd august 1993 remainder fac submission devoted examining nature amendment addressing particular matter response written submission lodged individual council following exhibition period amendment within melbourne airport environs area 1 broadly based area within 25 anef contour application use development subject control operate addition necessary override provision zone relevant land lie submission referred particular two aspect proposed use table mae 1 zone relating detached house granny flat given two purpose overlay area limit number dwelling number person residing area submitted requirement permit obtained detached house consequently essential part regulation land vicinity airport noted basic right construct particular building land commence new use land ownership right may exercised subject planning environment act 1987 15 question whether granny flat movable dwelling unit would also prohibited control also examined planning scheme definition metropolitan region movable dwelling unit treated dwelling prohibited permit required proposed mae control fac recognise may difficult persuade department housing insulate one movable unit stated would acceptable fac exempt insulation requirement time long unit placed lot existing house subdivision permitted separate house lot case existing house owner wish build permanent self contained unit purpose housing elderly relative definition would classify unit dual occupancy included table prohibited us submitted second unit would contrary purpose area subject condition requiring added form part house existing lot approval date interim control 27 5 92 could subdivided met insulation requirement unit would defined dwelling dual occupancy two lot dual occupancy definition may subdivided strict condition nature would prevent second dwelling becoming commercially saleable product another family unit residential density would increased family circumstance people already residing area would catered thought dual occupancy otherwise retained prohibited class capacity increase population density lead subdivision melbourne airport environs area 2 generally lie 20 25 anef contour area subject degree control reflecting perception noise attenuation work generally effective protect people purpose area limited ensuring land use development within area compatible operation airport assist shielding resident noise aircraft using airport imposing sound proofing condition new dwelling compared area 1 purpose limiting number person residing area 16 submission noted new building work clause state new dwelling must constructed material minimize transmission airport noise structure must noise attenuation measure incorporated satisfaction responsible authority regard requirement fac since fac standard 2021 submission suggested may appropriate amendment include requirement noise attenuation measure accordance recommendation 2021 incorporated construction building satisfaction responsible authority making suggestion fac acted understanding standard association standard relating use development incorporated reference planning scheme section 32 interpretation legislation act 1984 section 6 2 j planning environment act authorizes 2021 incorporated amended time time would necessary specify amendment procedure rule laid interpretation legislation act would followed submission concluded examining number issue raised municipal council discussed detail following section report response question raised course hearing fac called two witness wednesday 4th august explain process used produce draft anef plan scale 1 50 000 requested direction hearing mr peter reynolds survey draftsman fac 54 outlined process used transferring hard copy computer printout draft anef supplied caa fac tracing image subsequent scanning produce cadd file copy file passed gi coordinator department planning development mr reynolds indicated due manual operation necessary working hardcopy original maximum total variation magnitude 6 300 ground scale 1 50 000 stated accurate fit would obtained map generated direct data set supplied caa mr greg wapling gi coordinator geographical information system department planning development indicated response question digitized data properly matched department digitized mapping base would produce good fit capable plotted within 100 mm 4 ground 17 8 responsible authority 8 1 city broadmeadows written submission city broadmeadows indicated fully supported concept overlay control melbourne airport stated two concern needed addressed firstly fac given referral authority status instead performance standard inserted amendment complied would remove need referral secondly consideration given including movable dwelling unit definition detached house subject new acoustic control 8 2 city essendon amendment l39 city essendon planning scheme introduced embrace part land city keilor amendment l45 annexed city essendon march 1992 amendment proposed boundary maea 2 included fully developed residential area commercially zoned land fronting keilor road submission stated amendment totally inappropriate stated purpose controlling noise emission melbourne airport since significant impact noise melbourne airport resident essendon submission criticized number aspect amendment including inappropriate location control boundary amendment open broad interpretation building work would require town planning permit referral fac fac referral authority individual property owner notified change writing anef still certain area surrounding essendon airport submission response final day hearing city essendon noted caa fac sure noise effect essendon area yet overlay control would affect broad area may well suffer significant noise exposure suffer noise melbourne airport 18 since department planning indicated noise control essendon airport place mid 1994 regarded appropriate area north essendon excluded amendment l45 l39 accurate anef established area panel advised department planning development amendment l39 city essendon planning scheme abandoned due fact present caa able accurately define noise contour east milleana road aircraft noise essendon airport operation interact melbourne international airport department indicated noise control relating essendon airport place mid 1994 8 3 city keilor mr peter mccubbin strategic planner city keilor 29 stated keilor recognizes employment advantage economic opportunity provided melbourne essendon airport view integrated operation complete range aviation service provided major economic resource employment generating activity north western sector melbourne council resolution dated 21st july 1992 city reaffirmed support melbourne airport strategy subject satisfied melbourne airport continue operate unencumbered accordance strategy present future resident keilor subject severe aircraft airport generated noise impact result inappropriately located residential development existing landowner within noise affected area disadvantaged economically changed land use policy agreeing principle amendment council called incorporation appropriate guideline airport noise insulation new residential building provide periodic review noise exposure forecast noted city keilor drafted policy statement airport noise adopted australian mayoral aviation council national policy supported use anef system employing worst case concept fully developed airport used ultimate capacity policy also called establishment legislative process facilitate fair equitable compensation property owner facing effect development called installation noise monitoring system demonstrate actual airport operation remain consistent endorsed airport operating plan 19 submission critical notification procedure lack consultation public relation amendment given potential effect amendment provision submitted owner affected land notified writing prior preparation amendment opinion local government key affected landowner sought mr mccubbin addressed number specific matter dealt addressed later report extension calder park garden industrial zone pathstone pty ltd matter addressed panel interim report extent proposed public purpose commonwealth government reservation proposed extension airport land proposed reservation supported council however submitted extension reservation land seriously affected aircraft noise may warranted particular land mcnabs road owned mr mr j neven mcnabs road arundel road area vila boa fox ioannidis family council saw merit referral application federal airport corporation requested referral requirement completely deleted amendment submission criticized boundary overlay control area ground boundary incorporate land significantly affected aircraft noise called revision boundary closely comply relevant anef contour noted quite large area existing development kealba keilor down taylor lake avandale height within maea 2 area appears subject future noise level 20 anef small part sydenham township appears subject future noise level marginally 20 anef included maea area 20 revision maea 1 control called basis dual occupancy prohibited use given overlay area cover large area general farming conservation land thought dual occupancy would add significant number resident area prohibition use could significant hardship similarly light industry use requiring permit referral fac maea 1 cover significant area industrial land present light industry established without permit keilor thought unlikely establishment light industry area would adversely affect airport aircraft operation us likely impact operation safety subject existing requirement keilor planning scheme submission stated requirement noise amelioration measure related location building respect relevant anef contour rather requirement whole mae 1 area amendment criticized requiring noise attenuation measure without specifying consist standard achieved thought inequitable cost loss associated amelioration future airport related noise borne private property owner within city keilor benefit larger efficient melbourne airport shared whole community imposition ticket tax passenger levy user airport suggested equitable alternative way raising fund necessary compensate noise affected owner submission concluded calling regular review every five year amendment including zone overlay control boundary take account possible reduction noise level due future aircraft development submission 132 final day hearing city keilor noted although enjoyed good relationship fac hearing provided evidence relationship airport surrounding community could improved bulk second submission devoted outlining basis agreement city keilor fac department planning affected party relation calder park garden industrial zone pathstone mcnabs road arundel road area fox ioannidis family 21 8 4 shire bulla mr david turnbull director planning development mr peter van til acting managing planning shire bulla spoke support written submission 36 submission outlined background amendment including council resolution relation melbourne airport land use study amendment l60 demonstrated state regional local section bulla planning scheme shire developed effective mean controlling land use around melbourne airport place since 1988 reference made general plan municipality recognised melbourne airport significant economic asset municipality importance ensuring development occur rural area might prejudice long term operation council supported introduction additional regional planning policy assist achieving objective recognise importance placed operation airport discussing detail amendment submission made following point 1 following introduction interim amendment l59 absence information constituted appropriate noise attenuation measure 25th january 1993 bulla council adopted noise policy entitled planning policy domestic construction located area affected aircraft noise noted would preferable suitable set guideline adopted utilized municipality consistent basis measure need known place prior permanent inclusion noise related control respected planning scheme 2 within shire bulla area likely affected overlay control existing land use zone conservation general farming b lot size 40 80 hectare therefore offer opportunity residential development conventional urban density introduced 3 based foregoing shire argued case non urban zone dual occupancy proposal necessarily increase density residential us therefore blanket prohibition dual occupancy considered totally inappropriate inequitable 22 4 similarly rural strategy plan recommends bulla township retain current status precludes intensification residential development noise affected area associated melbourne airport lack reticulated sewage town 5 shire reaffirmed consistent policy conventional housing subdivision occur area subject aircraft noise greater 20 anef contour application development falling within contour always referred fac comment 6 based experience referring matter fac shire found although referral may triggered land fall within interim mae area location subject site relation noise contour determined response fac application 7 approved anef known shire responsible authority perfectly capable accessing planning application within context 2021 well myriad planning implication affecting particular application consequently shire found requirement fac statutory referral authority unjustified irrelevant term providing comment respect provision 2021 8 shire bulla maintained adequate trigger mechanism australian standard 2021 adopted anef 20 noise contour mab overlay control set amendment 8 5 shire melton shire submission 45 presented mr david kirkland senior town planner land affected amendment area 45 sq km approximately northeast sector municipality land currently mainly within general farming b zone partly within reserved living zone council resolved object amendment following initial consideration june 1992 public meeting held digger rest 22nd july 1992 supporting melbourne airport strategy masterplan anef system shire considered need refinement regard extent nature proposed control 23 specific modification requested shire follows 1 area affected maea 1 2 control represents 10 area shire melton shire described drawing area boundary expansive approach extends area well beyond forecast noise contour given restrictive nature existing general farming b zone much area considered significant reduction boundary overlay control could undertaken submission included suggested reduction area still contained 20 anef contour supported proposition ease interpretation planning control boundary generally follow cadastral boundary 2 considered establishment fac referral authority accord principle approval process streamlined much possible council best position determine planning permit application submission noted even fac removed formal referral authority overlay control area require responsible authority must consider view fac deciding application 3 considered appropriate noise attenuation measure developed commonwealth required measure either specifically incorporated planning control condition certain us allowed presented definitive guideline assist council developer 4 dual occupancy remain permissible use within maea 1 overlay control within shire melton submission concluded stating overlay planning control limited far possible area identified noise affected control responsive underlying zoning constrain council responsible authority administration planning scheme impose unwarranted administrative burden council 24 submission 135 last day hearing shire provided panel information concerning appointment consultant undertake planning review rural area municipality agreement reached minister planning fac certain landowner property general farming band reserved living zone review general farming area within shire made necessary following recognition one basic premise zone retention broad scale farming activity become le le achievable relation negotiation analed pty ltd prudential project pty ltd lander property shire stated understanding proposed future development land would entirely consistent 2021 land question would covered maea 2 planning control area basis amenity future resident area protected accordance table land use compatibility advice negotiation enable appropriate development land supported shire 9 government department statutory authority submission offering objection received environment protection authority melbourne water vic road apart fac department planning government agency appeared panel department industry employment represented mr herron mr p mcclusky indicated melbourne airport would continue regarded pre eminent airport port phillip basin victoria international airport development might flow feasibility study westernport south east portion region would well next century needed would developed harmony melbourne airport 25 letter panel hon phillip gude mp minister industry employment 110 tabled outlined importance airport achieving government objective stimulating economic growth facilitating investment letter emphasised need planning measure ensure permanent reservation buffer zone allow compatible land us airport environs preserve access option airport measurles would protect airport gradual encroachment competing activity could compromise ability airport fulfill long tlerm role potential department saw airport offering opportunity export perishable general freight improving expanding aircraft maintenance facility melbourne base deregulated domestic australian international airline operator proposed expansion melbourne airport stated prime purpose department government amendment regarded critical future melbourne 10 gener l issue arising submission submission responsible authority large amount common ground submission received individual citizen private sector matter summarized following section 10 1 melbourne airport strategy many submitter expressed jeneral support melbourne airport strategy recognised particular economic importance airport whole northwestern suburb melbourne whole victoria however strategy questioned term cost restriction individual asked bear notion extending airport questioned ground expectation melbourne population growth substantially government prediction forecast provided air traffic growth maintained insufficient allowance made effect another airport constructed southeastern sector port phillip basin elsewhere region 102 others claimed projected time frame year 2040 distant take account likely technological advance reduction aircraft noise improvement aircraft performance 94 26 process involved preparing strategy criticized submitter west airport noted consulted eis prepared 40 draft eis september 1990 reference shire melton digger rest sydenham area likely affected runway option sc3 48 put adopted strategy melbourne airport subject environmental impact statement amendment therefore premature 94 another submitter felt fac proposal another east west runway vision may never built 87 regard proposal second north south runway bulla resident called original plan adhered shift runway west would cause problem acknowledged people previously bought property bulla knowing would affected airport suffer 63 felt bulla resident asked pay encroachment residential development allowed adjoining municipality south east airport 71 long time resident area previously worked farming property much airport area thought wanton vandalism 40 irreplaceable grey box stand northern end airport removed hypocrisy conservation law protecting tree yet commonwealth government hell bent desecrating rare stand tree 63 10 1 1 panel comment panel acknowledges forecast population growth air traffic movement likely vairiable certainly adversely affected economic climate last four year equally way predict certainty whether technological advance produce reduction noise associated aircraft operation however planning purpose amendment panel accepts mr kenna proposition reduction noise arising new technology likely offset higher traffic volume although date third fourth runway required may vary forecast highly probable ultimate capacity figure airport eventually reached 27 panel sympathetic concern submitter felt adequately consulted prior adoption sc3 however since protracted period work melbourne airport land use committee leading present amendment exhibition period adjournment subsequent hearing panel given land owner area opportunity prepare express concern loss portion grey box stand regrettable panel considers preservation area remnant vegetation major environmental importance local context recommends early commencement planting grey box tree area airport land using seed collected existing stand help offset loss provide additional habitat opportunity enhance landscape airport 10 2 consultation notification lack adequate consultation notification referred many submitter particularly concerned written notice given landowner affected area consequence absentee owner may remained uninformed local newspaper circulated part region surrounding airport notice amendment often dependent upon word mouth advice people lived 109 submitter found title amendment press notice singularly uninformative casual observer stated small advertisement easily missed gave indication extent overlay control involved number different account people heard amendment related melton submitter heard amendment local councillor told referred council agenda 40 bulla interim amendment l59 said introduced low key manner unnoticed many people 39 bulla village association submitted due inadequate notification forced send 400 notice member held two meeting claimed action resulted high proportion response bulla extremely high proportion objection amendment concern expressed area large migrant population english language newspaper would read 28 others concerned public representation melbourne airport land use committee local state government officer 38 regret expressed bulla representative committee report councilor seek advice council preparation report 91 10 2 1 panel comment although panel satisfied amendment advertised placed exhibition manner complied statutory requirement nevertheless opinion process deficient particular restriction proposed introduced improved future panel belief written notice given landowner area covered maea 1 2 representative municipal council told hearing would simple procedure co operate department planning development send written notice landowner respective municipality however variety strength objection made well put panel considers appropriately appraised thrust detail objector concern 10 3 airport noise several submission called improved long term observation monitoring noise around melbourne airport data would establish base line future change could measured submitter view aircraft noise varied statement land already subject high noise level call curfew imposed flying time statement often living closest airport effect aircraft noise pose problem 81 107 another aircraft impact resident health close window due aircraft noise 109a submitter lived northern end north south runway past fourteen year claimed fac undermined resident confidence point questioned whether wished keep living area resident claimed expert tell whether lifestyle diminished stated life adversely affected proximity airport 29 one submitter found concept noise control around airport interesting question freeway railway major road similar noise level overlay placed resident abutting area believed required around airport 64 another person area bulla stated people live area best people judge effect aircraft noise 91 concern expressed anef dose response curve contained within saa 2021 based upon 1980 survey evidence sydney aircraft much noisier consequently may possible translate finding le constrained melbourne airport generation quieter aircraft may well many unrelated non aviation factor taken account influencing people locational choice land us 95 evidence show contour particularly anef 20 precise due variable performance air traffic following standard operating procedure forecast based 107 one submitter thought problem noise imagined real stated people living area north airport able afford make choice wish continue live 102 10 3 1 panel comment diversity submitter view relation aircraft noise consistent data illustrated dose response curve standard show 25 anef example approximately 18 people subject noise seriously affected 39 moderately affected 43 either affected slightly possible submitter may wanted minimize adverse affect aircraft noise therefore need proposed control regardless particular motivation reaction noise submitter opposed amendment exhibited form context later comment regarding compensatjon issue panel noted following reference regarding reaction aircraft noise preface 2021 30 human reaction aircraft noise known depend amount noise also psychosocial factor personal sensitivity noise fear aircraft crashing attitude towards aviation thus individual seriously disturbed aircraft noise even building sited constructed according standard 10 4 overlay control submitter claimed planning authority failed establish basis amendment put forward throughout process preparing amendment exhibition period bulk panel hearing status draft anef contour remained doubtful 58 others claimed contour based speculative flawed acoustical assessment even contour could established argued overlay control unnecessary control land use area remain municipality 81 submission opposing amendment universal criticism extent environs area typical comment described maea 1 2 much large justified contour formed basis amendment 58 61 broadly based area boundary adopted 2 5 dba tolerance location contour looked cadastral significant physical boundary mark extent area meant boundary environs area significantly wider anef contour submitter opinion maea restricted noise affected area boundary reflect noise contour particular considered maea 1 accord 25 anef contour maea 2 boundary extend beyond 20 anef contour 61 91 divergence view amongst submitter relation boundary drawn supported described traditional planning view used melbourne airport land use committee boundary overlay area correspond cadastral boundary others maintained boundary contour include whole property crossed contour 58 72 one submitter preferred benefit approach saying unreasonable impose control broader land area affected noise evidence via anef formula support extended environs area shown called area reduced following logical physical boundary calder highway 31 mr k growcott acoustic consultant giving evidence relation property shire melton stated extend overlay control beyond area covered anef scheme unduly unnecessarily restrictive future land use anef curve system designed definitive planning guideline tool amendment l18 reflect 95 general submission covering abovementioned property noted many overlay control throughout metropolitan planning scheme follow property boundary example floodway management area skyline area control stream side environment control large allotment exist overlay control pushed whole property area affected 94 thought amendment provide efficient mechanism accommodating change overlay control boundary noise contour anef reviewed change time 58 one submitter concerned area covered amendment vast far excess area affected saw environs area quite different perspective suggested adopted current form would give commercial enterprise carte blanche aircraft travel vast area without consideration compensation affected freehold owner land 38 noting maea 1 close city another submitter suggested pity evict people much loved position make way machine felt world enough machine destroying economy human life 109 proposal simply imposition noise corridor expense owner 91 keilor resident action group stated strongly saying overlay control way avoiding paying compensation land acquisition 30 32 10 4 1 panel comment arriving maea boundary melbourne airport land use committee endeavoured recognise 20 anef contour difficult accurately define standard association australia 2021 1985 p 38 describes problem way b 2 3 traffic forecast flight path allocation anef method sensitive forecast air traffic movement allocation air traffic flight path departing arriving aircraft routed every attempt made ensure traffic forecast flight path accurate possible however major airport particularly accurate definition flight path extent 20 anef contour difficult achieve reason confidence location 20 anef significantly le 25 30 40 anef contour noted earlier panel informed committee allowed margin 2 5 dba 1 2 interval contour ensure noise likely adversely affect people would fall within area conveniently located cadastral physical boundary selected define area response request panel department planning development compiled table showing area land involved amendment table al show existing fac owned airport land add area recently acquired land yet acquired purchased negotiation table a2 set area municipality maea 1 2 total area amount 23 028 ha recognised planning boundary generally followed property cadastral survey line advantage system established certainty define parcel land used certain way may bought sold market convenient statutory planning purpose however planning practice legislation responded need environmentally aware community greater consideration given incorporating natural system information decision land use management many planning solution respond element geology topography hydrology soil vegetation boundary factor rarely represented straight line 33 noise area 3 draft anef contour inq udlng melbourne airpori land otecjares plan 1 refef esslndon aula malofi k eor meadow aneizone 352hi 365a8 j5 4o 458 31 330 38 30 35 1070 24 13 76 n3 53 8 33 25 30 2182 08 185 50 1395 46 170 71 20 25 4265 82 1849 97 2490 25 485 46 iroral 8329 1 2049 23 530s 10 664 50 draft anef contour excwding melbourne airport land otectares plan 4 7lefer esteikion 8uio mellon k b meac iows anefzone j 26 10 25 61 3 222a5 123 19 30 35 843 22 13 76 513 03 8 33 25 30 1995 02 18 50 1087 36 147 59 20 25 4218 79 1849 97 2308 28 467 87 loral 730s 58 2049 23 4057a7 623 79 wast miieaa rood note cflfference 1he total table 3 41 2311 9 hectare considercibie dortion ci fac owned land outside 1he 2oanef total 71 17 788 69 1115 16 3933 75 9091 50 16347 97 total 51 71 345 64 1378 34 3415a7 8844 91 14036 07 noiseaaeas detail requested panel 1 melbourne alrporr hectare area ha existing fac owned akpoit ianci 235350 acquisiion era recent acquisition 145 74 land yet acquired negotiotec 277 46 423 20 total 2776 7 2 area within melbourne airpori environs arfa 1 2 heclares essendoi bula 1on keior 8 meadow total maeal 0 6204 1155 1777 356 9c92 maea2 67 7078 3490 2526 375 13536 total 67 13282 4645 a303 731 23028 panel therefore see reason anef contour used define boundary overlay control area evidence referred earlier report confirmed contour accurately plotted established parcel land using digital mapping technique employed relation question far melbourne airport environs area extend panel take view ground sound basis establishing overlay control adopting standard 2021 using appropriate contour define boundary maea 1 2 thus maea 1 would include 25 anef contour maea 2 would encompass area 20 25 anef contour table prepared panel department area contained within contour calculated panel recommendation adopted difference extent overlay area exhibited proposed would follows area ha exhibited panel difference variation maea 1 9 492 5 191 4 301 ha 45 3 maea 2 13 536 8 845 4 691 ha 34 6 total 23 028 14 036 8 992 ha 39 0 recommending maea follow anef 20 25 panel recognises broad basis contour determined however panel give significant weight proposition direct translation planning scheme control community understand panel appreciate concern submitter land proposed inclusion say maea 2 significant distance 20 contour panel strengthened view anef contour used define overlay area two example permit application interim control referred fac attitude informed position property relation appropriate contour area boundary panel noted negotiation specific site conducted parallel panel hearing fac department planning development landowner particular municipality agreement reached party also decided relation contour 34 clear maea reflect actual contour control based corrected approximated area le closely related noise effect would always subject challenge 10 5 subdivision development although much land within mae area zone general farming b conservation effectively inhibit development many submitter saw amendment placing limitation expectation one day condition may change would possible subdivide sell portion property viewed prospect superannuation another submitter described felt increasing pressure rising rate cost associated encroaching small lot subdivision nearby quarry eroded ability farm land economically 66 shire melton review rural area present conducted submitter maintained land suitable subdivision resident land manager required avoid land becoming derelict 48 another melton resident regarded amendment inappropriate would reduce likelihood rezoning appropriate allotment size stating broad acre farming finished general farming zone melton 40 detail amendment criticised ground guideline permit subdivide land clause l34a 4 unworkable clause l34a l 2 requiring permit detached house inconsistent 2021 58 argued maintenance improvement environmentally sound land management practice mcnabs road area demand consideration alternate land use proposal 108 local member parliament mr bernie finn drew panel attention predicament people living 25 40 contour band stated zoning would allow develop property fac acquire property 40 anef contour market noise affected property close airport may inhibit property sold 35 10 5 1 panel comment panel note real restriction development present time area covered amendment existing zoning extent amendment restricts imposes condition upon development area shown noise affected reference approved anef based upon staged development full utilization melbourne airport panel agrees certain clause within amendment redrafted relevant responsible authority panel suggested alteration set section 12 4 report 10 6 dual occupancy submitter opposed proposal dual occupancy become prohibited use maea 1 felt putting another house acreage block conservation zone could described moving conventional residential development indeed thought limited development may allow area preserved 91 development constructed accordance sound insulating requirement zone would hardly likely constitute sort threat ongoing operation airport given limited circumstance dual occupancy provided submitted least discretion retained circumstance 88 others objected measure ground would make difficult provide accommodation member extended family 10 6 1 panel comment panel agrees would unreasonable make dual occupancy prohibited use within maea 1 accordingly recommend use permit required subject compliance standard 2021 36 10 7 referral authority status practically private submitter opposed notion federal airport corporation referral authority 75 de facto planning body 71 thought fac given power set planning authority submitter claimed usage land outside airport business fac far affect running airport 73 fac seen competition submitter 41 felt unfair fac involved adjudication role suspicion present protecting interest representative bulla village association stated people trust fac suspect control airport geared assure airport profit growth suggested solution put forward submitter fac body whose view taken account 30 secondly preferable point view orderly planning planning scheme articulates control reflect interest fac exercise discretion remain responsible authority alone 88 others said refer planning submission fac contrary current best practice term government policy delegated responsibility 87 one submitter suggested adequate performance standard made condition amendment would need refer permit application fac 58 long term viability fac role also questioned fac seen operator licensed civil aviation authority operate airport guarantee would continue operate way 44 concern expressed implication fac ever became privatised 72 102 noted even fac referral authority would still appeal right aat 10 7 1 panel comment panel opinion fac referral authority amendment australian standard 2021 1985 incorporated planning scheme acoustic performance standard available responsible authority examine permit application 37 maea 2 proposed use development meet condition 2021 standard permit would required permit application area mae 1 2 requirement seek view fac final submission panel fac noting council longer wanted proceed matter set land use committee report accepted referral authority 10 8 property value written submission following exhibition period landowner claimed amendment would lead devaluation property area restricted use land made difficult sell property affected overlay control claimed would lead area becoming blighted support proposition submitter hearing referred recent fac publication town planning airport p 6 stated cost noise exposure measured reduced land housing value affected area 106 another submitter quoted example effect noise factor property value citing drop 10 15 along major road thoroughfare decline 10 18 property 20 25 anef 30 35 anef contour quoted draft eis sydney parallel runway study prepared kinhills 1990 95 one submitter complained double impact land price go overlay control building price escalate noise insulation requirement 109 however submitter view uniform question landowner suspecting overlay control may device force land value enable fac purchase land cheaply maintained strategy working land value well maintained region 38 10 8 1 panel comment conclusive evidence put panel would enable make assessment whether land value affected interim control proposed amendment short time interim control operation may limited instance effect although established valuation methodology undertake task proving loss property value absence policy legislative basis lodge claim would make unlikely succeed present climate would difficult separate effect recession amendment opinion panel action respect unless evidence come light future provides firm evidence land value affected effect proposed amendment basis established valuation methodology 10 9 amelioration measure noted earlier hearing amendment delayed awaiting publication unisearch report aircraft noise amelioration study may 1993 although submitter limited time review study comment made panel subject general comment included statement effect amelioration study acute disappointment contains mass detail airport around world looking something specific tullamarine fruitless task treatise handle population around airport underscore possible serious abrogation right 39 another stated report take matter status canvass issue make recommendation 58 specific response fresh air ventilation replaced reverse cycle air conditioning house within affected area health problem would cause 109 regard question pay cost western regional commission said cost undertaking noise attenuation work existing dwelling borne authority responsible creation noise owner property suggested additional charge could levied air traveller create fund finance work compensation payment 101 39 10 9 1 panel comment clear need commonwealth government address issue amelioration study received panel understands government consideration matter delayed pending outcome study relation sydney panel opinion entitlement compensation arises resident noise affected area asked bear impact noise generated expansion major public asset benefit whole community appropriate measure compensation cost undertaking work necessary bring existing residence standard acoustic performance would enable resident continue live home standard living defined saa 2021 coming view compensation panel accepts principle financial compensation directed towards reduction noise problem caused aircraft thus money directed noise attenuation measure order noise exposure existing residence reduced acceptable standard estimate prepared amelioration study showed cost work 1992 93 standard three bedroom house ranged s7 300 slo 900 depending type construction roof wall noted cost achieving standard greater area higher noise level many home subject area substantial property considerably larger three bedroom residence referred study 10 10 compensation submitter claimed entitlement compensation broad range issue included request compensation paid loss property value 30 loss amenity caused expansion melbourne airport addition compensation land totally acquired recompense also requested action fac effect detrimentally affecting land acoustically others thought fac pay noise insulation new existing structure compensation paid increased cost construction 40 claimed people owned property prior establishment melbourne airport purchased commenced basis hey would affected noise excess 20 anef given option acquired paid compensation diminution property value undertake appropriate sound proofing 107 comprehensive example approach claimed development new runway melbourne airport result property falling within 25 anef contour give rise compensation right must clearly defined 58 even broader perspective local landowner must allowed flexibility manage asset without unnecessary layer bureaucratic control impingement flexibility result full adequate compensation taking place 66 precise approach advanced proposition aircraft overflying property constitute trespass airspace since responsibility ensure restriction placed property owner kept minimum consequent loss borne commonwealth property owner 72 another submission called creation acoustic easement mean section 173 agreement question cost fall also addressed submitter claimed amendment represented de facto reservation submitter land without compensation 94 authority seen attempting impose public benefit private cost individual landowner 106 thought responsibility noise pollution airport sit squarely aviation industry 102 reference land acquired submitter observed land acquired public purpose land sufficient purpose include necessary buffer area authority acquire term modify operation ensure measurable detriment occasioned land 58 landowner whose property proposed public purpose reservation called sale property private negotiation cost assistance benefit available land acquisition act another submitter reiterated earlier call adequate noise monitoring around airport base line noise level could established order facilitate claim hearing loss later date 41 10 10 1 panel comment although introduction amendment result increased noise effect clear panel revised strategy melbourne airport development use airport accordance strategy result increased noise effect adversely affect resident environs area cost enabling major infrastructure investment generator economic activity grow full capacity forecast period year 2040 cost borne whole community landowner surrounding region alone panel opinion response adverse impact increased aircraft noise related severity noise legal administrative measure available approach include 1 purchase acquisition fac behalf commonwealth land worst affected area panel note response horscan recommendation commonwealth government agreed person forced live within 35 anef contour new airport developed provision available existing airport deliberately enlarged accordance formally adopted fully funded strategy plan panel opinion necessary recognise timing purchase acquisition important consideration property owner informed future development new existing airport make property subject excessive noise level 35 anef information relating arrangement purchase acquisition access process also made available even forecast noise impact time away panel considers landowner wish move able without await fiscal convenience fac recognised danger placing undue limitation amount land acquired purchased development aspiration landowner agreed trade order lessen immediate bill land purchase however consequence negotiated solution may create encroachment amendment seek avoid 42 2 residence mae area existence commencement interim overlay control eligible grant cover cost agreed schedule work approved contractor necessary bring residence standard acoustic performance set 2021 commonwealth victorian government horscan committee fac melbourne airport land use committee endorsed 2021 appropriate standard complied relation airport noise panel view inescapable commonwealth government regulatory authority seek impose restriction require resident suffer site effect revised melbourne airport strategy commonwealth government authority required pay cost bringing residence standard acoustic performance would demand others moving area panel suggests limit placed upon time grant could taken course hearing number suggestion made way commonwealth government might raise necessary fund compensation reimburse owner incurring additional cost associated noise insulation measure included levy airline passenger freight revolving fund provide interest free loan tax deductability noise amelioration work 3 mae area restricted locality demonstrated measurable noise impact occur accordance 2021 panel indicated earlier comment prepared recommend adoption maea exhibited proposal advanced panel a1 e taken area affected amendment would reduced approximately 39 change would reduce area also need compensation implied license operate aircraft le accurately defined flight path larger environs area 43 11 site specific issue 11 1 keilor resident action group mr callander solicitor presented submission 30 behalf 26 resident mcnabs brown arundel milburn road area described topographically diverse ranging tableland airport located deeply incised valley associated river flat market gardening carried land us include general farming scattered small acreage rural residential property submission sought land rezoned enable subdivided allow rural residential small farmlet style allotment fac requested extend land acquisition program propertjes greatly devalued made virtually unmarketable due amendment new strategy submission described called legitimate expectation property owner area population growth airport development continued commercial farming become impossible except market gardening river flat rural residential farmlet style development occur claimed least existing lot able least one house dual occupancy development anticipated would lift number residence area approximately 40 present 100 200 described insignificant rural context melbourne airport stated planning blight evident one travel north mcnabs road blight increase barbiston road closed link north west lost observed land control fac show sign degradation poor management evidence effect poor management would become evident private land restriction imposed amendment regard dual occupancy prohibition subdivision implemented stated would compound amenity detriment perceived acoustic intrusion submission concluded fac seek extend melbourne airport acquiring least possible land imposing restrictive overlay control minimize land acquisition cost stated proposed public purpose reservation 1 area north mcnabs road barbiston road insufficient enlarged least include property belonging mr mr j neven 44 11 1 1 panel comment subject area particularly isolated pocket land bounded west south side river valley north eastern side melbourne airport exception river flat property small commercially viable agricultural undertaking northern section mcnabs road noise level high allow increased residential development panel informed mr john lawson behalf minister discussion party involved submission agreement reached fac city keilor fox ioannidis family future development option property mcnabs road keilor understood council prepare amendment allow subdivision 5 ha allotment greater part land excluding northern portion fox property panel particular comment initiative view relation extent maea 11 2 j n neven mr peter druce solicitor represented mr mr neven speaking written submission 97 outlined history issue property situated northern end mcnabs road keilor location mr l kenna described extreme noise situation approved anef map 30 anef contour bisects property mr mr neven claimed treated unfairly purchased property 1981 built home 1982 3 advised different north south runway alignment 1987 88 airport plan came display 1987 88 land shown within proposed public purpose commonwealth reservation acquired submission stated purchaser likely found area bisected 35 anef contour reference made commonwealth government response horscan report 1985 recommended person forced live within 35 anef contour nem airport developed clear mr mr neven wish live location 45 mr druce table psychological assessment documented stress mr neven suffered period melbourne airport strategy plan prepared consequent amendment exhibited 11 2 1 panel comment opinion panel catalogue confusion relation property mirror specific way lack clear policy commonwealth fac regard acquisition purchase land required melbourne airport compensation effect airport generated noise light agreement made adjoining landowner southern section mcnabs road course hearing neven case made seem inequitable resolved without delay hardship ground 11 3 shire melton rural area panel heard convincing evidence several landowner shire melton effect commercial farming longer viable general farming zone affected amendment 40 48 video film taken one submitter provided graphic evidence impact noxious weed particularly serrated tussock artichoke thistle recent dog attack sheep theft vandalism unauthorised shooting dumping rubbish stolen car due encroaching urban environment area support service farmer form saleyards stock agent machinery repair one farmer noted ten traffic light cross go sunshine silo farming made difficult poorly managed government land adjoining area allowed become derelict soon intensive management area cease property become virtual wasteland landowner said suffering financial hardship property large domestic hobby farming yet small broad acre farming 87 plight area well summed submission said general farming b zone metropolitan melbourne zone support farming agriculture rather non urban non development zone used define boundary established urban area urban fringe 94 46 solution problem area would increase rather decrease number resident land manager living small acreage allotment would able monitor movement area manage land intensive basis amendment criticised ground consideration given spend working hour outside noise affected area sound proofing solution farmer monitor land stock reference sound concern also expressed increase aircraft noise could adversely affect stud farm 125 valuable mare visited 50 amendment said unnecessary objective general farming b zone melton planning scheme entirely consistent purpose maea 1 plainly working present circumstance 58 11 3 1 panel comment panel particularly concerned excessive extent overlay control beyond relevant noise contour shire melton time hearing submitter advised real restraint changed pattern land use area lay existing zoning provision hoped review rural area within shire melton presently conducted positive move towards providing practical financially viable solution area operating unsatisfactory basis present time 11 4 request development rezoning access addition making submission relation amendment submitter saw hearing opportunity put case approval particular project m irving sunbury road bulla 41 request rezoning mr nimmo 73 submitter understood issue panel could address concerned fac potential referral authority operator owner airport related commercial development may interest frustrating proposal similarly mr k mclaughlin 93 claimed faa refusing negotiate since 1988 regard gaining access quarry road ground would competition 47 11 4 1 panel comment panel unable make comment relation matter planning province council responsible authority respective planning scheme 11 5 prudential project analed lander course hearing legal representative prudential project pty ltd analed pty ltd mr mervyn lander conducting negotiation fac department planning development relevant municipal council panel privy negotiation final submission fac panel advised agreement reached prudential project analed restore underlying zoning changed part interim amendment preceding amendment bring maea l area boundary conformity zone boundary without infringing upon 25 anef contour certain safeguard noise amelioration standard based 2021 proposed incorporated planning permit residential development provision also made agreement ensure nature special requirement brought attention purchaser panel provided copy head agreement 116 119 party requested commend agreement minister recommendation sign well acting provision deal zoning mae boundary panel also provided copy recommendation behalf submitter mr mervyn lander 120 made panel following discussion fac department planning development shire melton recommendation request panel modify boundary maea 2 area accordance plan attached document effect mr lander property whole presently included within proposed maea 2 area would leave approximately 1 4 property within modified boundary area 48 11 5 1 panel comment panel opinion extremely regrettable party major interest outcome hearing make submission panel instead conducted private negotiation monitoring significant submission panel action deprived panel input data might obtained expert witness left participant panel process impression deal negotiated behind closed door available party practice encouraged regard prudential project pty ltd analed pty ltd proposal contained head agreement consistent general recommendation panel making matter therefore recommends signed minister implemented manner requested relation mr lander property boundary maea 2 recommended panel 20 anef contour take smaller proportion property boundary modification suggested panel recommend modification made manner requested basis panel recommendation even le lander land encumbered 12 recommendation considered amendment read heard submission inspected area affected panel recommends amendment varied following effect 12 1 boundary melbourne airport environs area 1 2 overlay control apply correspond approved anef contour melbourne airport maea 1 incorporates long term noise exposure 25 anef maea 2 incorporates long term noise exposure 20 25 anef 49 12 2 area presently included maea 1 2 within approved anef 20 25 b subject later amendment given extens1ve attention given present amendment panel considers action give rise appointment panel 12 3 area transferred city keilor city essendon subject maea control time 12 4 ordinance amendment amended following effect 1 heading purpose guideline permit area word compatible operation melbourne airport add word accordance th adopted melbourne airport strategy 2 dual occupancy deleted list prohibited us maea 1 added list us permit required 3 new building work clause inserted along following line building work new building type listed table 3 3 australian standard 2021 1985 entitled acoustic aircraft noise intrusion building siting construction issued standard association australia time time shall constructed achieve indoor design sound level set opposite building type table 4 notice permit application given fac comment follows maea 1 application maea 2 hotel light industry medical centre motel office place assembly place worship flat dual occupancy notice required given clause application fence shed garage outbuilding normally ancillary dwelling 50 5 detached house maea area otherwise prohibited complying 2021 require planning permit purpose airport control otherwise permit required 6 editorial change consequent 12 5 fac designated referral authority purpose amendment 12 6 head agreement negotiated federal airport corporation department planning development analed pty ltd 116 prudential project pty ltd 119 signed minister planning implemented manner requested 12 7 recommended boundary modification sought mr mervyn lander adopted basis panel recommended boundary even le lander land would fall within mae subject alteration panel recommends broadmeadows planning scheme amendment l31 bulla planning scheme amendment l60 keilor planning scheme amendment l45 melton planning scheme amendment l18 adopted response minister request panel make recommendation relation compensation panel recommends 12 8 fac purchase negotiation residential property situated within 35 anef contour owner indicated wish move sell property negotiation protracted fail reach conclusion within reasonable period say six month first offer matter become subject relevant section commonwealth land acquisition act appropriate legislation 12 9 special consideration given purchase neven property without delay one basis ground relieving hardship personal distress 51 12 10 residence maea 1 2 existence commencement interim overlay control eligible grant cover cost agreed schedule work approved contractor necessary bring residence standard acoustic performance set saa 2021 assistance remain available limited period time say five year taken fact noted title 11 ill j 0j f b iivjv richard walter chairman 12th november 1993 p ter brown 52 appendix chronological listing submission exhibit 2 3 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 2l 22 23 24 25 26 27 28 29 30 3l 32 33 33a 34 35 36 37 38 39 40 4l 42 43 44 45 46 47 48 49 50 path tone pty ltd submission letter behalf vashbel pty ltd part planning scheme map letter city keilor department planning submission exhibit federal airport corporation submission federal airport corporation act f c background information mr robert young map melbourne airport 1959 existing zoning map 23 june 1993 aat appeal 1991 18190 tomkinson bulla statement planning policy 6 land use aerodrome planning note planning control around airfield aircraft operation australian community horscan mr l c kenna aircraft noise australia caa australian noise exposure forecast system copy horscan report 1985 map melbourne airport draft anef building site acceptability based anef zone aerial photograph neven property plan showing runway option sc3 maea 2 overlay control v outer tolerance allow 20 anef 1 11 25 lloyd others v robinson van der meyden v mmbw shire eltham referral application within maea 1 special residential zone 1 broadmeadows city keilor submission keilor resident action group photocopy noise contour modification draft eis draft anef contour mcnabs road area extract metropolitan regional section map city keilor city essendon submission shire bulla general plan strategy plan 1993 submission planning policy domestic construction w p mole riverlea konagaderra road oakland junction g e seid blackwells lane bulla mr r hall holden road digger rest m irving sunbury road bulla plan nursery motel conference facility c irving plan proposed retail plant nursery c irving wes willoughby associate c irving shire melton submission modified plan prudential project pty ltd aat appeal 1991 040784 extract g ford holden road digger rest v f f submission shire melton rural review g j taylor holden road digger rest plan 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 68a 69 70 71 72 73 74a 74b 75 76 77 78 79 80 8l 82 83 83a 84 85 86 87 88 89 90 91 92 92a 93 94 95 96 97 98 99 100 permit application letter fac shire bulla shire bulla submission horscan committee 1983 control aircraft visibility extract planning scheme p f sullivan cad project manager fac melbourne fac letter department planning 26 july 1993 3 august 1993 aat appeal 1993 020980 j h fenton fac r f jane b ford j p f koroneos wima nominee pty ltd deer park nominee pty ltd submission supporting document including keilor amendment l40 fac letter department planning 27 july 1993 map j mathews newman park bulla digger rest road digger rest plan showing contour maea 1 j mckenzie 525 sunbury road bulla j c mckenzie h richards wildwood road bulla map miss c alston cnr craigiburn oakland road bulla cavour club loeman cooper road bulla aat appeal 1991 040784 prudential project pty ltd governor council determination appeal 1991 040784 head agreement prudential project fac minister planning plan prudential project pty ltd banchory grove mr mr g sewell mr mr r burgess wildwood road bulla lillian hann c section 16 parish holden minno lot 1 435 mickleham road attwood civil aviation act 1988 building control regulation j jordon 520 plumpton road digger rest draft australian standard p technology melbourne airport strategy review impact melbourne airport strategy governme t response horscan wbm consulting service november 1991 aircraft noise home ment transport communication fac australian airport forecast 1992 2012 e j fanning sunnyside 20 loeman road bulla j lawson behalf minister planning city keilor letter panel pathstone pty ltd allan farquhar techo nominee pty ltd calder highway south digger rest concept plan techo nominee copy application rezoning techo nominee g l jamieson cnr holden plumpton road digger rest rio vista soil pty ltd flora street keilor melway plan locating flora street property aerial photograph rio vista property h richards wildwood road bulla l tarleton rockband landcare group vff melton k mclaughlin quarry road tullamarine l mingot lot 31 32 holden road sydenham douglas k growcott evidence c mingot fisher stewart letter department planning john alex nola neven mcnab road keilor davidson trahaire report c neven photocopy plan showing land affected airport strategy commonwealth ombudsman letter mr mr neven 10l 102 103 104 104a 105 106 107 108 109 110 11l 112 93 113 114 115 116 117 118 119 120 12l 122 123 124 125 90 126 127 128 129 130 13l 132 133 134a 134b 135 136 137 138 139 140 western region commission john p lovell 75 st john road bulla medium release hon stewart west p photocopy part contract sale r p shaw fac fac letter mr mr shaw 30 may 1989 copy extract land acquisition act john w fox mcnab road keilor frewin cnr arundel armadale road keilor kathleen fox mcnab road keilor v jankovic ada arundel road keilor minister industry employment letter panel port phillip region airport airspace study 1991 city broadmeadows letter department planning 26 july report 1990 anei shire bulla amendment l77 notice amendment plan subdivision analed pty ltd melton east head agreement analed fac minister planning minister planning letter analed pty ltd 25 august 1993 prudential proj ect pty ltd 25 august 1993 head agreement prudential project fac minister recommendation behalf mervyn lander minister planning submission right reply fac final submission panel map copy approved anef melbourne airport map showing area anef could reduced fac letter mr mr neven 21 dec 88 23 june 89 8 oct anef anei comparison map 2 australian government solicitorlfac correspondence aic shaw substituted special use 13 zone plan aic pathstone pty ltd city keilor adoption pathstone proposal plan portion keilor planning scheme map location submitter plotted anef map city keilor reply submission city essendon reply submission shire bulla additional information requested panel ii rural area strategy melton submission reply john p lovell letter panel dated 11 august 1993 k r wrigley letter department planning 15 august 199 copy correspondence j boyce r shaw transcript panel hearing 2 3 5 august 1993 transcript direction hearing 15 july 1993 |
Linfox Australia Pty Ltd [2014] FWCA 6584 (19 September 2014).txt | linfox australia pty ltd 2014 fwca 6584 19 september 2014 2014 fwca 6584fair work commissiondecisionfair work act 2009s 185 enterprise agreementlinfox australia pty ltd ag2014 8831 linfox queensland workshop agreement 2014road transport industrycommissioner robertssydney 19 september 2014application approval linfox queensland workshop agreement 2014 1 application made approval enterprise agreement known thelinfox queensland workshop agreement 2014 agreement application made pursuant tos 185of thefair work act 2009 act linfox australia pty ltd company agreement single enterprise agreement 2 17 september 2014 undertaking provided mr r dalton workplace relation advisor company pursuant tos 190of act accept company undertaking copy undertaking attached decision annexure form part agreement 3 satisfied requirement ofss 186 187and188of act relevant application approval met 4 agreement approved accordance withs 54of act operate 26 september 2014 nominal expiry date agreement 30 june 2017 commissionerprinted authority commonwealth government printer price code g ae410214pr555688 annexure avar _gaq _gaq _gaq push _setaccount ua 9592794 1 _gaq push _trackpageview function var ga document createelement script ga type text javascript ga async true ga src http document location protocol http ssl http www google analytics com ga j var document getelementsbytagname script 0 parentnode insertbefore ga |
Doohan and Western Australia Police Force, Re [1994] WAICmr 13 (5 August 1994).txt | doohan western australia police force 1994 waicmr 13 5 august 1994 office information commissioner w file ref 94036decision ref d01394participants mr john william daniel doohanapplicant western australia police forcewestern australia police forcerespondentdecision reason decisionfreedom information refusal access deemed refusal ambit applicant request personal information sufficiency search relevant document power require search power give direction additional search additional inquiry integrity search unreasonable require detailed examination every document held agency destruction document exempt agency right access document exempt agency allegation deliberate destruction concealment record allegation record improperly transferred offence 110 foi act freedom information act 1992 wa s 10 1 11 13 20 21 26 30 42 64 65 1 68 1 72 1 b 75 76 1 110 schedule 1 clause 3 5 2 schedule 2 foi act library board western australia act 1951s 30 2 3 smith administrative service department information commissioner qld unreported 30 june 1993 anti fluoridation association victoria secretary department health 1985 1985 aata 201 8 ald 163 decisionthe deemed decision agency 25 march 1994 refuse access document created 1974 1984 contain personal information applicant confirmed b keighley gerardyinformation commissioner5th august 1994reasons decision1 application review information commissioner arising deemed refusal western australia police force agency provide mr john doohan applicant access certain document applicant claim exist exist within agency background2 applicant claim active campaigner civil liberty western australia number year claim period frequent contact member agency member parliament past commissioner police ombudsman matter personal public concern certain activity agency accept consequently significant amount correspondence generated applicant various public officer including agency 3 17 january 1994 applicant lodged access application dated 12 january 1994 thefreedom information act 1992 thefoi act agency requesting access document active inactive relating held western australia police force within department section branch including protective service anti terrorist unit internal investigation branch document document defined foi act 4 applicant particularised request document reference various contact claimed agency since 1974 reference specific case people incident also indicated request related personal information would accept edited access requested document personal information people deleted 5 27 january 1994 agency wrote applicant stating pursuant obligation underss 11and20of thefoi act sought agreement redefine request following term document containing personal information relating criminal traffic licensing administrative record agency claimed supported file note agency foi file matter 11 march 1994 applicant telephoned agency indicated agree redefine request agree extension 30 march 1994 permitted period within agency must deal application 6 however day 53 day lodging request thefoi act applicant wrote agency received notice decision access application within permitted period 45 day letter alleged officer agency verbally advised record could found therefore requested internal view agency deemed refusal provide access requested document 7 25 march 1994 chief superintendent mott conducted internal review granted applicant edited access 4 document access full 67 document described schedule supplied earliest document supplied applicant appears one dated 7 may 1984 undated chief superintendent mott also advised applicant protective service unit exempt agency material relating applicant existed within unit would exempt provision act far release information concerned 8 letter dated 8 april 1994 received office 11 april 1994 applicant applied external review agency decision 25 march 1994 letter applicant claimed additional document existed agency also alleged record withheld without explanation record could improperly transferred agency exempt agency 9 applicant complaint office therefore consisted three separate issue overlapped degree first issue apparent deemed refusal access document dated 1974 1984 pre 1984 document second concerned sufficiency search effort conducted agency respect document actually supplied post 1984 document third issue applicant allegation possibility conduct occurred amounted offence unders 110of thefoi act jurisdiction information commissioner deemed refusal access pre 1984 documents10 section 65 1 thefoi actspecifies type decision agency information commissioner may investigate unders 26 2 decision refuse access document cannot found exist refusal access reviewable unders 65 1 however instance applicant provided notice unders 26 1 11 applicant access application made clear seeking access document containing personal information dating 1974 specified particular incident believed would generated documentary record although agency attempted obtain applicant agreement reduce ambit application applicant agree change term request appears agency proceeded basis original request however applicant receive required notice decision unders 13 1 b within permitted period section 13 2 state f applicant receive notice subsection 1 b within permitted period agency taken refused end period give access document applicant taken received written notice refusal day period ended 12 deemed refusal access reviewed chief superintendent mott purported deal original request releasing number document full number deletion providing notice decision explaining matter deleted edited document deleted outside scope access application matter relating third party applicant however none document released referred notice decision related period 1974 1984 view agency obliged provide applicant explanation relation pre 1984 document document existed decision refuse access document addressed notice decision underss 42and30 document longer existed could found never existed notice explanation provided unders 26 1 alternatively agency refused deal part request relating pre 1984 document relevant notice unders 20 3 4 required 13 event notice kind provided applicant respect document applicant alleged existed period basis accepted complaint applicant deemed refusal access pre 1984 document applicant said held agency b sufficiency search effort relating post 1984 document 14 external review complaint information commissioner specific power unders 26 2 require agency conduct search requested document agency notifies applicant pursuant tos 26 1 requested document exist cannot found however case notice issued applicant power unders 26 2 arise instance accepted complaint deemed refusal access unders 13 2 view power require search circumstance arises power unders 76 1 course dealing complaint review decision made agency respect access application decide matter could decided agency power unders 70 4 determine procedure give direction conduct proceeding 15 commonwealth victorian administrative appeal tribunal considered case question jurisdiction external review body consider sufficiency search issue arisen recently information commissioner queensland extensively canvassed relevant authority question decisionre smith administrative service department unreported 30 june 1993 paragraph 7 61 concluded paragraph 60 61 based commonwealth experience review function included jurisdiction review power give direction respect sufficiency search issue consider necessary analyse detail authority issue respect adopt reasoning queensland information commissioner inre smith western australia sfoi actcontains provision analogous relied upon queensland information commissioner are 76 1 70 4 w foi act 16 view following part decision commonwealth administrative appeal tribunal inre anti fluoridation association victoria secretary department health 1985 aata 201 1985 8 ald 163at 168 cited approval queensland information commissioner inre smith paragraph 58 relevant consideration power relation sufficiency search issue complaint section 58of act empowers administrative appeal tribunal proceeding underpart viof act review decision made agency respect request also decide matter relation request act could could decided agency expression decideany matterin relation request broad includes satisfied preliminary decision extent search made document tribunal lacked power decide matter object act could readily frustrated deliberate inactivity response request access satisfied power tribunal power unders 43 2 theadministrative appeal tribunal act 1975to give direction procedure followed connection hearing proceeding tribunal virtue ofs 33 1 procedure within discretion tribunal nature resource tribunal probably could proceeding undertake detailed examination agency filing system make decision relation making search inquiry officer agency enable requested document located give appropriate procedural direction relation evidence failure comply decision might punishable unders 63of theadministrative appeal tribunal act 1975 review process17 13 april 1994 accepted applicant complaint formally notified agency pursuant tos 68 1 thefoi act pursuant toss 72 1 b and75 1 thefoi acti required production document access provided way edited copy agency foi file matter 18 purpose dealing first two issue raised applicant complaint office question must answered reasonable ground believe requested document exist search conducted agency locate document reasonable circumstance view function physically search document behalf applicant function examine detail agency record keeping system 19 applicant described number specific instance claimed contact member agency year appeared reasonable conclude document may exist therefore requested information agency 13 april 1994 detailing extent search undertaken invited comment applicant claim document existed especially created period dating 1974 1989 20 letter dated 22 april 1994 received office 26 april 1994 agency replied request described search undertaken consisted search computerised central record index directing tracer file area identified possibly holding file document might fall within ambit applicant request area checked included internal investigation branch tactical response group chief office record administrative record latter probable source non operational record agency submitted believed fully complied applicant request agency asserted provided copy document located identified within ambit applicant request claimed exemption deleting matter come within term request matter related third party applicant 21 4 may 1994 member staff attended agency officer inspected record system method adopted agency locate relevant document officer also made inquiry specific incident raised applicant whether incident would necessarily generated documentation response specific inquiry officer agency advised officer occasion officer agency contact member public applicant case necessarily mean contact lead generation documentation officer also advised certain instance possible documentation created prepared result contact 22 based agency evidence inquiry officer appeared agency made reasonable effort locate relevant document 6 may 1994 applicant advised one officer attended agency advised inquiry officer made respect search undertaken formed preliminary view document requested applicant either exist could found applicant requested advise office whether light preliminary view wished pursue complaint also advised preliminary view following inquiry incident referred would necessarily generate record document extent believed would 23 16 may 1994 received applicant written advice wished pursue complaint sought opportunity present relevant information 26 may 1994 wrote applicant confirming preliminary view advising unless detailed information relating document claimed applicant exist provided could take matter 24 2 june 1994 applicant supplied office list date event police contact dating 1974 said document must exist document supplied letter dated 10 june 1994 agency requested conduct search record provided copy applicant list assist process also sought explanation writing manner search conducted response applicant allegation document withheld directed exempt agency 25 24 june 1994 received undated letter foi manager agency informed additional search undertaken w ith chief office record internal investigation branch tactical response group crime support unit additional inquiry made respect pre 1984 document document located advised following discussion officer charge chief office record clerk charge document identification revealed type document referred applicant culled accordance section 30 library board act retention disposal authority place time furthermore unable clearly establish date culling process due change organisational structure section 26 1 july 1994 one officer spoke officer protective service unit police force relation applicant allegation document agency relating applicant may transferred unit exempt agency order avoid access document thefoi act matter addressed paragraph 38 42 27 8 july 1994 agency responded writing request search letter signed behalf acting commissioner police said retracing step originally made conducted search tracer file originally sent section involved name title person involved search indicated advice certificate located tracer file person conducting search given written instruction implement search copy instruction attached letter manner section may conduct search depends resource record keeping method section disposal police department document carried accordance section 30 library board act police department policy regarding destruction document related schedule currently reviewed redeveloped importance treatment record document ongoing process findings28 applicant requesting access document must rely integrity search conducted relevant agency instance may justification applicant belief document exist additional search uncover document identified initially understandable applicant sceptical record keeping practice agency however believe thefoi actrequires agency guarantee system infallible would expecting impossible recognise document may readily found number reason including misfiling poor record keeping ill defined request proliferation record system unclear policy guideline inadequate training record management andnon existence 29 however agency unable locate requested document adequate statement reason may go way towards reassuring sceptical applicant view minimum requirement brief explanation step taken agency satisfy request explanation include location searched location chosen description search conducted example computer search manual search file series card index checked 30 correspondence office applicant described basis belief document existed withheld agency expressed general term following comment example considerably incident formal contact wa police force must resulted police record record personal nature activity correspondence dated 8 april 1994 referred particular incident officer agency said took note short interview tape recorder running record would show reported interview greatly incorrect like know full extent note must exist must made left place interview 31 14 may 1994 letter applicant stated genuine understanding federal foi experience record refers name validly subject access application 32 satisfied agency explanation many incident identified applicant would necessarily generate document containing personal information applicant glossary thefoi act personal information defined meaning information opinion whether true whether recorded material form individual whether living dead whose identity apparent reasonably ascertained information opinion b identified reference identification number identifying particular fingerprint retina print body sample 33 essence definition information personal information must identify individual way reveal something individual requested information posse character may exempt clause 3 thefoi actor information personal applicant 21provides must considered factor favour disclosure question case applicant denied access information identifies way view agency rightly concluded applicant seeking access document relating apparent written decision chief superintendent mott 34 mere mention applicant name document insufficient view constitute personal information reason view many incident applicant say would generated document unlikely fall within ambit access application example document created police specific inquiry course inquiry applicant spoken police interviewed observed somewhere document may contain personal information applicant 35 experience former police officer also aware practice vary amongst member agency inclined others take keep detailed note agency located searched 33 file diverse location order satisfy request view factual basis applicant view contact agency year would matter course generate document evidence support belief document exist satisfied therefore search conducted agency locate relevant document instance reasonable would unreasonable require detailed examination every document held agency thefoi actitself require course action 36 also accept explanation agency evidence library information service western australia liswa document lawfully destroyed 30 2 3 thelibrary board western australia act 1951which provide follows 2 officer charge public office may destroy dispose public record class public record custody control public office destruction disposal accordance retention disposal schedule term authorized officer board concurred b board informed officer writing require public record class public record transferred board inclusion among state archive otherwise 3 public record destroyed disposed officer charge public office custody control public record shall notify board intention destroy dispose public record notification shall specify nature public record concerned 37 although agency unable provide record document destroyed subsequently obtained copy retention disposal schedule liswa document authorised general term destruction inter alia record relating complaint complaint police district complaint miscellaneous arrest assault warrant summons crime various category record described schedule period record category must retained destruction also listed period varies according class document held longer others may helpful agency obtain copy schedule liswa provide copy applicant show good faith allegation offence section 11038 section 110 provides destruction documents110 person conceals destroys disposes document part document knowingly involved act purpose sole otherwise preventing agency able give access document part whether application access made commits offence penalty 5 000 imprisonment 6 month 39 penalty attached section indication degree seriousness parliament view deliberate destruction concealment record however constitute offence evidence must establish concealment destruction disposal done intent prevent agency able give access thefoi act 40 view evidence offence unders 110has committed applicant offered evidence belief document transferred exempt agency protective service unit copy alleged content one document supplied agency document memorandum dated 4 march 1993 acting commander discipline officer charge protective service refers applicant belief three volume file exists agency fact file located internal investigation branch memorandum recommends protective service unit confirm file exists area letter advice sent applicant 41 protective service unit exempt agency listed schedule 2 thefoi act letter sent unit applicant reasonable conclude applicant would already copy copy exists unit document created protective service unit exempt clause 5 2 applicant right given access document agency include right access document exempt agency section 10 1 thefoi actmakes clear general right qualified extent however officer protective service unit informed one officer unit hold file relation applicant 42 mindful suspicion applicant arise long standing distrust agency therefore sought express confirmation commissioner police document agency relating applicant transferred protective service unit purpose preventing access thefoi act commissioner gave assurance writing dated 3 august 1994 therefore find evidence offence thefoi act |
Lockhart v The State of Western Australia [2005] WASCA 121 (4 July 2005).txt | lockhart v state western australia 2005 wasca 121 4 july 2005 lockhart v state western australia 2005 wasca 121 4 july 2005 last updated 4 july 2005jurisdiction supreme court western australiatitle court court appeal wa citation lockhart v state western australia 2005 wasca 121coram malcolm cjwheeler jale miere ajaheard 6 april 2005delivered 6 april 2005published 4 july 2005file cca 39 2004between peter bowden lockhartappellantandthe state western australiarespondenton appeal file cca 39 2004jurisdiction district court western australiacoram eaton dcjfile ind 1898 2002catchwords criminal law procedure grievous bodily harm caused whether appellant acted self defence application ofcriminal code wa 248legislation criminal code wa 248result appeal allowedcategory brepresentation counsel appellant personrespondent mr k p bates m e abou merhisolicitors appellant personrespondent state director public prosecutionscase referred judgment nilcase also cited murray v queen 2002 hca 26 2002 211 clr 1931malcolm cj conclusion hearing appeal 6 april 2005 court unanimously opinion appeal allowed conviction appellant grievous bodily harm quashed order made accordingly agree reason published wheeler ja making order 2wheeler ja 19 march 2004 appellant convicted trial one count grievous bodily harm contrary 297 thecriminal code wa counsel admitted commencement trial caused complainant grievous bodily harm sole live issue whether prosecution proven beyond reasonable doubt grievous bodily harm complainant unlawful issue arose fact whether prosecution disproved self defence unprovoked assault beyond reasonable doubt 3 circumstance charge arose broadly appellant involved relationship complainant estranged wife complainant apparently upset relationship took rather hostile attitude towards appellant reason complainant estranged wife took step ensure two men meet however evening question appellant temporarily minding son complainant estranged wife wife house went get dinner complainant arrived unexpectedly short time complainant wife returned 4 evidence appellant estranged wife complainant visibly influence alcohol apparently shouting appellant speaking abusively son upset complainant estranged wife eventually got men leave attending son see happened outside house evidence appellant went outside complainant followed soon afterwards taking glass wine drinking 5 police arrived house shortly thereafter earlier telephoned appellant apparently seeking assistance removing complainant house observed complainant slumped ground trying get lot blood face two teeth missing observed also broken remains wine glass appellant told altercation driveway defended himselfagainst complainant attempted attack wine glass medical evidence complainant suffered grievous bodily harm injury consistent hit clenched fist evidence seems injury consistent one perhaps two significant punch face 6 hearing appeal appellant represented raised number ground largely going matter fact alleged fresh evidence necessary deal since court identified defect direction jury state conceded defect appeal allowed appeal therefore allowedinstanter reason follow later time 7 briefly summarised problem summing number occasion learned trial judge effectively reversed onus proof directing jury accepted evidence appellant appellant acquitted example page 137 appeal book referring appellant evidence honour said accept evidence either act would unlawful assault upon complainant page 140 appeal book honour told jury order second part 248 thecodeto operate must satisfied reason assault upon appellant reasonable apprehension death grievous bodily harm towards end direction spoken belief would found self defence circumstance honour said page 166 appeal book satisfied thing lawful use force necessary defence even though force might cause death grievous bodily harm number passage 8 course honour also gave usual appropriate direction onus standard proof however essentially one issue case issue self defence also case oath oath complainant appellant sole witness occurred immediately prior time grievous bodily harm inflicted upon complainant circumstance course real possibility jury might unable determine truth lay might accept account given appellant could matter reasonable possibility accurate without necessarily believing therefore particularly important circumstance case jury left inno doubt appellant satisfy event taken place described state disprove self defence reason considered necessary allow appeal 9le miere aja advantage reading reason decision wheeler ja agree honour reason nothing add |
Nilant (Trustee) v Macchia [2003] FCAFC 95 (19 May 2003).txt | nilant trustee v macchia 2003 fcafc 95 19 may 2003 last updated 19 may 2003federal court australianilant trustee v macchia 2003 fcafc 95costs section 7 thefederal court proceeding cost act 1981 cth whether present inability pay cost order purpose act obligation pay cost releasedfederal court proceeding cost act 1981 cth s 6 7 8 12bankruptcy act 1966 cth s 178 179federal court rule 62 r 45 62 r 46minister immigration multicultural affair v wang 2003 hca 11citedre charles philippe louis nilant trustee bankrupt estate mario silverio macchiano wag 51 1997spender carr finn jjperth19 may 2003in federal court australiawestern australia district registrywag 51 of1997between charles philippe louis nilant trustee bankrupt estate mario silverio macchiaapplicantand mario silverio macchiarespondentjudges spender carr finn jjdate order 19 may 2003where made perththe court decline grant charles philippe louis nilant cost certificate pursuant tos 7of thefederal proceeding cost act 1981 cth respect appeal wag 51 1997 note settlement entry order dealt order 36 federal court rule federal court australiawestern australia district registrywag 51 of1997between charles philippe louis nilant trustee bankrupt estate mario silverio macchiaapplicantand mario silverio macchiarespondentjudges spender carr finn jjdate 19 may 2003place perthreasons judgmentthe court 1 notice motion charles philippe louis nilant trustee filed appeal wag 51 1997 seeking order pursuant tosection 7of thefederal proceeding cost act 1981 full court federal court grant appellant appeal wag 51 1997 cost certificate respect appeal certificate state opinion full court would appropriate attorney general authorise payment act appellant respect cost incurred appellant relation appeal section 7of thefederal proceeding cost act 1981 cth theact provides cost certificate appellant federal appeals7 1 subject thisact respondent federal appeal pursuance order court required pay appellant cost section referred relevant cost incurred appellant relation appeal b undersubsection 6 1 2 respondent entitled apply court cost certificate respect appeal court application appellant may satisfied c respondent reason lack mean unable pay relevant cost part relevant cost payment relevant cost part relevant cost would cause respondent undue hardship e whereabouts respondent unknown grant appellant cost certificate respect appeal 2 certificate may granted subsection 1 court appellant federal appeal certificate stating opinion court would appropriate attorney general authorize payment thisactto appellant respect paragraph 1 c applies whole relevant cost part relevant cost respondent unable pay b paragraph 1 applies whole relevant cost part relevant cost payment would cause respondent undue hardship c paragraph 1 e applies relevant cost 2 circumstance application cost certificate somewhat unusual 3 appeal subject present application heard 14 july 1997 full court presently constituted ordered 15 september 1997 1 appeal allowed 2 order made 11 april 1997 set aside matter remitted lee j consideration 3 respondent pay appellant cost appeal proceeding lee j date 4 pursuant order appellant cost appeal deemed taxed 9 000 accordance 62 r 46 3 federal court rule pursuant 62 r 45 order entered 3 march 2000 mr macchia unsuccessful respondent appeal ordered pay trustee sum 9 000 cost proceeding lee j date similarly deemed taxed 3 600 order entered also 3 march 2000 mr macchia ordered pay trustee sum 3 600 amount owing way cost paid mr macchia trustee 5 trustee obtained issue official receiver bankruptcy notice mr macchia alleging debt 12 600 consequence cost order full court appeal wag 51 1997 6 determination appeal respondent made application lee j resulting judgment favour mr macchia year 2000 judgment subject successful appeal trustee innilant v macchia 2000 fca 1528 trustee bill cost respect proceeding lee j year 2000 amount 8 158 bill cost respect 2000 appeal 20 598 bill cost yet taxed 7 service bankruptcy notice mr macchia applied federal court order extending time compliance setting aside bankruptcy notice well damage trustee application subject judgment french j inmacchia v nilant 2001 fca 7 insofar damage claimed trustee underss 178and179of thebankruptcy act 1966 cth application dismissed mr macchia commenced proceeding writ 1470 2001 supreme court western australia claiming damage trustee 8 1998 supreme court western australia trustee supported application public trustee appointed administrator deceased estate mr macchia mother application unsuccessfully opposed respondent 1997 trustee sought appointed administrator mr macchia mother estate trustee cost two supreme court probate action taxed 10 december 1998 2 305 99 1 968 respectively 9 bankruptcy proceeding lee j 1997 2000 full federal court appeal 1997 2000 proceeding trustee represented carles solicitor action relation damage claim trustee french j federal court supreme court proceeding 2001 trustee represented freehills subsequently firm pynt mckay solicitor engaged trustee professional indemnity insurer 10 full court presently constituted 9 october 2000 granted cost certificate mr macchia respect 1997 full federal court appeal seenilant v macchia 2000 fca 1414 order court made 1 pursuant 6 1 thefederal proceeding cost act 1981 full court federal court grant respondent appeal wag 51 1997 cost certificate respect appeal stating opinion full court would appropriate attorney general authorise payment act respondent respect cost incurred respondent relation appeal b cost incurred appellant relation appeal required paid respondent appellant appeal pursuance order full court 2 pursuant tos 8 1 thefederal proceeding cost act 1981 full court federal court grant respondent appeal wag 51 1997 cost certificate respect new trial stating opinion full court would appropriate attorney general authorise payment act respondent appeal respect part attorney general considers appropriate cost incurred party relation new trial 11 respondent order mr macchia appellant trustee mr nilant 12 position court already granted cost certificate relation trustee entitlement payment cost mr macchia relation cost incurred trustee relation trustee appeal par 1 b order referred may therefore attorney general paid something mr macchia respect relevant part cost obligation trustee namely cost incurred trustee relation appeal seems u odd consequence recommended attorney general pay amount mr macchia respect obligation pay cost trustee relation trustee appeal court recommend attorney general pay amount cost incurred trustee relation trustee appeal direct trustee mr macchia may retained money paid attorney general account 13 consideration might given amendment thefederal proceeding cost act 1981so opinion full court respect cost referred in 6 1 b would would appropriate attorney general authorise payment act theappellant might necessary provide payment would dischargepro tantoof obligation respondent appellant respect cost appellant ordered paid respondent appellant 14 reason given case perhaps unnecessarily present application dealt notice mr macchia written submission paper full court constituted appeal wag 51 1997 court heard appeal 6 1 8 1 court 7 federal court australia seeminister immigration multicultural affair v wang 2003 hca 11 particularly 30 31 per mchugh j 61 per gummow hayne jj seems therefore 12 act provides jurisdiction conferred court act grant cost certificate may exercised member court sitting chamber authorises member federal court australia sitting chamber grant cost certificate act 15 difficulty present application deed settlement release entered 30 may 2002 pursuant deed trustee agreed pay net amount mr macchia trustee agreed follows seek cost order relation federal court action 7028 2000 b pursue cost 9 000 00 awarded federal court action wag 51 1997 c pursue cost 3 600 00 awarded federal court action wag 729 1991 seek enforce cost order macchia particular enforce cost order federal court action wg7007 1996 ii federal court action w62 2000 e contemporaneously execution document provide minute proposed consent order executed solicitor agreeing bankruptcy notice macchia dated 7 march 2000 set aside order cost item b concern cost subject present application certificate 16 consideration payment settlement sum trustee agreement set party released discharged party liability existing might document arise respect relating connection dispute b legal cost charge fee expense respect dispute 17 dispute referred appears schedule 1 deed dated 30 may 2002 dispute macchia sued nilant federal court perth registry action 7028 2000 west australian supreme court action civ1470 2001 seeking damage alleging inter alia breach ofsections 178and179of thebankruptcy actand negligence relation nilant role trustee bankruptcy macchia nilant denies liability nilant successfully struck claim pursuant tosections 178and179of thebankruptcy actin federal court action argument order relation cost strike application adjourned heard 18 notwithstanding breadth release clause 4 3 deed settlement release provided nothing deed way limit extinguishes nilant right apply cost certificate thefederal proceeding cost act 1981in respect federal court proceeding relating macchia 1991 bankruptcy mr macchia warranted clause 5 follows 5 1 macchia warrant apart asset described statutory declaration provided execution document asset fund pay meet cost may awarded nilant federal court proceeding relating arising macchia 1991 bankruptcy 5 2macchia acknowledges nilant insurer relied upon warranty entering deed 5 3macchia agrees provide current sworn statutory declaration setting asset liability execution document 19 warranty clause 5 1 affidavit mr macchia 20 may 2002 suggest deed release entered mr macchia would financial mean pay cost least large part 20 trustee submits circumstance would entitled seek cost certificate circumstance submitted right appellant apply cost certificate prejudiced deed release respondent would little fund remaining settlement amount received payment various cost incurred various proceeding took place supreme court federal court 21 grant cost certificate determined hypothetical consideration provision act grant certificate 7 act premised relevantly ground respondentis reason lack mean unable pay relevant cost part relevant cost accurate description present factual position say respondent unable pay relevant cost rather reason deed release position discharged obligation respect cost 22 notwithstanding reservation clause 4 3 deed concerning trustee right apply cost certificate necessary requirement grant certificate 7 absent 23 decline recommend sought application certify preceding twenty three 23 numbered paragraph true copy reason judgment herein honourable justice spender carr finn associate dated 19 may 2003the notice motion heard paperssolicitor applicant motion kott gunningthe respondent personally made written submissiondate order 19 may 2003 |
Ian Dykes Architects PL v City Port Phillip [1999] VCAT 1122 (30 June 1999).txt | ian dyke architect pl v city port phillip 1999 vcat 1122 30 june 1999 last updated 18 may 2000in victorian civil administrative tribunalplanning listno 1998 97257applicant review ian dyke architect pty ltdresponsible authority city port philliprespondents j p beilby or held melbournebefore gerard sharkey memberdate hearing thursday 27 may 1999date decisiondecision application review permit applicant allowed order tribunal decision responsible authority set aside permit granted accordance direction set ___________________g j sharkeymemberappearances mr j livingston planning advocate responsible authority mr j beilby mr p beilby respondent objector mr c bowden planning consultant bowden verhoeven planning development consultant applicant review permit applicant nature application reviewapplication undersection 77of theplanning environment act 1987 act reviewa decision refuseto grant permit proposalpermit application 0956 98 dalterations addition existing dwelling including additional level within part existing roof line landaddress250 beaconsfield parade middle park land area dimensionsfrontage 10 06 metre depth 56 89 metre area 572 3 sq metre planning scheme zoning overlay controlsport phillip planning scheme residential 1 zone heritage overlay design development overlay dd05 ground refusal1 proposed development excessive height detrimental affect amenity adjoining property regard visual bulk overlooking 2 proposed development contrary objective council municipal strategic statement term objective relating urban character volume building bulk heritage 3 proposed development fulfil objective design development overlay dd05 given harmony existing streetscape heritage characteristic ground application review1 proposed development adversely impact upon existing level amenity adjoining property 2 proposal consistent objective municipal strategic statement 3 proposed extension accordance planning scheme harmony streetscape heritage characteristic area backgroundthis application review decision responsible authority refuse grant permit alteration addition existing dwelling 250 beaconsfield parade middle park including additional level within part existing roof line subject site north east side beaconsfield parade nimmo street armstrong street immediately east beaconsfield parade double storey duplex styled apartment similar era presentation building subject site west single storey edwardian dwelling building subject site sound condition mr livingston written submission responsible authority said appears originally built current three storey rear subject site right way provides access rear subject site address number development fronting right way proposal construct additional floor level within part roof space existing building length 19 5m south elevation beaconsfield parade including balcony end extension extension existing apartment second floor level comprise three bedroom ensuite bathroom area approximately 77sqm rebuild balcony match existing landing east west elevation first second floor level provide glass brick west elevation replace existing window new window glazed door sidelight balcony beaconsfield parade elevation planning provisionsclause 21 municipal strategic statementclause 21 02 1 residential land useclause 21 02 2 foreshoreclause 21 02 3 neighbourhood character urban designclause 21 02 4 heritage conservationclause 22 local planning policiesclause 22 03 south melbourne albert park middle park neighbourhoodclause 22 01 residential 1 zoneclause 32 01 4 permit required construct two dwelling lot extend dwelling two dwelling lot clause 43 01 heritage overlayclause 43 01 1 permit required building work clause 43 02 design development overlaya permit required pursuant clause 43 02 2 building worksschedule 5 dd05 provides building work exceed preferred maximum building height specified table schedule table schedule 5 provides le 5 metre front boundary preferred maximum height 9 metre 5 metre front boundary 5 metre behind front wall whichever greater preferred maximum height 15 metre application may made vary preferred maximum building height application must accompanied site analysis descriptive statement otherthe port phillip heritage review incorporated document planning scheme subject building graded significant port phillip design manual reference document reason ordermr livingston said pertinent supply comment council heritage advisor relation application follows height bulk proposed height extension detrimental surroundings fenestration use vertically proportional window fenestration sill window west elevation delete glass block use appropriately proportional alternative material streetscapeok design element may need negotiated altered reduce width upper level wall line especially west elevation bedroom 1 could reduced width without detriment joint roof terrace roof bedroom 1 awkward wrong place move toward sea align balcony edge west elevation smaller bed 1 balcony could reduce detrimental affect roofscape considerably objection proposed extension subject requirement council heritage advisor incorporated condition permit issued heritage valueprior introduction new scheme adoption port phillip heritage review building site given grading b building adjoining site also predominantly graded b south melbourne conservation study stage heritage review provide accurate description significant building suffice say includes building knowledge recognition heritage study valued primarily resource policy south melbourne conservation study referred south melbourne conservation study state b graded building grade b structure integral historic nature area south melbourne form framework substantially intact building sound architectural property bearing maintaining historic character south melbourne essential heritage value suburb building stock streetscape none b graded building would however warrant individual listing historic building register section 8 conservation study outline guideline alteration addition existing building construction new residential building south melbourne objective guideline provide information assist carrying work designated urban conservation area following must taken consideration regard alteration existing residential building existing streetscape setting alteration existing dwelling relate existing building surrounding site area design consideration including scale form roof shape setback material adjacent building scale building generally relate predominate height building street height adjacent building sense port phillip design manual reference document new scheme provides relevant guide however matter proposal meet generally held heritage objective council view proposal meet commonly held objective virtue proposed dormer window introduces new contrasting element facade building reflected fenestration dormer evidence dormer window appropriate building introduction terrace reflective element building facade proposal highly visible number vantage point immediately recognisable contrasting element significantly graded building regard proposal approved stand encourage inappropriate alteration heritage building area mr livingston respondent objector also drew attention appeal 1997 72859r j mcintye others v city port phillipwhich appeal decision responsible authority grant permit alteration existing 6 unit flat development subject site development use additional flat mr gould allowed appeal directed permit granted mr gould said reason determination result inspection reading submission presented hearing believe objector appeal allowed reason set out1 density proposal already high 1 82m2 7 unit increase even 1 72 m2 increase accompanied concomitant increase open space car parking 2 onsite car parking virtually unusable present time believe development totalling eight unit permitted six available space particularly rather densely populated locality inspection noted vacant car space existed beaconsfield parade 4 30pm although available nimmo street 3 viewed mcintyre residence additional floor would high overbearing presence 4 lack open space exists site little amenity existing resident improved addition proposed seventh eighth flat also noted resolution appeal assisted lack information normally provided application kind mr beilby comment quoted set deficiency good detail summary objector appeal allowed directed permit issue mr livingston also made reference previous planning application planning permit mr bowden written submission applicant review permit applicant also made reference tor j mcintyre others v city port phillip discussing mr gould reason determination sought distinguish proposal subject determination subject proposal officer report said part advice proposal sought council heritage advisor made following comment reference application design development overlay site second part clause point conserving enhancing area area architectural historic significance encourage development keeping conserving significance whole building upgraded repaired even though altered enhancing 1 able say proposal fit character area dramatically detract character significance building keeping clause requires 1 consider proposal meet requirement view council heritage advisor comment proposed alteration existing building intent design development overlay proposed alteration existing building includes exceeding height limit 9m considered satisfactory light urban conservation objective achieved particularly conserve enhance area architectural historic significance encourage development keeping reason proposed alteration existing building supported various division tribunal confirmed officer report relevant matter tribunal consider although course responsible authority bound recommendation officer report seemodern living design construction pty ltd v city box hill1 aatr 166 consider subject proposal distinguished fromr j mcintyre others v city port phillipfor following reason 1 density change 2 car parking intended provided subject site made useable 3 proposal extend total length building addition extends front building length 19 5 metre 4 additional 25 square metre open space provided mr bowden said written submission applicant review permit applicant overall development provide attractive living environment present state clearly make positive contribution urban conservation significance area visual amenity area provide satisfactory standard accommodation existing future resident also follows existing development make positive contribution amenity adjoining property present condition appearance street remain basically unaltered except introduction new dormer window alteration proposed roof line facing street major portion third floor addition located behind existing roof ridge fine development extend length approximately 12 metre behind ridge line addition extension set back east west boundary constructed partly within existing roof space ensure visually intrusive viewed nearby property importantly section behind ridge line visible beaconsfield parade roof proposed extension match existing development term profile slope material building material window treatment balcony finish consistent existing development height development along beaconsfield parade controlled design development overlay 5 dd05 specifies preferred maximum height 9 metre first 5 metre front boundary area beyond 5 metre front facade preferred maximum height 15 metre current proposal marginally outside preferred maximum height two area ie new dormer window third floor level facing street small section roof third floor level behind existing roof ridge also relevant existing roof space along beaconsfield parade frontage site preferred 9 metre maximum height accept view heritage advisor comment officer report view also accept assessment mr bowden proposal satisfactory term neighbourhood character consider increase height preferred 9 metre maximum height acceptable context overall consider proposal commendable attempt upgrade building historic character provide demand modern living without compromising historic value building surround respecting character neighbourhood therefore come conclusion regard put relevant planning provision application review allowed permit granted subject appropriate condition directionthe responsible authority directed provision ofsection 85 1 b ii theplanning environment act1987 |
BUY15 v Minister for Immigration and Border Protection [2017] FCA 22 (31 January 2017).txt | buy15 v minister immigration border protection 2017 fca 22 31 january 2017 last updated 31 january 2017federal court australiabuy15 v minister immigration border protection 2017 fca 22appeal buy15 v minister immigration anor 2016 fcca 1736file number nsd 1305 2016judge gleeson jdate judgment 31 january 2017catchwords migration appeal decision federal circuit court australia appellable error identified decision appeal dismissedcases cited appellant s395 2002 v minister immigration multicultural affair 2003 hca 71 216 clr 473green v sommerville 1979 hca 60 1979 141 clr 594khan v minister immigration ethnic affair 1987 fca 457 1987 14 ald 291minister immigration citizenship v li 2013 hca 18 2013 249 clr 332minister immigration citizenship v szmds 2010 hca 16 2010 240 clr 611minister immigration local government ethnic affair v batey 1993 fca 75 1993 40 fcr 493szatv v minister immigration citizenship 2007 hca 40 2007 233 clr 18water board v moustakas 1988 hca 12 1988 180 clr 491date hearing 21 november 2016registry new south walesdivision general divisionnational practice area administrative constitutional law human rightscategory catchwordsnumber paragraph 68counsel appellant mr j williamssolicitor respondent m burnett clayton utzordersnsd 1305 2016between buy15appellantand minister immigration border protectionfirst respondentadministrative appeal tribunalsecond respondentjudge gleeson jdate order 31 january 2017the court order appeal dismissed appellant pay first respondent cost appeal note entry order dealt rule 39 32 thefederal court rule 2011 reason judgmentgleeson j appellant appealed decision judge federal circuit court australia fcca dismissing appellant application judicial review decision administrative appeal tribunal tribunal buy15 v minister immigration anor 2016 fcca 1736 tribunal decision affirm decision delegate minister immigration border protection minister grant appellant protection class xa visa protection visa background factsthe appellant male citizen pakistan aged 26 arrived australia 9 august 2012 lodged application protection visa 29 november 2012 appellant claimed fear persecution harm taliban returned pakistan shia muslim father worked border militia fcca judge noted 2 honour reason appellant accepted following summary tribunal claim made support protection visa application accurate summary according application applicant ethnic pashtun shia muslim parachinar 11 year education completed year 10 matriculation 2007 fear killed taliban shia muslim father worked border militia applicant claimed father worked border militia killed 2009 applicant home fired 2010 cousin lost leg landmine farm applicant market suicide bomb attack 2012 claimed possible live safely sunni area pakistan lived life kurram agency family member outside kurram agency unable relocate summary agent submitted applicant well founded fear persecution harm due shia muslim religion direct descendant prophet mohammed sayed person bangash ethnicity imputed political opinion anti taliban circumstance father long term member border militia killed targeted attack 2009 familial connection shia muslim originates kurram agency hearing agent also submitted applicant fear stemmed membership particular social group shia muslim parachinar strong accent anti taliban opinion shia name delegate refused grant protection visa 27 march 2014 3 april 2014 appellant sought review delegate decision tribunal 13 may 2015 tribunal conducted hearing attended appellant appellant registered migration agent pashto pushtu interpreter 11 august 2015 tribunal affirmed delegate decision tribunal reasonson appeal main complaint made behalf appellant tribunal conclusion adverse appellant unreasonable light tribunal finding para 37 decision record tribunal accepted real chance appellant would face serious harm upon return parachinar tribunal also accepted significant essential reason would appellant pashtun shia muslim imputed political opinion anti taliban para 38 decision record tribunal considered whether would reasonable appellant relocate another part pakistan para 42 decision record tribunal identified lahore possibly islamabad location pakistan appellant may able relocate avoid persecution para 48 decision record tribunal accepted appellant would identified throughout pakistan bangash shia parachinar tribunal accepted bangash shia home region appellant would imputed political opinion opposed taliban sunni extremist tribunal found para 54 decision record taliban located primarily within federally administered tribunal area fata report indicated taliban capable reaching target lahore tribunal stated regard report punjab police force appease sunni militant group lashkar e jhangvi sunni militant group act impunity considering possibility appellant relocating lahore para 61 decision record tribunal found appellant likely risk shia attends religious procession location large number shia gather risk tribunal found attack taken place lahore sporadic declined considered context size shia population state protection offered tribunal regard risk applicant suffering serious harm ground remote paragraph 62 decision record state given relatively low level sectarian violence lahore applicant lack particular profile taliban associated extremist group combined large number shia muslim pakistan urban area including lahore dfat assessment lahore remains relatively free threat militant sectarian politically motivated violence tribunal satisfied chance applicant harmed act targeted sectarian generalised violence lahore remote tribunal also satisfied applicant modify religious practise order avoid harm fear para 63 decision record tribunal found chance applicant harmed attack lahore travelling lahore remote therefore real chance counsel appellant mr williams drew attention para 67 68 decision record state 67 applicant claimed cannot speak punjabi would mute sunni parachinar inform sunni left parachinar find lahore would able get job make living 68 tribunal mindful applicant face difficulty relocating lahore finding work accommodation tribunal accepts may take applicant time establish term employment high level unemployment throughout pakistan however applicant young single male attended high school worked family farm business tractor driver found employment australia applicant may speak punjabi tribunal accept mute urdu taught school national language pakistan 8 population speak urdu first language second language people larger city lahore speak urdu county information 37 per cent enrol secondary education ten per cent tertiary education applicant shown resourceful past finding employment new place past work experience skill pakistan australia assist relocation found work provided mother sibling living australia adapted new environment language given education experience skill past resourcefulness tribunal accept would able get job make living get accommodation tribunal satisfied applicant would able settle different city country least familiar social custom various factor enable integrate pakistan society tribunal accept find work accommodation new unfamiliar place like lahore unreasonable footnote omitted paragraph 70 decision record record dfat note many large urban area lahore home mixed community offer greater opportunity employment access service higher level protection dfat also note pakistan size diversity internal relocation offer degree anonymity opportunity seek refuge discrimination violence evidence people home area tribe specifically targeted lahore tribunal accept face harm ethnic group hazaras sunni parachinar identified bangash shia outsider footnote omitted mr williams also drew attention para 71 decision record follows tribunal accepts continue practise shia religion attend mosque procession tribunal accepts applicant family name attendance shia mosque make readily identifiable shia however considering attendance yearly procession given size yearly frequency procession violence mitigated significant effort authority protect processional route dfat ass overall risk low basis evidence country information referred tribunal accept applicant face appreciable risk harm tribunal accept level risk attack lej taliban extremist group sunni ethnic group make unreasonable applicant relocate lahore evidence tribunal find even regard applicant religious practice circumstance sectarian violence reasonable relocate lahore footnote omitted para 72 decision record tribunal considered evidence attack shia population lahore concluded given sporadic nature level incident applicant circumstance tribunal accept appreciable risk harm applicant lahore para 73 74 decision record tribunal stated 73 tribunal accepts concerning applicant live city experienced sectarian terrorist incident tribunal accept fact applicant may concerned safety result violence attack extent modify conduct affect ability obtain employment accommodation practice religion lahore tribunal satisfied factor make reasonable applicant live work lahore 74 even regard country information lahore violence attack applicant circumstance including education work prospect language religion past harm tribunal find would reasonable applicant relocate lahore para 75 decision record tribunal concluded reason given tribunal considers reasonable sense practicable regard applicant circumstance relocate lahore essence tribunal satisfied reasonable appellant relocate lahore appreciable risk harm none particular circumstance appellant identified led conclusion reasonable relocate lahore application fccaon 7 september 2015 appellant applied fcca judicial review tribunal decision amended application filed 3 november 2015 fcca conducted hearing 21 june 2016 hearing appellant relied solely ground 3 amended application ground 3 following term ground 3 jurisdictional error law misapplication law failure ask correct questionthe tribunal erred misinterpreting misunderstanding misapplying applicable law otherwise failed ask correct question accepted applicant well founded fear persecuted convention complementary reason returned parachinar pakistan objectively appreciable risk feared persecution occurring applicant relocated lahore alternatively unreasonable sense practicable expect applicant relocated lahore regard particular circumstance applicant b circumstance applicant would reasonably expected face place relocation c impact applicant relocated lahore appeal courtthe notice appeal contains following single ground appeal regard ground three amended application filed 3 november 2015 primary judge erred misinterpreting misunderstanding misapplying applicable law otherwise failed ask correct question regard relocation appellant parachinar lahore pakistan particularsthe tribunal erred 71 decision record finding tribunal accept applicant face appreciable risk harm relocating lahore parachinar pakistan alternatively tribunal erred 75 decision record finding reasonable sense practicable regard applicant circumstance relocate lahore primary judge therefore erred 14 judgment finding two part ground first assertion appreciable risk harm lahore seen amount attack merit finding fact made tribunal second unreasonable expect applicant relocate lahore put way another assertion fact raise jurisdictional error legal principlesthe appellant referred decision high court inszatv v minister immigration citizenship 2007 hca 40 2007 233 clr 18 szatv 19 22 gummow hayne crennan jj said 19 seen matter relocation find place convention definition process reasoning adopted lord bingham cornhill injanuzi v secretary state home department lordship said convention expressly address situation issue appeal within country nationality person well founded fear persecution place lived place b said could reasonably expected relocate situation may fairly said covered causative condition reference made person outside country nationality chosen leave country seek asylum foreign country rather move place relocation within country could well founded fear persecution protection country would available could reasonably expected relocate properly said outside country nationality owing well founded fear persecuted convention reason 20 reference passage unavailability protection country nationality refugee best understood referring phrase protection country second limb definition broader sense term identified inrespondents s152 2003 international responsibility country nationality safeguard fundamental right freedom national 21 lord bingham went injanuzito refer statement unhcr handbook 91 fear persecuted need always extend thewholeterritory refugee country nationality thus ethnic clash case grave disturbance involving civil war condition persecution specific ethnic national group may occur one part country situation person excluded refugee status merely could sought refuge another part country circumstance would reasonable expect 22 lordship significantly forjanuziand present appeal court added corollary proposition accepted person excluded refugee status circumstance would reasonable expect seek refuge another part country footnote omitted 23 24 honour concluded applicable test whether reasonable sense practicable applicant relocate region objectively appreciable risk occurrence feared persecution taking account reasonable sense practicable must depend upon particular circumstance applicant considerationmr williams made criticism fcca judge summary tribunal reason 5 12 honour judgment notice appealthe single ground appeal set 22 although particular c particular appellant ground appeal expressed conclusion premise stated particular b conclusion follow matter logic particular c record 1 fcca judge analysis 14 honour reason ground judicial review argued honour 2 fcca judge summary conclusion ground judicial review raise possible jurisdictional error question fact accept fcca judge made error asserted particular c contrary fcca judge accurately analysed ground review passage set particular c appears comparison ground review set 21 word quoted particular c appears particular appellant plainly sought challenge continues appeal challenge tribunal factual finding appellant face appreciable risk harm relocating lahore similarly appears particular b appellant seeking challenge continues appeal challenge tribunal factual finding reasonable sense practicable appellant relocate lahore matter particularised notice appeal without reveal misinterpretation misunderstanding misapplication applicable law fcca judge reveal fcca judge failed ask correct question regard relocation appellant parachinar lahore pakistan follows appellant case identified notice appeal must fail written submissionseven considered whether written submission disclose appellable error part fcca judge risk harm lahorethe written submission asserted tribunal erred para 63 decision record finding chance appellant harmed act targeted sectarian generalised violence lahore remote therefore real chance submission continued however 61 tribunal accepted appellant likely risk shia attends religious procession location large number shia gather light foregoing accepted appellant well founded fear persecuted convention complementary reason returned parachinar pakistan objectively appreciable risk feared persecution occurring applicant relocated lahore understand submission tribunal found remote chance harm lahore therefore 1 illogical tribunal found real chance harm 2 matter logic tribunal driven conclusion appreciable risk feared persecution lahore accept submission describing relevant risk remote tribunal conveying view risk real risk use language perfectly apt meaning word remote real explained full court inminister immigration local government ethnic affair v batey 1993 fca 75 batey 19 20 follows 19 decision inchan v minister immigration ethnic affair 1989 169 clr 379 andboughey v queen 1986 161 clr 10 demonstrate matter usage word real used adjective describe chance risk mean chance event happening risk becoming reality remote even though chance risk le 50 percent remote context mean something extremely unlikely occur use word real context quantitative assessment chance risk decision inchanandbougheymean context enactment considered chance event occurring assessed quantitative sense substantial remote even though chance may le 50 percent however neither meaning word real used describe chance risk requirement law requires real risk real chance assessed solely quantitative basis 20 word real may used describe qualitative nature risk chance sense used describe something far fetched fanciful tribunal reason reveal tribunal assessed relevant risk remote real sensible distinction draw consistent meaning word explained inbatey found relevant risk remote logical basis tribunal driven conclusion appreciable risk contrary tribunal driven opposite conclusion alternatively mr williams may intending submit tribunal found risk harm greater remote submission disclose jurisdictional error tribunal attack tribunal finding fact para 62 decision record set 11 consequently error part fcca judge consideration aspect appellant application judicial review particular fcca judge conclusion 44 honour reason appellant real complaint different factual finding ought made reasonableness relocation lahorethe written submission record various claim made appellant recorded tribunal circumstance would make unreasonable relocate lahore written submission argue finding identity document family name one would readily identify applicant shia attack shia mosque applicant risk shia attends religious procession country information indicates targeting shia group sunni extremist difficult applicant find accommodation employment lahore tribunal erred finding reasonable applicant relocate lahore misapplied applicable law failed ask correct question submission identify part tribunal reason said misapplied applicable law written submission next contend absent tribunal reason decision evidence asked relocation principle required ask whether reasonable sense practicable expect applicant relocate lahore regard fact circumstance applicant would reasonably expected face lahore would include asserted practical reality failing ask question tribunal conclusion reasonable applicant relocate lahore arrived result jurisdictional error tribunal ask whether regard asserted practical reality reasonable expect applicant relocate lahore consider personal circumstance applicant relevant determining reasonableness applicant relocating lahore however tribunal addressed correctly relevant law para 39 40 decision record said 39 well settled focus convention definition upon protection country nationality might able provide particular region upon general notion protection country randhawa v milgea 1994 fca 1253 1994 52 fcr 437per black cj 440 1 depending upon circumstance particular case may reasonable person relocate country nationality former habitual residence region objectively appreciable risk occurrence feared persecution 40 thus person excluded refugee status reasonable circumstance sense practicable expect seek refuge another part country reasonable depend upon particular circumstance applicant impact relocation upon person within person country however whether relocation reasonable judged considering whether quality life place relocation meet basic norm civil political socio economic right convention concerned persecution defined sense living condition broader sense footnote omitted asserted practical reality identified tribunal decision record nothing tribunal decision record indicate tribunal failed ask question identified appellant written submission contrary para 75 decision record tribunal explicitly said regard appellant circumstance reaching view reasonable appellant relocate lahore written submission identify appellable error part fcca judge consideration aspect appellant application judicial review requirement act reasonably appellant submitted relevant difference error identified inappellant s395 2002 v minister immigration multicultural affair 2003 hca 71 216 clr 473 s395 paraphrased requirement applicant act reasonably behaving discreetly homosexual bangladesh requirement case appellant act reasonably relocating another part pakistan avoid upsetting persecutor contention addressed fcca judge clear whether argument raised generally party litigation cannot raise point first time upon appeal could met calling evidence water board v moustakas 1988 hca 12 1988 180 clr 491per mason cj wilson brennan dawson jj 13 note court may find expedient interest justice allow point raised fact established beyond controversy point one construction law seegreen v sommerville 1979 hca 60 1979 141 clr 594per mason j murphy aickin jj agreeing 22 however consider case contention merit contention inconsistent principle identified inszatv relevant consider whether applicant could reasonably expected relocate within country nationality test ins395is directed different question namely assessment whether claimant well founded fear persecution case plurality held asylum seeker required take reasonable step avoid persecutory harm 40 50 per mchugh kirby jj 78 83 per gummow hayne jj suggestion appellant would required take step avoid real risk persecutory harm event relocated lahore accordingly aspect appellant argument reveal appellable error oral submissionsthe appellant oral submission departed substantially notice appeal written submission particular mr williams made submission reference concept legal unreasonableness primary argument fcca judge wrongly characterised appellant case attack upon merit rather legality tribunal decision mr williams went asserted obvious judicial system rubberstamp tribunal decision identified nothing decision fcca judge indicate tribunal decision rubberstamped submission made understood mr williams referring principle explained crennan bell jj inminister immigration citizenship v szmds 2010 hca 16 2010 240 clr 611at 130 135 follows 130 illogicality irrationality sufficient give rise jurisdictional error must mean decision tribunal came relation state satisfaction required 65 one rational logical decision maker could arrive evidence word accepting sake argument allegation illogicality irrationality provides distinct basis seeking judicial review decision jurisdictional fact nevertheless allegation order complaint decision clearly unjust arbitrary capricious unreasonable sense state satisfaction mandated statute import requirement opinion state satisfaction must one could formed reasonable person applies case opinion mandated state satisfaction reached every lapse logic give rise jurisdictional error court slow although unwilling interfere appropriate case 135 whilst may variety illogicality irrationality decision illogical irrational room logical rational person reach decision material decision maker decision might said illogical irrational one conclusion open evidence decision maker come conclusion decision decision maker came simply open evidence logical connection evidence inference conclusion drawn mr williams also referred tominister immigration citizenship v li 2013 hca 18 2013 249 clr 332 76 hayne kiefel bell jj stated unreasonableness conclusion may applied decision lack evident intelligible justification mr williams complained fcca judge found 15 ground 3 raise unreasonableness ground reject complaint nothing ground 3 articulates alleged jurisdictional error involving unreasonableness mr williams also contended fcca judge wrong making following statement 17 counsel applicant argued legal unreasonableness essential part relocation principle essential element must reasonable expect putative refugee relocate another area country nationality residence view argument exemplifies risk approaching judicial review reference category catchword without proper understanding underlying legal concept reject mr williams contention submission made counsel applicant recorded fcca judge intelligible legal unreasonableness concept describes various legal error including error fact finding part relocation principle relevance decision reasonableness relocation arise fact decision decision reasonable given circumstance finding risk harm appellant lahore remote supported finding set para 62 63 tribunal decision record 11 12 tribunal finding particularly para 37 48 54 53 61 71 require tribunal come different conclusion paragraph 37 concerned position outside lahore finding para 48 54 61 71 taken highest compel tribunal different assessment risk harm appellant lahore contention mr williams made orally tribunal fact finding logical evidentiary basis set notice appeal event contention must fail reason set 63 base finding reasonable appellant locate lahore set 13 17 difficulty tribunal recognised detract conclusion open tribunal relocation lahore reasonable option reason tribunal gave including without exhaustive appellant situation young single male high school education work experience extent capacity communicate urdu appellant resourcefulness finding employment new place past finally mr williams submitted tribunal give genuine proper consideration appellant claim referring decision gummow j inkhan v minister immigration ethnic affair 1987 fca 457 1987 14 ald 291 khan inkhan gummow j identified passage record decision revealed failure part decision maker give proper genuine realistic consideration merit application decision maker argument raised fcca judge event formulation complaint tribunal made finding said inconsistent ultimate finding appellant reason explained accept decision record reveals relevant inconsistency conclusionthe appeal must dismissed certify preceding sixty eight 68 numbered paragraph true copy reason judgment herein honourable justice gleeson associate dated 31 january 2017 |
Review Applicant: Mr Semisi Vulivosa IRT Reference: N96_00577 #number 8934 [1997] IRTA 8934 (28 February 1997).txt | review applicant mr semisi vulivosa irt reference n96 00577 number 8934 1997 irta 8934 28 february 1997 immigration review tribunalstatement decision reason decisionirt decision n96 00577 8934 docreview applicant mr semisi vulivosatribunal mary lindsaypresiding memberdate 28 february 1997place sydneydecision tribunal jurisdiction review application reason decisionthis application review made 1 march 1996 application made mr semisi vulivosa applicant respect decision department immigration ethnic affair department refuse grant class 816 818 entry permit backgroundthe applicant semisi vulivosa born 25 february 1953 fiji arrived australia visitor 8 november 1983 upon expiry entry permit mr vulivosa became illegal entrant granted bridging visa c 1 november 1995 department issuethe threshold issue case whether immigration review tribunal jurisdiction review decision given application review tribunal face appears lodged outside prescribed time limit legislative provisionsthemigration reform actcame force 1 september 1994 division 2 ofpart 2of themigration act 1958 act force 1 september 1994 relates substantive question grant refusal visa regulation made purpose division continue apply visa applicant application part 5of amended act deal review decision following provision found inpart 5of amended act 347 1 application review irt reviewable decision must made approved form b given tribunal within prescribed period period ending later primary decision covered paragraph b c definition ofpart 5reviewable decision 28 day notification irt reviewable decision ii primary decision covered paragraph e f g h definition 70 day notification irt reviewable decision c accompanied prescribed fee included definition ofpart 5reviewable decisionat paragraph decision refuse grant non citizen visa visa could granted non citizen migration zone ii non citizen made application visa migration zone iii decision made non citizen immigration clearance b refused immigration clearance subsequently immigration cleared prescribed inregulation 4 10 time limit lodgement application review tribunal case primary decision present kind 28 day notification irt reviewable decision amended act part deal specifically code procedure dealing fairly efficiently quickly visa application subdivision ab division 3 ofpart 2 code procedure applies review application made 1 september 1994 reg 26 migration reform transitional provision 1994 included subdivision provision provides part follows 53 1 visa applicant tell minister address applicant intends live application dealt 2 applicant proposes change address intends live least 14 day applicant must tell minister address period proposed residence 3 minister sends leaf notification applicant address applicant given subsection 1 2 notification taken received applicant even received 4 applicant may tell minister specified person specified address may given notification applicant application 6 minister given name address person subsection 4 minister must give notification applicant giving person address notification given taken received applicant migration regulation 1994 provide relation receipt document sent place australia address australia minister tribunal taken received 7 day date letter regulation 5 03 therefore practice time limit 28 day plus 7 day 35 day evidencethe tribunal gave consideration documentation submitted part application matter also available departmental file forwarded required act hearing convened 10 january 1997 applicant gave sworn evidence applicant spouse attend hearing preliminary issue determined tribunal matter whether application lodged 1 march 1996 valid within prescribed time limit review evidence relevant issue summarised follows applicant sent letter dated 24 january 1995 miro certified mail home address 3 16 kathleen street lakemba address given applicant dealing department tribunal address mr vulivosa gave review application tribunal letter 24 january 1996 stated part carefully considered application decided affirm original decision mean review application successful reason making decision attached letter decision also includes people application decision may reviewable immigration review tribunal irt decide seek review must make application registry irt within 35 day date letter enclosed leaflet provides information review irt including address make application require information review irt contact one registry listed leaflet 3rd floor 44 market street sydney 2000 tel 02 290 7222 application review tribunal mr vulivosa stated date letter advising miro decision 24 january 1996 summary conclusionthe tribunal find letter dated 24 january 1996 sent post address provided applicant application review received mr vulivosa tribunal view letter notification applicant address applicant given required subsection 53 1 themigration act evidence tribunal letter received mr vulivosa indeed state application review tribunal date letter advising miro decision 24 january 1996 miro letter applicant dated 24 january 1996 notified time limit seek review within 35 day date letter matter tribunal find 35 day 24 january 1996 end 28 february 1996 evidence clearly show mr vulivosa apply tribunal 1 march 1996 29 day february 1996 therefore time two day accordingly tribunal find application review received within prescribed time limit therefore tribunal power review application need tribunal proceed consider application merit tribunal note however carefully considering evidence regarding class 816 application mr vulivosa spouse failed satisfy subclauses 816 721 2 816721 3 regard qualification work experience enrolment accredited course business interest failed satisfy important criterion follows even application found received within prescribed time limit tribunal would option reject class 816 818 application decisionthe tribunal jurisdiction review application certify 5 preceding page true copy decision reason decision tribunal dated 28 february 1997 deputy registrar |
Skrijel v Mengler [2003] VSC 18 (7 February 2003).txt | skrijel v mengler 2003 vsc 18 7 february 2003 last updated 19 march 2003in supreme court victorianot restrictedat melbournecommon law divisionno 5446 of1993mehmed skrijelplaintiffvjohn carl menglerfirstnamed defendantcommonwealth australiasecondnamed defendantgary weston cookthirdnamed defendantstate victoriafourthnamed defendant judge nettle jwhere held melbournedate hearing 7 february 2003date ruling 7 february 2003case may cited skrijel v mengler orsmedium neutral citation 2003 vsc18 appearance counselsolicitorsfor theplaintiffbasil nurendinifor firstnameddefendantmr tovey qcwith mr p marzellahardham dalton sunbergfor secondnamed defendantmr b walter scwith mr k muelleraustralian government solicitorsfor thirdnamed defendantmr j santamaria qcwith mr gindbergvictorian government solicitorsfor fourthnamed defendantmr r gippebsworth ebsworthhis honour writ action filed 1993 history litigation long chequered time proceeding fixed trial begin next monday 10 february 2003 yesterday notice given solicitor plaintiff intention apply today adjournment trial period two month today summons filed order formalise application solicitor plaintiff sworn affidavit support application deposes although briefed barrister counsel last year barrister devoted month january preparation trial plaintiff week given instruction writing plaintiff want barrister longer retained behalf plaintiff moreover solicitor say reason given plaintiff solicitor would embarrassed continuing act solicitor application adjournment opposed defendant plaintiff solicitor cross examined affidavit senior counsel first defendant also benefit detailed submission adjournment ought allowed one allowed brief period short submission highly probable certain application adjournment made good faith rather instance conduct sort previously engaged plaintiff litigation related litigation whereby good reason last minute plaintiff withdraws instruction given legal adviser ostensibly basis considers acting interest otherwise sort conspiracy harm also submitted behalf defendant evidence show least make highly probable plaintiff indigent reason would unlikely retain counsel even adjournment granted additionally said age litigation matter subject litigation occurred 17 year ago delay regarded intolerable course cross examination solicitor produced letter plaintiff dated 6 february 2003 plaintiff wrote follows refer meeting last december assured barrister would devoting whole january proceeding listed hearing next monday 9 february 2003 basis assurance borrowed 30 000 using home collateral paid sum barrister 19 december 2002 undertook return prepare case trial confer frequently mr berthelsen preparation notwithstanding numerous reminder one brief meeting barrister january meeting 28 january barrister waved front document said evidence performance contract confer sense word second meeting yesterday approximately 2 50 pm attended barrister mr berthelsen barrister revealed appalling ignorance basic fact case example wasted least 20 minute trying convince barrister jury discharged locked cell rear court brief conversation counsel consented hearing summary offence possession shortened firearm county court b instructed counsel enter guilty respect summary offence c counsel returned court heard cell door enter guilty plea personally asked court plead defence counsel entered guilty plea evidence relation summary offence put court barrister asked mr berthelsen fact intended put judge support malice element cause action malicious prosecution first third defendant barrister appeared clueless clear indication barrister totally unprepared present case monday allowed continue represent judge hearing preliminary argument would probably find case first defendant third problem barrister seemed find inconceivable mr berthelsen direct attention relevant fact example oblivious fact document comprehensive summary evidence delivered two week ago already delivered december 2002 incorporated document 18 court book submission 19 circumstance confidence barrister would give competent reliable representation trial listed hearing next monday would please inform court today barrister longer representing seek adjournment trial two month order seek legal advice option undertake task clearly beyond barrister reason seeking adjournment 2 month without 30 000 given barrister expect considerable difficulty finding barrister competent honest job much smaller retainer offer another barrister briefed require time prepare confer given list document third defendant intends rely trial last tuesday considerable number document never discovered others almost illegible many believe exist included list discovered many sufficiently identified many serious implication proceeding need studied carefully please ask barrister return document immediately answer questioning solicitor deposed received letter conferred plaintiff plaintiff expressed view barrister somehow improperly involved party side litigation thus working interest plaintiff take starting point application principle adjournment ordinarily allowed necessary interest justice 1 exceptional case party conduct fact refusal adjournment may result le adequate time prepare case sufficient reason allow adjournment sought 2 regard submission made mr tovey qc behalf first defendant supported counsel behalf defendant content letter 6 february 2003 set oral evidence given plaintiff solicitor cross examination doubt plaintiff reason lately wishing dismiss counsel satisfactory basis upon grant adjournment sought hand apart history discontent legal adviser protracted history proceeding preceded nothing directly reflects upon honesty plaintiff belief counsel retained given sufficient time preparation case adequately represent plaintiff conceives interest position say anything reasonableness belief consequently present advised unable conclude plaintiff honestly believe necessary adjournment counsel retained counsel retained preparation possible made represent plaintiff trial persuaded evidence put application lack bona fides plaintiff conduct shown otherwise disentitle adjournment sought persuaded however would unjust defendant therefore unacceptable allow matter adjourned considerable period among reason unless matter come trial within next two week volume business court probability matter listed trial many many month course cross examination solicitor plaintiff deposed matter much prepared point application adjournment granted would position within space approximately half day provide plaintiff plaintiff new representative copy complete opening proof submission think counsel retained able adequately prepare case trial within space next fortnight even though may prove extremely demanding task satisfied plaintiff application lack bona fides see interest defendant unduly prejudiced matter adjourned period two week appears adjournment two week would real utility plaintiff disposed allow adjournment fortnight subject anything counsel may say propose order trial adjourned 24 february 10 30 plaintiff pay cost thrown away defendant reason adjournment 1 queensland v jl holding pty ltd 1997 hca 1 1997 189 clr 146at 154 2 frawley v r 1993 69 c r 208 r v osborne 2002 vsca 156at 14 |
North v Marina [2003] NSWSC 64 (3 March 2003).txt | north v marina 2003 nswsc 64 3 march 2003 last updated 3 march 2003new south wale supreme courtcitation north v marina 2003 nswsc 64current jurisdiction equityfile number 6024 01hearing date 4 2 03 7 2 03judgment date 03 03 2003parties marie louise north plaintiffdoru marina defendantjudgment campbell jlower court jurisdiction applicablelower court file number applicablelower court judicial officer applicablecounsel r j weber sc p w gray plaintiffn perram defendantsolicitors stephen blank associate plaintifflanderer company defendantcatchwords contract general contractual principle construction interpretation contract general principle application general principle construction document containing plan contra proferentem rule real property easement grant section 88kconveyancing act 1919 payment compensationacts cited conveyancing act 1919encroachment building act 1922real property act 1900decision party bring short minutesjudgment supreme courtof new south walesequity divisionequity listcampbell j3 march 20036024 01 marie louise north v doru marinajudgmenthis honour background dispute1 dispute neighbour concerning structure lie near boundary property plaintiff m north registered proprietor land known 2 hargrave street paddington title land thereal property act 1900 title reference folio 45 4 180 defendant mr marina registered proprietor adjoining property known 4 hargrave street paddington title also thereal property act 1900 title reference folio 46 4 180 2 two lot lie northern side hargrave street lane hargrave lane run parallel hargrave street property lie southern side hargrave lane lot frontage little 6 metre hargrave street depth approximately 32 metre suspect size frontage arises fact 20 foot imperial measurement equal 6 096 metre orientation block longer side run approximately 30 east north however ease exposition henceforth speak though longer side two block ran north south direction 3 two block created plan subdivision underwood estate paddington made 1875 two lot developed terrace rather built different time 4 2 erected hargrave street frontage dwelling three storey hargrave street one enters dwelling middle level sometimes referred upper ground floor set timber stair lead lower ground floor lower ground floor located one move back hargrave street hargrave lane kitchen dining room living room stair take one lower level stair involve walker travelling squared u shape getting upper ground floor lower ground floor base squared u lie hard eastern wall living room 5 wall kitchen dining room rough hewn stone part original structure erected 2 living room part later addition constructed 1977 eastern wall consisting rendered brick roof living room supported metal beam run east west direction protruding living room eastern wall immediately north space occupied stair brick pier support end one beam floor living room tiled white tile 6 built diagonally across northeastern corner living room stone wall fireplace constructed 7 northerly wall living room glass door occupy virtually western part lead patio eastern end brick wall run east west direction small laundry toilet lie northern side part north wall living room lie behind diagonal wall fireplace constructed floor laundry toilet tiled feature described illustrated measured drawing made january 2001 mr peter scott architect annexed reason judgment 8 top storey 2 also later addition part upper ground storey top storey abutting wall building built 4 clad exterior material called hardiplank moulded look like weatherboard common ground cladding encroaches onto land 4 several centimetre precise extent encroachment depends upon precise location boundary 2 4 matter concerning various different opinion expressed 9 4 constructed three storey dwelling built late 19th century dwelling also one entered middle level hargrave street prior december 2001 rear dwelling ran along western side 4 two single storey structure southern structure called service wing western wall made brick 10 november 2000 mr marina commenced major renovation reconstruction work 4 plan work included substantial renovation main dwelling 4 also demolition single storey structure ran along western side 4 construction structure called pavilion freestanding main house occupy practical purpose entire width block 11 29 november 2000 demolition single storey structure 4 underway builder carrying demolition removed one skin brick double brick wall formed western side service wing building builder attempted remove brick second skin brick wall found revealed part interior lower ground level 2 12 interior 2 exposed two area small hole laundry thin layer rendering brick remained brick removed thin layer rendering hole broken one place larger hole beside fireplace living room 13 later examination shown section wall dividing 2 4 constructed building two single skin brick abutting tied known flemish bonding bonding method involves laying three row brick stretcher oriented direction wall single row brick header laid right angle stretcher span two skin brick making wall brick particular wall soft non machine made brick laid lime mortar 1905 building method changed invention cavity brick method construction wall invention brick tie 1910 cavity brick method construction almost universally adopted builder sydney including paddington thus wall question likely erected prior 1910 evidence suggests wall question erected many year prior 1910 precise length time matter living room extension 2 constructed 1977 western face wall used eastern wall new living room 2 14 december 2000 2 tenanted m north living overseas 7 december 2000 travelled australia informed letting agent property living room wall 2 pulled construction work next door 15 8 december 2000 m north inspected 2 company luke oldfield officer woollahra council course inspection mr oldfield told mr marina stop demolition wall hoard 16 21 december 2000 meeting council chamber owner 2 4 present solicitor possible solution problem damaged wall discussed council file memorandum record decided council satisfied survey information appeared differ surveyor surveyor know clear boundary would require boundary redefinition land title office meeting concluded council requested party submit cross section possible solution incorporating agreed boundary council advised party mutual agreement found order avoid legal battle 17 21 december 2000 meeting took place 2 4 attended m north husband defendant mr oldfield mr daintry woollahra council solicitor m north mr marina mr peter scott mr scott architect engaged m north meeting 21 december 2000 mr daintry expressed opinion wall would need demolished rebuilt could safely repaired mr scott expressed agreement view course meeting mr daintry enquired mr scott whether would possible rebuild wall onto 2 mr scott said anything possible would expensive number item inside 2 structural would altered staircase stone fireplace tiled floor brick pier also said rebuilding wall onto 2 would also make space available staircase small proper access mr daintry expressed agreement view put forward number option rebuilding wall mr marina agree time option 18 meeting 21 december 2000 mr daintry produced plan preferred option rebuilding wall plan came made available mr scott solicitor m north mr marina without going detail proposed constructing single skin brick wall approximately location wall breached location mr daintry understood plan produced showed would involved boundary line 2 4 passing single brick wall easement support granted relation portion brick wall lay either side boundary line double brick wall constructed mr marina land roughly quite parallel new single skin brick wall 19 correspondence solicitor m north mr marina resolution arrived concerning repair wall 2 january 2001 woollahra council issued emergency order plaintiff order served plaintiff cover letter saying refer meeting representative council officer 2 january 2001 proposal drawn council manager building compliance dated 2 january 2001 detailing possible solution would permit reconstruction party wall council put party sensible solution since meet objective party meet requirement building code australia proposes 110mm party wall would reconstructed spanning boundary mr marina would construct 230mm wall wholly within 4 hargrave street boundary council also advised easement support must sic created 110mm party wall ensure support maintained wall ensure future dispute arises relation status party wall mutual agreement required neighbouring party regarding matter council expects party comply fully attached order within 14 day ensure structurally sound weatherproof properly fire rated party wall erected required council jurisdiction determine cost matter 20 text order enclosed letter stated referring legal authority made term order 1 demolish reconstruct eastern brick party wall location near boundary 2 4 hargrave street paddington new wall comply part 3 7 1 3 3 4 building code australia housing provision regarding fire separation weather proofing masonry respectively please note easement support created brick party wall reason order1 wall dilapidated prejudicial occupant building person property neighbourhood 2 wall constructed solid brickwork weatherproof waterproof satisfaction council 3 wall comply part 3 7 2 building code australia housing provision regarding fire separation building period compliance orderthe period specified council period within order complied 14 day date order 21 3 january 2001 woollahra council also issued order mr marina term order m north save reference eastern brick party wall replaced reference western brick party wall b additional reason given issue order namely 4 wall demolished without prior development consent council prior consent required council correct giving additional reason 22 8 january 2001 m north instructed mr scott prepare scope plan rebuilding wall manner would comply council order infer went one version final version consisted plan annexed reason judgment single page typing headed scope document included following extent workthe work performed specification comprises demolition existing remnant section brick party wall identified council emergency order dated 2nd january reconstruction new single skin 110mm brick wall spanning boundary built original height wall sufficient cap flash wall existing skillion roof site inspection constructiongive sufficient notice following may inspected council building inspector nominated structural engineer architect acting 2 hargrave st wall construction existing footingsfoundation materialexisting footing assumed sufficient reconstruction wall refer nominated structural engineer detail brickwork build necessary flashing p c reinforcement arch bar lintel frame strap bolt lug tie metal work sill joist like completionthe following requirement given indication degree completeness expected completion external wall complete satisfactorily tied existing brick pier stone wall adjoining boundary requirement emergency order local council complied wall surface inside 2 hargrave st left suitably prepared application render adjoining floor area white tile left clean undamaged another part scope document make clear dpc mean damp proof course 23 plan mr scott prepared measured drawing type drawing architect use prepared measuring internal space within structure tape measure process preparing measured drawing enable preparer ascertain whether room measuring exactly square limit precision inherent inherent measurement made tape measure 24 mr scott inspected 2 observed stair leading upper ground floor lower ground floor built abutted western face eastern wall well brick pier also abutted wall hearth stone edge fireplace abutted wall living room area tiled floor built abutted wall toilet area external laundry tile floor laid abutted wall part wall obscured custom built wall unit built connected wall 25 15 february 2001 m north mr marina entered written agreement agreement entered lengthy negotiation detail necessary recount solicitor party officer council agreement 2 referred building 4 referred adjoining building agreement contained following recital c november 2000 marina undertook certain demolition construction work property including partial demolition structure near boundary building adjoining building structure allegedly partly situated property dispute arose north marina work paragraph c including following ownership structure ii whether work accordance development consent iii respective right responsibility respect structure generally e woollahra council council area property situated became involved dispute issued order marina dispute validity order f party agreed resolve dispute matter incidental dispute including compliance order term set agreement 26 contained following definition drawing mean drawing document prepared peter scott copy annexed attachment agreement order mean order issued woollahra council north marina 2 january 2001 wall mean wall referred drawing includes remainder existing wall demolished part work work mean work described drawing material manual supplied part work 27 included following provision sometimes word used refer mr marina refer m north 3 1 must allow u access necessary part adjoining building carry complete work accordance agreement must comply clause agreement consideration comply clause agreement 3 2 must cause work carried licensed builder strictly accordance location indicated drawing 8 1 north within 28 day completion work cause prepared appropriately qualified surveyor lawyer submit marina documentation sufficient registered land title office documentation create cross easement wall referred section 88bb 181b theconveyancing act 1919 8 2 marina must execute documentation use best endeavour achieve execution person holding interest adjoining building must return executed documentation north within 28 day receipt clause 8 1 8 3 documentation must executed north person holding interest building soon reasonably practicable party must arrange necessary execution may required take necessary step achieve registration documentation 8 4 clause affect generality clause 11 3 9 1 north must date agreement provide marina letter addressed woollahra council effect north object application made modify development consent provided modification substantially form draft letter dated 16 january 2001 marina woollahra council plan 1 sheet titled project alteration addition 4 hargrave street paddington change roof pitch garage living pavilion accommodate council requested wall height dated 14 january 2001 document provided north solicitor marina solicitor cover letter dated 17 january 2001 10 1 following registration documentation clause 8 performance clause 9 except provided agreement party mutually release claim might agreement arising matter referred background 10 2 marina must date agreement provided amount 1 400 solicitor hold escrow payment north reimburse tenant building cost alternative accommodation period work solicitor hereby irrevocably directed deal amount follows amount exceeding 1 400 claimed tenant building solicitor must provide 1 400 north upon notice north amount claim including copy claim supporting invoice b amount le 1 400 claimed tenant building solicitor must provide north amount claimed upon notice north amount claim including copy claim supporting invoice ii remainder may released marina c claim made tenant building within 3 month date agreement solicitor may release whole amount marina 11 3 party must anything including execute document must ensure employee agent anything including execute document party may reasonably require give full effect document 11 5 document contains entire agreement party subject matter previous understanding agreement representation warranty relating subject matter replaced document effect 28 drawing document made drawing within meaning agreement consisted plan prepared mr scott copy annexed reason judgment scope document relevant portion quoted paragraph 22 two document set detail manner new wall connected stone wall southern end new wall brick pier 29 26 february 2001 builder engaged m north built new single skin dividing wall 2 4 new wall replace one breached breached wall 30 26 february 2001 foundation demolished eastern skin breached wall excavated level approximately two brick course original footing fresh concrete foundation constructed excavation revealed bedrock foundation remaining western skin western skin demolished bedrock foundation single skin wall remained say demolition western skin wall exposed footing made bedrock one brick course width along length new wall built original footing bedrock built abut stair pier fireplace wall running east west separating living room laundry toilet tiled floor area living room laundry toilet area stair pier edge fireplace wall east west wall formed four reference point extended vertically reference one could check whether new wall built location western skin breached wall eastern edge tile laid floor living room laundry toilet provided check floor level new wall indeed following line along western skin breached wall constructed mr scott present throughout process demolition previous wall construction new wall give evidence new wall built footing old wall built exactly position old wall accept evidence wall constructed wall unit living room reinstated also aligned rebuilt wall provided check new wall indeed built position western skin breached wall 31 course rebuilding wall 26 february 2001 mr marina mr marina builder site 4 neither expressed concern mr scott position new wall constructed 32 course building new wall 26 february 2001 mr scott enquired mr marina sort new wall proposing build side mr marina told mr scott building new wall like give council much detail first time mr scott heard mr marina would building new wall 4 side boundary caused mr scott become concerned new wall needing waterproofing m north solicitor made numerous attempt obtain mr marina agreement waterproofing new wall without success 33 construction pavilion mr marina land occurred western wall pavilion close northern part new wall run northerly direction beyond northern end new wall southern part new wall form mr marina side wall courtyard lie main building erected 4 pavilion issue proceedings34 issue proceeding changed substantially course trial time trial started plaintiff seeking order specific performance agreement require defendant execute surveyor plan asection 88binstrument would create easement permit new wall remain easement waterproofing wall document also made provision granting easement overhanging cladding matter concerning m north negotiating mr marina plan annexed amended summons filed 5 april 2002 known linker plan basis m north sought granting easement overhanging cladding theencroachment building act 1922 alternatively section 88k theconveyancing act 1919 plaintiff also sought damage defendant breach agreement defendant part alleged new wall erected location required agreement sought removal new wall damage arising new wall constructed wrong place issue arisen party recognised pleading recognised counsel arising woollahra council served plaintiff notice requiring area upper ground floor top floor 2 covered cladding made fireproof depending fireproofing carried might involve increase order 0 02m size easement plaintiff needed respect overhanging cladding 35 second day trial counsel gave court document set extent agreement disagreement party plaintiff casethe new brick wall easement1 defendant press demolition new brick wall 2 subject paragraph 3 12 defendant accepts court order form easement relation new brick wall type generally proffered plaintiff addition cross easement flowing description wall party wall 3 defendant accepts linker plan insofar delineates boundary property 4 defendant following reservation concerning certain technical surveying aspect linker plan namely whether correct showing new brick wall width 140mm southern end ii whether correct showing brick wall width 100mm northern end possibly width near southern end pavilion 4 iii whether describes western wall pavilion erroneously brick fence iv whether fails describe new brick wall party wall reservation 5 plaintiff agrees wall linker plan described party wall 6 plaintiff accepts balance reservation issue respect linker plan 7 absent agreement reservation necessary court determine whether reservation merit 8 defendant grant access property plaintiff surveyor allow inter alia consider reservation waterproofing9 defendant accepts must compliance council order respect waterproofing compliance require form easement way access enable work undertaken maintained respect encroachment created waterproofing 10 defendant accept extent waterproofing encroachment easement shown linker plan necessary 10a compensation payable plaintiff defendant respect easement 11 absence agreement court need decide issue fire resistance overhanging cladding12 defendant accepts court order easement 0 07m respect overhanging cladding fire rating work required council order involves application fyrcheck either side stud wall upon overhanging cladding situated 13 party agree sum 1 050 appropriate compensation easement 14 party aware council requirement respect fire rating cladding may change near future seek liberty apply event change require variation agreement underlying aspect document damages15 court need determine plaintiff case damage limited loss occasioned defendant breach agreement 15 february 2001 agreement cross claimb following matter issue cross claim 16 proper construction agreement 17 whether plaintiff breached agreement causing new brick wall constructed position contemplated agreement 18 whether defendant suffered loss loss value property virtue pavilion constructed property smaller dimension consequence new brick wall constructed position contemplated agreement 19 compensation payable plaintiff defendant respect encroachment new brick wall 36 paragraph 4 document end trial clarified party accepted linker plan minor amendment could incorporated court order case respect still matter contention record persuaded substance first three reservation linker plan 37 issue concerning waterproofing new wall developed beyond situation described document view evidence made apparent pavilion 4 constructed present single skin brick extending way roof however designed wall immediately adjacent 2 cavity brick construction single skin brick extends way roof eventually innermost skin cavity brick wall present skin brick eventually comprise outer surface cavity brick wall constructed level little human head height portion outer skin constructed practical purpose hard wall 2 outer skin pavilion 4 built height little top new wall section new wall immediately adjacent pavilion waterproofed placement flashing top new wall wall pavilion height top new wall ie inner skin pavilion flashing would span greater distance allowed easement waterproofing linker plan new wall built right place 38 mr marina contends new wall constructed position agreement 15 february 2001 required one basis upon contention put arises fact mistake mr scott drawing annexed agreement drawing show existing brick wall separating northern portion laundry bathroom 2 4 thickness appropriate double brick wall fact wall single brick wall mr scott preparing measured drawing internal dimension inside 2 assumed rather measured particular wall double brick wall realise error well new wall constructed photograph taken 4 demolition breached wall show breached wall fact stood slightly east prolongation western face northern part laundry toilet wall whereas mr scott drawing show proposed new wall standing slightly west prolongation northern part laundry toilet wall mr marina contends new wall constructed junction side new wall new wall laundry toilet wall configuration shown mr scott plan 39 another basis upon mr marina contends new wall built site agreement 15 february 2001 required built arises survey evidence boundary 2 4 examined surveyor various occasion since 1953 surveyor prepared sketch plan common theme survey tendered evidence recognition impossible define original lot boundary reference way lot occupied original survey marking disappeared extra difficulty identifying boundary arose fact structure 2 4 much length boundary built hard one another possible surveyor close inspection much boundary 19 december 2000 eastern skin breached wall removed western skin breached wall breached western skin breached wall demolished hill blume surveyor carried survey sketch plan hill blume produced made available mr marina m north mr scott show single remaining skin breached wall standing wholly within 4 southern end standing approximately half 2 half 4 northern end mr scott sketch available time drew plan annexed agreement 15 february 2001 boundary intended based upon sketch plan included mr scott plan appears broken line labelled word boundary run angle within wall survey unfortunately appears another error transcribing surveyor sketch plan onto mr scott plan mr scott plan proceeds basis substantially whole southern end breached wall lie 4 approximately one half thickness breached wall considered double skin wall northern end lie within 2 mr marina contends new wall built relationship boundary two property shown mr scott plan 40 third way mr marina submits new wall constructed correct location 8 february 2001 r w martin associate surveyor issued report mr marina annexed sketch disputed boundary alone survey report produced report stated breached wall fact two wall asserted northern portion breached wall length le one metre long age rest surveyor expressed view opinion built addition later fill gap boundary fencing mr martin show short wall bearing slightly different angle rest breached wall say western face southern end boundary northern end 0 04m onto 2 thus according mr martin breached wall considered totality straight rather kink near northern end 41 mr marina make survey report available anyone else well new wall dividing 2 4 constructed 42 insofar mr marina submission new wall built wrong place arise fact mr scott plan show incorrect thickness northern end laundry toilet wall show boundary line one situation agreement requires new wall built strictly accordance location indicated drawing yet plan part drawing contains mutually inconsistent pointer new wall built plan show location new wall reference variety different reference point lie relation stone foundation wall southern end lie relation stair lie relation brick pier lie relation fireplace lie relation eastern end east west wall dividing living room laundry toilet lie relation existing brick wall separating northern portion laundry toilet 2 4 lie relation boundary indicated plan even boundary shown plan correct boundary 2 4 would physically impossible wall constructed aligned way shown plan every one reference point physically impossible precisely mr scott made two mistake made deciding whether new wall built place required agreement requires one construe agreement determine really requires concerning new wall built 43 construing document one seek ascertain intention party arising document whole reading document background information known party inmcentire v crossley bros 1895 ac 457 462 3 lord herschell lc said word quoted approval isaac j inaustralian guarantee corporation ltd v balding 1930 hca 10 1930 43 clr 140at 151 agreement must regarded whole substance must looked party cannot insertion mere word defeat effect transaction appearing whole agreement entered word one part point one direction word another part another direction must look agreement whole see substantial effect thing seems argued looking substance apart looking language party used study whole language substance ascertained 44 ingwyn v neath canal co 1868 lr 3 ex 209 215 kelly cb said court law clearly collect language within four corner deed instrument writing real intention party bound give effect supplying anything necessary inferred term used rejecting superfluous whatever repugnant intention discerned 45 court try give meaning part contract reject one clause inconsistent attempt read contract entirety harmonise provision fails inyien yieh commercial bank ltd v kwai chung cold storage co ltd 1989 2 hklr 639lord goff chievelly delivering advice privy council said lordship wish stress reject one clause contract inconsistent another involves rewriting contract justified circumstance two clause truth inconsistent point fact likely occur defect draftsmanship usual case standard form taken adapted special need frequently done example case standard form charterparty adapted broker particular contract time time discovered typed addition cannot live printed form event typed addition held prevail likely represent intention party document drafted coherent whole repugnancy extremely unlikely occur contract read whole overwhelming probability examination apparent inconsistency resolved ordinary process construction 46 rule construction whereby last resort inconsistency two clause resolved adopting earlier rule criticised qualified durbin v perpetual trustee company limited 1995 nsw convr 55 725at 55 604 per kirby p cannot apply resolve inconsistency appear within one drawing case mr scott plan 47 apparent recital agreement compliance council order fundamental objective party conclusion arises portion scope document annexed agreement provides completion occurred requirement council order complied mr scott plan annexed agreement describes new wall 110mm wall reinstated council order schedule work mr scott plan included item rebuild single skin wall council detail term order required party demolish reconstruct brick party wall location near boundary order could complied wall reconstructed site breached wall occupied already found occupied site 48 first factor mr marina relies upon assert new wall constructed location supposed constructed mr scott plan mistakenly showed northern part existing brick wall laundry toilet 2 protruded east beyond prolongation new wall view mistake mr scott plan affect proper construction agreement new wall constructed rather substance whole agreement requires construction new wall thesamelocation breached wall council order complied alignment new wall stone foundation wall timber stair existing brick pier end diagonal wall fireplace placed eastern end wall separating area behind fireplace laundry bathroom attribute new wall must location breached wall building new wall attribute necessarily mean new wall adjoins laundry toilet wall way different way shown mr scott plan possible reconcile attribute plan show new wall achieve substantial effect agreement whole aspect plan show shape junction new wall laundry toilet wall rejected inessential thus fact new wall built junction differently shaped junction shown mr scott plan mean agreement breached would possible plan define adequately indicia construction new wall without indicating thickness northern part existing brick wall laundry toilet mistake plan one inconsistency process construction permit one discard main objective agreement achieved 49 second basis mr marina submits wall constructed accordance mr scott plan hence wall agreement required built mr scott plan show boundary would result new wall northern end constructed entirely within 2 view location boundary plan assist ascertaining intention party objectively expressed concerning wall constructed one piece information party shared several surveyor expressed view boundary could accurately located absence original survey mark precisely uncertainty precise location boundary council order expressed term council said wall constructed location near boundary council recognising uncertainty precise location boundary saying wherever boundary might wall constructed location breached wall 50 recital record one aspect dispute m north mr marina ownership breached wall whether b owns wall depends upon whether extent wall constructed inside boundary land owned b respectively execution agreement mr marina solicitor asserting m north solicitor denying breached wall constructed entirely mr marina land party explicitly recognised agreement dispute breached wall lay relation boundary one objective comply council order requiring wall constructed location breached wall intention party drawn agreement location new wall defined reference boundary line boundary line shown mr scott plan could omitted plan would defined location new wall well thus failure build new wall relationship boundary shown mr scott plan mean agreement breached 51 third basis upon mr marina asserts new wall constructed correct location arises sketch attached mr martin survey report mr marina say held contrary submission council order important factor deciding construction agreement concerning new wall built new wall fact built exactly location breached wall mr martin survey show breached wall kink new wall 52 mr martin called witness plan simply tendered however surveyor suggested breached wall straight one one skin removed remaining skin breached breached wall stable process removing eastern skin breached wall required mr marina builder break every one header brick connected eastern western skin wall 21 december 2000 gap 15mm developed western face breached wall top wall brick column gap tapered nothing towards ground level thus wall moved laterally top mr scott observed day wall moved pushed stage evidence establish precisely brick ran east west direction 4 end breached wall removed clear whether happened mr martin attended mr martin plan event sketch plan circumstance would lead one approach caution result reported survey 53 regard mr scott observation new wall built comparison breached wall stood multiple physical check available show new wall indeed built location breached wall set paragraph 30 reliable indicator mr martin survey whether new wall built location breached wall 54 equally significantly clear wall mr scott plan show wall built straight sufficient reason reject submission building wall kink plaintiff breach obligation agreement 55 construe agreement reference principle construction applying far would arrive conclusion new wall built location required agreement construe agreementcontra proferentem 56 however counsel mr marina submits additional principle construction taken account result taking account mr marina contention new wall built place required agreement succeed submits drawing ambiguous location wall reason factor held mistake mr scott operation thecontra proferentemrule ambiguity ought construed m north whose agent mr scott 57 sir edward coke scommentary littleton tenure vol 1 15th edition 1794 36a concludes general discussion law deed saying deed distinction shall reade excellent matter antiquitie giving list latin maxim one maxim verba cartarum fortius accipiuntur contra proferentem 58 maxim translates word document taken strongly one put forward crudely literal translation like suggests maxim potential ambiguity relevant one put forward one put forward whole document one put forward particular word talked person actually prepared document clause question someone taken nature document put document clause forward latter reference court decide ought taken put forward particular document word 59 ambiguity fact reflected history use maxim 16th century onwards continue exist 60 one stream authority applied particularly connection insurance contract proceeds basis one party responsibility putting forward entire document hence document construed party even party involvement drafting halford v price 1960 105 clr 23at 30 per dixon cj menzies j agreed 34 per fullagar j mgica ltd v united city merchant australia ltd 1986 4 anz insurance case 68 729at 74 350 per kirby p johnson v american home assurance company 1998 hca 14 1998 192 clr 266at 274 per kirby j mccann v switzerland insurance australia limited 2000 hca 65 2000 203 clr 579at 602 per kirby j australian aviation underwriting pty ltd v henry 1988 12 nswlr 121at 126 per hope ja anderson v fitzgerald 1853 engr 872 1853 4 hl ca 484at 507 1853 engr 872 10 er 551at 560 per lord st leonard 61 case prepared look introduced particular word contract lobb phoenix assurance co ltd 1988 1 nzlr 285at 288 289 291 word part printed form rather typed addition show insurer word ocean v black sea baltic general insurance co ltd 1935 51 l1 l rep 305 307 310 assured theproferensof clause policy set broker slip bartlett partner ltd v meller 1961 1 lloyd rep 487 494 followsa ocean 62 sometimes enquiry put forward word treated exercise fact finding actually happened preparation document concerning wording contract physical form basis inference rather enquiry put forward word treated exercise analysis document decide whoought takento saying certain word inbrowning v beston 1555 56 1 plowden 131 134 75 er 202at 206 approach articulated counsel passage referred succeeding century indenture contains matter substance law make reference thereof fit reasonable say word spoken could properly speak therefore plaintiff covenanted granted render pay said sum land word fact word lessee construction law shall taken word reservation lessor inasmuch sense effect reservation 63 approach maxim result principle deed construed grantor stroud 1849 engr 996 1849 8 cb 502at 529 1849 engr 996 137 er 604at 615 per wilde cj neill v duke devonshire 1882 8 ac 135at 149 per lord selbourne lc swann v fonnereau 1796 3 f jun 41 48 1796 engr 2340 30 er 883at 887 per sir richard arden mr johnson v miro hotel pty ltd 1984 anz convr 397at 400 per mitchell acj rationale view explained cruise sdigest law real property 4th edition 1835 title 32 chapter 20 section 13 deed always construed strongly grantor verba chartarum fortius accipiuntur contra proferentem et quaelibet concessio fortissime contra donatorem interpretanda est principle self interest make men sufficiently careful prejudice using word extensive meaning manner deceit hereby avoided deed people would always affect ambiguous expression afterwards liberty put construction 64 approach maxim adopted hoffmann j inamax international ltd v custodian holding limited 1986 2 eglr 111at 112 said concerning construction rent clause lease fact tenant covenantor therefore technically proferens 65 version maxim also appears decision house lord inbirrell v dryer 1884 9 ac 345their lordship considered marine insurance policy included word warranted st lawrence first october first april question whether warranty related st lawrence river included also gulf st lawrence lord blackburn said 351 352 think description district excluded considered word one party shipowner knowing likely employ ship intend use district generally put slip description district order induce underwriter agree lower premium mean prepared say case description excepted district special may right say word assured description like general think assured right suppose underwriter understand description ought understand alike interest assured underwriter description definite lord watson 354 said certain judge held st lawrence must applied river ground expression ambiguous ambiguity must solved adversely underwriter underwriter proferentes regard policy insurance underwriter may rightly held proferentes regard many condition policy doubt whether ought held depends case upon character substance condition present case many consideration lead inference clause question one constructed inserted underwriter alone protection merely point fact inserted contract agent insured form warranty vessel navigated certain water matter entirely within power regulate consideration point rather insured proferentes think substance warranty must looked substance authorship attributable party alike main object clause define limit within vessel kept whilst navigated policy appears much concern shipowner underwriter define limit within vessel navigated purpose time policy principle precisely thing describe voyage vessel insured ordinary policy case definition subject matter insurance term contract settlement must opinion regarded case like present deliberate act party 66 another approach appears case law say provision contract interpreted person whose benefit inserted burton v english 1883 12 qbd 218at 220 per brett mr 222 224 per bowen lj exclusion liability charter party thomas national transport melbourne pty ltd v may baker australia pty ltd 1966 hca 46 1966 115 clr 353at 376 per windeyer j example given sir frederick jordan inj fenwick co pty ltd v federal steam navigation co ltd 1943 nswstrp 35 1943 44 sr nsw 1 5 6 thus relation clause providing exception liability assumed one party said rule construction exception taken strongly party whose benefit introduced word expressed considered word use word clearly express meaning person ought sufferer blackett v royal exchange assurance coy 1832 2 c j 244 251 rule applied insurer construction exception insurer promise indemnify ibid shipping company construing exception promise carry safely taylor v liverpool great western steam company 1874 lr 9 qb 546at 549 550 burton v english 1883 12 qbd 218at 220 lessor construing exception property leased bullen v denning 1826 engr 93 1826 5 b c 842at 847 850 conveyor construing exception property conveyed earl cardigan v armitage 1823 engr 232 1823 2 b c 197at 206 7 savill bros ltd v bethell 1902 2 ch 523at 537 8 case except last person whose favour exception introduced also person prepares document case conveyance conveyor ambiguous exception read notwithstanding purchaser prepares conveyance inphilippson v imperial airway limited 1939 ac 332at 353 365 6 case ofelderslie steamship company v borthwick 1905 ac 93andnelson line liverpool limited v james nelson son ltd 1908 ac 16are treated attempt shipping company limit liability exception inoperative ambiguously expressed 67 thus one line case say deed strongly construed grantor someone conveying property ought careful ensure give much away another line case say contractual provision construed party whose benefit intended operate person receives benefit contract ought careful clearly state benefit received receive little conveyance property readily seen benefit hard reconcile two view 68 theme appears case law word covenant taken strongly party stipulates webb v plummer 1819 2 b ald 746at 751 per holroyd j least sometimes notion party stipulates taken sense found way civil code lower canada considered privy council incanada steamship line limited v king 1952 ac 192 code provided case doubt contract interpreted stipulated favour contracted obligation 1952 ac 192at 208 appears adopting notion roman law broom legal maxim 10th edition 1939 say 406 roman law rule consideration construction contract may said substance existed although meaning differed considerably attache rule fere secundum promissorem interpretamur wherepromissor fact signified person contract obligation replied thestipulatioproposed contracting party case doubt clause contract thus offered accepted interpreted thestipulator favour thepromissor stipulationibus cum quaeritur quid actum sit verba contra stipulatorem interpretanda sunt reason mode construction quia stipulatori liberum fuit verba late concipere person stipulating take care fully express proposes shall done benefit 69 different strand principle recognised caselaw concerning application maxim strand could come conflict common example one given sir frederick jordan infenwick conveyance land commonly prepared transferee yet grant made transferor 70 lewison interpretation contract 2nd edition page 172 argues one strand interpretation maxim wrong say identification theproferensshould confused identification draftsman inlevison v farin 1978 2 er 1149at 1156 common ground clause question emerged result joint effort maxim relevance similar approach taken hirst j inkleinwort benson ltd v malaysian mining corpn berhad 1988 1 wlr 799where held principle would apply joint drafting effort submitted approach unsound thecontra proferentemprinciple principle construction evidence negotiation inadmissible question construction investigation drafted must always require examination negotiation true principle theproferensis person whose benefit clause inserted rather person actually drafting 71 seem line authority seek apply maxim identifying draftsperson disposed simply many case high authority seek apply maxim identifying draftsperson see paragraph 60 61 well reason principle mr lewison give rejecting case one used least form mr lewison express australia incodelfa construction pty ltd v state rail authority nsw 1982 hca 24 1982 149 clr 337 352 mason j said true rule evidence surrounding circumstance admissible assist interpretation contract language ambiguous susceptible one meaning admissible contradict language contract plain meaning generally speaking fact existing contract made receivable part surrounding circumstance aid construction unless known party although seen fact notorious knowledge presumed difficulty arises respect evidence prior negotiation obviously prior negotiation tend establish objective background fact known party subject matter contract extent tendency admissible far consist statement action party reflective actual intention expectation receivable 72 accordance statement law australia evidence negotiation sometimes particular limited purpose admissible question construction identifying draftsperson contract clause case may could arguably seen proving objective background fact known party identifying draftsperson identify actual intention expectation party contract vice mason j identified using evidence negotiation construe contract committed way dealing different strand authority concerning application maxim need found different least complex mr lewison proposes 73 application thecontra proferentemrule fact case cause difficulty party agreement cannot readily categorised grantor grantee served council order requiring reconstruct wall wall near common boundary agreed give cross easement wall similarly mr scott drawing indeed aspect cannot readily categorised inserted benefit one party benefit mr marina input mr scott documentation council file note 17 january 2001 record mr marina telling mr oldfield mr marina asked mr scott amend certain aspect specification resubmitted evidence disclose amendment whether actually accepted remains case mr scott plan like aspect agreement came final form process negotiation party 74 rather solve problem considering concerning thecontra proferentemmaxim look elsewhere decide maxim bear fact case different strand authority considering far related meaning maxim diversity view concerning circumstance purpose maxim used 75 role maxim enable court choose alternative meaning document clause question meaning fairly open legitimate use maxim say two meaning particular contractual provision possible meaning unfavourable theproferensshould chosen one alternative meaning unrealistic unlikely construction contract inswann v fonnereau 1796 3 f jun 41 47 48 1796 engr 2340 30 er 883at 887 sir richard arden mr said concerning deed settlement grant thomas fonnereau truly argued grant taken extensively favour object settlement wife child strongly grantor fair inference allow emphasis added inneill v duke devonshire 1882 8 ac 135at 149 lord selbourne lc said well settled word deed executed valuable consideration construed far properly may favour grantee emphasis added inwestern australian bank v royal insurance co 1908 hca 11 1908 5 clr 533at 554 griffith cj said doctrineverba chartarum fortius accipiuntur contra proferentem although seldom resorted rest solid foundation justice one party transaction us verbally writing languagereasonably susceptibleof two construction party used may fairly say understood sense favourable contention ireland v livingstonlr 5 hl 395 emphasis added inwilson v harvey trinder nsw pty ltd 1973 2 nswlr 870at 878 samuel j said one astute find ambiguity order work presumption insurer 76 well established thecontra proferentemrule used document otherwise ambiguous travinto nominee pty ltd v vlattas 1972 1 nswlr 24at 42 per mason ja brown v petranker 1991 22 nswlr 717at 726 per clarke ja handley ja waddell aja agreed independent timber importer v mercantile mutual insurance ltd 2002 12 anz in ca 61 543 2002 nswca 304at 22 per gzell j sheller giles jja agreed c e heath underwriting insurance aust pty ltd v edward dunlop co ltd 1993 hca 21 1993 176 clr 535at 548 per dawson toohey mchugh jj statement law set previous paragraph show deciding whether document ambiguous stretched artificial notion ambiguity used 77 thecontra proferentemrule principle last resort mlc limited v neill 2001 nswca 161at 20 per mason p handley hodgson jja agreed mccann v switzerland insurance australia limited 2000 hca 65 2000 203 clr 579at 602 per kirby j rouleston clarke pty limited liq v fai general insurance co limited 2000 tassc 63 2000 11 anz inscas 61 473at 75 417 inparkinson v barclays bank ltd 1951 1 kb 368at 375 cohen lj said counsel pressed u maxim deed must construedcontra proferentem applying ordinary principle construction arrive clear conclusion party meant language used think maxim come action statement effect found inwestern australian bank v royal insurance co 1908 hca 11 1908 5 clr 533at 559 per barton j andst edmundsbury ipswich diocesan board finance v clark 2 1975 1 er 772at 780 per russell orr ljj sir john pennycuick 78 approach established law new south wale ing l nederland asia pty ltd v expertise event pty ltd 1999 nswca 62at 27 giles ja spigelman cj beazley ja agreed said rule applies applied aid construction ambiguity remains 79 present case construction agreement requiring new wall identified reference either mistake mr scott plan requiring new wall built kink strained artificial one comfortably able construe agreement purpose working whether new wall built place requires without application thecontra proferentemrule agreement construed using aid construction thecontra proferentemrule ambiguity topic thus occasion use thecontra proferentemrule arise 80 conclude new wall built location required agreement consequence mr marina entitled damage breach agreement entitled compensation reason encroachment new wall extent easement waterproofing new wall81 party accept new wall must made waterproof mr scott expressed view accept proper waterproofing portion new wall lie immediately adjacent pavilion require flashing extend manner shown precisely exhibit c new wall portion wall pavilion immediately adjacent top new wall however easement ordered created would create le interference mr marina right drafting easement permitted mr marina eventually bring outer skin wall pavilion full height without impeded easement waterproofing common ground party periodical painting part new wall immediately adjacent pavilion waterproof paint sealant suffice waterproof wall 82 common ground plaintiff defendant must form easement waterproofing defendant accept width easement shown linker plan necessary well defendant submits compensation grant easement made linker plan show easement described easement permit encroaching structure remain waterproofing variable width includes site new wall roughly rectangular space extending mr marina property face wall 83 examine area dispute remains necessary look basis upon plaintiff seek easement waterproofing one basis agreement part scope document form part drawing hence defines work purpose agreement say one requirement completion requirement emergency order local council complied emergency order includes requirement new wall comply part 3 7 1 3 3 4 building code australia housing provision regarding fire separation weather proofing masonry respectively plaintiff proved requirement building code australia concerning weather proofing light paragraph 9 agreed issue document set paragraph 35 need litigate issue trial common ground party painting portion new wall south pavilion waterproof paint would suffice waterproof manner required council order route m north contractual right waterproofing southern portion new wall carried 84 another route agreement imposes obligation concerning waterproofing part scope document relating brickwork includes item build necessary flashing satisfied flashing necessary top new wall immediately adjacent part wall pavilion denying access 4 purpose constructing flashing mr marina breach obligation clause 3 1 agreement insofar construction flashing would require mere granting access would also require mr marina permit flashing affixed outer wall pavilion clause 11 3 requires permit occur route m north contractual right waterproofing northern part new wall carried 85 alternative basis upon plaintiff seek easement section 88k theconveyancing act 1919 provides 1 court may make order imposing easement land easement reasonably necessary effective use development land benefit easement 2 order may made court satisfied use land benefit easement inconsistent public interest b owner land burdened easement person estate interest land evidenced instrument registered general register deed register kept thereal property act 1900can adequately compensated loss disadvantage arise imposition easement c reasonable attempt made applicant order obtain easement easement effect unsuccessful 3 court specify order nature term easement particular referred section 88 1 appropriate identify site reference plan capable registered recorded division 3 ofpart 23 term may limit time easement applies 4 court provide order payment applicant specified person compensation court considers appropriate unless court determines compensation payable special circumstance case 5 cost proceeding payable applicant subject order court contrary 86 m north contractual right carry waterproofing new wall contract address question ongoing right repair maintain waterproofing replace time time m north successor title able repair maintain replace waterproofing would necessary obtain grant easement section 88k therefore turn consider requirement section 87 doubt effective use development 2 requires new wall waterproof new wall located near boundary 2 4 practice necessary easement 4 enable waterproofing occur thus requirement section 88k 1 met 88 submitted use part 4 benefit easement inconsistent public interest purpose section 88k 2 court need satisfied regardless submission party might make basis evidence use land benefit easement inconsistent public interest satisfied 89 provided easement drafted way granted condition permit mr marina complete construction wall pavilion see reason owner 4 cannot adequately compensated loss disadvantage would arise imposition easement requirement section 88k 2 b satisfied 90 long course negotiation party matter also satisfies plaintiff made reasonable attempt short litigation obtain easement unsuccessful requirement section 88k 2 c satisfied 91 result would order specific performance agreement enable waterproofing new wall occur creation easement section 88k permit repair maintenance waterproofing new wall take place replacement time time portion new wall immediately adjacent pavilion easement would width sufficient enable flashing shown exhibit c installed easement would granted basis talked paragraph 81 shall proceed judgment basis party able draft documentation achieve objective extent unable agree documentation settle rest new wall see need easement waterproofing extend 2cm beyond eastern face new wall width would enough enable waterproofing material applied time time remain would necessary tradesman replaced waterproofing time time enter upon land 4 carry work provided term easement made clear application waterproofing material time time retention waterproofing material would implied ancillary right permitted workman come onto land 4 material necessary carry waterproofing time time hemmes hermitage pty ltd v abdurahman 1991 22 nswlr 343 92 mr weber sc counsel m north submits compensation payable respect easement waterproofing need waterproof arises solely fact defendant demolishing eastern skin old brick wall contrary development consent b plaintiff paid construction new wall c waterproofing required done result council order issued plaintiff defendant extent flashing attached outer wall pavilion would constitute encroachment minimal kind e compensation payable agreement provides waterproofing mutual release 93 accept first four point factually correct accept fifth point part earlier held agreement provides installation waterproofing flashing far necessary northern part new wall waterproofing painting southern part new wall initial performance work mr weber fifth point correct far ongoing maintenance waterproofing concerned fifth point one accept 94 ought flow fact paragraph 9 issue document say defendant accepts compliance council order require form easement way access enable work undertaken maintained respect encroachment created waterproofing party accept effect order require grant easement strong necessarily decisive factor favour compensation payable respect easement waterproofing view first second mr weber reason provide separate sufficient ground compensation payable respect easement waterproofing breach defendant agreement 95 plaintiff seek damage breach agreement defendant plaintiff alleges defendant breach agreement two way refused access plaintiff tradesman allow waterproofing undertaken failed comply obligation cause cross easement become registered pursuant obligation clause 8 2 agreement 96 4 april 2001 mr marina refusing access plaintiff purpose completing waterproofing wall follows earlier finding mr marina breach clause 3 1 agreement refusing permit access purpose installing flashing new wall pavilion painting southern end new wall 97 clause 8 2 agreement requires defendant execute documentation create cross easement wall obligation clause 8 2 dependent upon plaintiff submitted within 28 day completion work documentation sufficient create cross easement waterproofing completed work completed thus occasion defendant execute document creating cross easement yet arisen defendant breach clause 8 2 98 however reason defendant breach clause 8 2 work complete failure work complete arises waterproofing performed breach clause 3 1 defendant part agreement contemplated expressly registration cross easement would follow upon completion work thus damage plaintiff might suffered reason cross easement registered special damage breach clause 3 1 99 damage plaintiff claim largely legal fee 4 april 2001 blake dawson waldron rendered tax invoice relating professional service concerning boundary wall period ended 31 march 2001 total amount 4 157 52 inclusive gst liability incurred plaintiff breach plaintiff relies well consideration item blake dawson waldron charged exhibit page 875 876 show many nature could consequence breach part defendant plaintiff entitled damage concerning tax invoice 100 2 may 2001 blake dawson waldron rendered tax invoice amount 2 480 48 inclusive gst relating advice concerning boundary wall period ended 30 april 2001 narration concerning account exhibit page 907 reveals item likely consequence breach part defendant agreement others cannot satisfied case attempt made either evidence submission analyse memorandum fee memoranda fee relate m north claim damage court assessing damage breach contract relieved duty assessing loss merely calculation difficult one circumstance admit damage assessed certainty per street cj howe v teefy 1927 nswstrp 41 1927 27 sr nsw 301at 305 306 quoted dixon fullagar jj mcrae v commonwealth disposal commission 1951 hca 79 1951 84 clr 377at 412 even plaintiff still bear onus proof concerning quantum damage plaintiff established 500 face value memorandum fee arises breach part defendant 101 1 june 2001 blake dawson waldron sent additional invoice face value 5 110 48 relating period ended 31 may 2001 consideration matter memorandum fee relates exhibit page 916 suggests relates breach defendant might would regard 2 000 face value memorandum fee amount likely result defendant breach 102 28 june 2001 blake dawson waldron sent memorandum fee period ending 27 june 2001 face value 1 125 70 looking description matter memorandum relates exhibit page 923 satisfied consequence breach agreement defendant 103 31 july 2001 blake dawson waldron sent m north tax invoice 1 208 51 inclusive gst narration matter memorandum relates exhibit page 933 persuade relates consequence breach part defendant 104 certain subsequent memoranda fee blake dawson waldron rendered m north accepts ought properly taken account order cost might made favour rather claim damage total amount ultimately rendered blake dawson waldron 77 111 agreement liability discharged upon payment sum 39 473 95 represented 56 sum rendered seems 56 figure applied portion face value invoice consequence defendant breach agreement thus amount paid blake dawson waldron plaintiff receive damage sum 56 2 500 namely 1 400 105 m north also make claim connection amount 968 paid hill blume surveyor prepare plan execution registration plan sent blake dawson waldron defendant solicitor 20 june 2001 executed however plaintiff claim plan drawn hill blume executed instead propounds linker plan satisfied cost preparing hill blume plan consequence breach defendant agreement 106 total damage plaintiff entitled reason defendant breach agreement 1 400 ordersi direct party bring short minute order give effect agreement reached reason judgment image last updated 03 03 2003 |
O'Kane v Freelancer International Pty Ltd & Anor (No.3) [2019] FCCA 2727 (27 September 2019).txt | kane v freelancer international pty ltd anor 3 2019 fcca 2727 27 september 2019 last updated 30 september 2019federal circuit court australiao kane v freelancer international pty ltd anor 3 2019 fcca 2727catchwords industrial law cost application unders 570 2 b thefair work act 2009 cth fw act successful first respondent cost claim incurred applicant unreasonable conduct connection claim applicant brought fw act whether first respondent established incurred cost claim incurred whether cost first respondent established incurred incurred unreasonable act omission applicant application cost unfounded whether first respondent application cost unreasonable act order 570 fw act ought made first respondent order 570 fw act made first respondent legislation fair work act 2009 cth s 570 1 570 2 570 2 b federal circuit court rule 2001 cth schedule 1 part 1workplace relation act 1996 cth 824 2 case cited aucare dairy aust pty ltd v huang 4 2019 fca 1187colgate palmolive company v cussons pty limited 1993 fca 536 1993 46 fcr 225construction forestry mining energy union v clarke 2008 fcafc 143council kangan batman institute technology education v australian industrial relation commission 2006 fcafc 199o kane v freelancer international pty ltd anor 2018 fcca 933o kane v freelancer international pty ltd anor 2 2018 fcca 3021applicant matthew kanefirst respondent freelancer international pty ltd acn 134 845 748 second respondent robert matthew barriefile number syg 3488 2016judgment judge manousaridishearing date 23 october 2018date last submission 23 october 2018delivered sydneydelivered 27 september 2019representationcounsel applicant mr g boycesolicitors applicant solve legal pty ltdcounsel first respondent mr c waterstreet mr guysolicitors first respondent longton legalno appearance behalf second respondentorders 1 respondent application cost pursuant tos 570 2 b thefair work act 2009 cth fw act dismissed 2 pursuant 570 2 b fw act first respondent pay applicant cost respondent application cost set amount 17 371 77 federal circuit courtof australiaat sydneysyg 3488 2016matthew kaneapplicantandfreelancer international pty ltd acn 134 845 748 first respondentrobert matthew barriesecond respondentreasons judgmentintroductionon 27 april 2018 reason set judgment published day earlier reason 1 dismissed application relief thefair work act 2009 cth fw act mr kane brought first respondent freelancer second respondent mr barrie made order cost reserved party liberty apply order cost 18 may 2018 freelancer mr barrie respondent exercised liberty filing application case initially framed respondent claimed mr kane pay cost proceeding circumstance set later reason mr barrie pursue application cost accepted issued invoice legal fee relation proceeding freelancer limited claim cost discrete issue 17 june 2018 mr kane filed response claimed order respondent pay cost application cost mr kane claim respondent application cost constitutes vexatious unreasonable conduct heard freelancer mr kane application cost 23 october 2018 accepted party whether make order cost turn application 570 fw act particular 570 2 b fw act provides court may order one party pay party cost party unreasonable act omission caused party incur cost reason judgment therefore consider whether either freelancer mr kane committed unreasonable act omission alleges committed whether act omission caused incur cost consider question necessary first set relevant text 570 fw act authority said provision set course application cost freelancer mr barrie initiated 2 section 570 2 b fw actboth freelancer mr kane rely 570 2 b fw act paragraph must read 570 1 1 party proceeding court relation matter arising act may ordered court pay cost incurred another party proceeding accordance subsection 2 section 569 569a 2 party may ordered pay cost b court satisfied party unreasonable act omission caused party incur cost text 570 1 570 2 b seen power award cost provided 570 2 arises following event present first party seeking order cost incurred cost proceeding ordinarily requires identification act omission party led incur legal cost proceeding would useful describe act omission cost generating activity second cost generating activity caused party act omission third party act omission caused cost generating activity unreasonable issue party principle govern exercise power award cost 570 2 fw act freelancer written submission accepted discretion award cost fw act matter one exercised much haste 3 cost rarely awarded section exceptional circumstance required justify making order 4 freelancer submitted however addition observation correct approach determining whether party engaged unreasonable act omission depends objective analysis circumstance case court 5 also useful bring mind following observation full federal court inconstruction forestry mining energy union v clarke 6 authority indicate distinction party pursues argument ultimately abandoned rejected court party commences proceeding misconceived sense incompetent unsupportable simply party conduct litigation efficient way mean court exercise discretion 824 2 wr act make cost order view neither late abandonment defence use notice contention advance previously minor ultimately unsuccessful argument cross threshold unreasonable act omission purpose 824 2 indeed court use discretion 824 2 ensure party litigation arising wr act engage unreasonable act omission put party undue expense also careful exercise discretion much haste given haste may discourage party fear adverse cost order pursuing litigation wr act manner deem best course application costsfreelancer mr barrie exercised liberty apply cost 18 may 2018 filing document titled application case cost document set ground freelancer mr barrie contend mr kane pay cost mr barrie claimed mr kane joined mr barrie respondent harass embarrass reason mr kane proceeding mr barrie vexatious unreasonable application cost first came 20 june 2018 mr hanby solicitor appeared respondent mr boyce counsel appeared mr kane party provided proposed direction filing evidence setting hearing application cost indicated party however prepared make direction satisfied respondent properly considered whether reasonable ground claiming mr kane pay cost raised number matter mr hanby first whether fee note issued mr barrie relation proceeding mr hanby confirmed fee note issued mr barrie asked whether circumstance mr barrie applying order cost second whether mr hanby agreed hearing mr kane claim fw act devoted defence respondent raised finding made earlier reason relation defence adverse respondent third matter raised ground respondent could claim mr kane case depended accepting account conversation mr barrie 17 august 2016 bound fail given devoted many many paragraph many hour analysis conclude accept mr kane account conversation fourth matter raised whether extent respondent rely 570 2 b fw act required identify particular cost incurred act omission claimed caused incur cost particular act omission negligent fifth final matter related unparticularised allegation theft made theapplication case cost directed respondent file serve 18 july 2018 point claim specifying cost respondent contend incurred contend mr kane pay fact matter rely contending andall affidavit respondent intend rely affidavit already read proceeding support application cost also ordered matter listed direction 27 july 2018 respondent comply order made 27 july 2018 matter next came objection permitted respondent file point claim affidavit 15 august 2018 listed matter direction 22 august 2018 respondent file point claim instead 17 august 2018 freelancer filed document titled respondent outline submission cost document confirmed freelancer applies order cost submission freelancer made document may summarised follows mr kane led affidavit evidence inherently unlikely ever accepted arbiter fact 7 forced freelancer respond mr kane material affidavit required freelancer counsel cross examine mr kane inherently unlikely evidence generated cost extending length hearing 8 mr kane acted unreasonably deposing second affidavit effect email chain refer paragraph 59 earlier reason mr barrie mr koch advised mr kane leave mr x found earlier reason mr kane interpretation email one reasonably open 9 mr kane acted unreasonably regard evidence respect respondent attitude toward applicant safety 10 generally part freelancer submission directed claim made paragraph 31 form 2 11 m olsen seemed uninterested dismissive mr kane complaint safety finding made claim paragraph 76 earlier reason freelancer submits mr kane putting forward affidavit consistent documentary evidence unreasonable act part applicant put respondent additional cost 12 mr kane acted unreasonably presenting two inconsistent account meeting mr x mother 17 august 2016 13 mr kane acted unreasonably leading evidence account meeting mr barrie 17 august 2016 lacking credit 14 mr kane acted unreasonably alleging form 2 exercised five workplace right relied exercise one asserted right hearing 15 mr kane acted unreasonably deposing irrelevant scandalous irresponsible matter affidavit 14 july 2017 16 20 september 2017 mr kane applied obtained discovery document mr kane acted unreasonably relied small portion vast array document 17 addition filing submission cost freelancer filed affidavit made m sharon lea drew 20 august 2018 m drew cost assessor appears mr drew prepared affidavit basis instruction contained email mr coyle freelancer lawyer sent m drew 6 august 2018 18 instructed act freelancer international pty ltd recover cost pursuant tosection 570of thefair work actfor proceeding commenced applicant mr kane federal circuit court australia sydney court indicated legal cost freelancer recoverable threshold ofsection 570is crossed request please provide estimate fee review tax invoice piper alderman work federal circuit court regulated cost matter 22 august 2018 made direction included permitting freelancer file affidavit 29 august 2018 set hearing application cost 5 october 2019 28 august 2018 freelancer filed two affidavit m drew one made 21 august 2018 second made 24 august 2018 m drew made affidavit sent following email mr coyle 15 august 2018 19 drafted table detailing applicable federal circuit court schedule fee various period proceeding span table estimated total cost disbursement recoverable freelancer accordance fcc schedule way fcc scale work cost event based make difficult identify cost would incurred unreasonable act omission mr kane best methodology think would demonstrate hearing length increased reason particular sic issue addressed 7 hearing day establish total hearing time increased 1 day example claim cost one day would 7 584 50 including counsel fee discrete event costing perspective mediation likely unreasonable application discovery application anti suit injunction application discovery seems potentially classified unreasonable freelancer filed affidavit m drew made 24 august 2018 m drew sent email mr coyle 23 august 2018 20 email m drew attached draft affidavit plus redacted invoice referred invoice issued piper alderman insurer indicating 60 invoiced freelancer 40 invoiced insurer explained methodology used calculate indemnity cost ground 12 september 2018 mr kane filed affidavit made solicitor mr kutasi 2 october 2018 mr kane filed written submission freelancer filed affidavit made m drew 21 september 2018 application cost came hearing 5 october 2018 read affidavit m drew made 21 august 24 august 21 september 2018 affidavit mr kutasi made 12 september 2018 counsel mr kane called notice produce answered freelancer producing document adjourned hearing short time permit counsel mr kane inspect document produced make copy proposed use matter resumed became apparent contested question privilege arose counsel mr kane said wished cross examine m drew freelancer arranged m drew available cross examination ordered hearing adjourned set hearing 17 october 2018 question privilege made direction filing evidence question privilege 17 october 2018 heard argument question privilege handed judgment question 19 october 2018 21 rejected freelancer claim privilege ordered grant mr kane access document freelancer claimed privilege set hearing 23 october 2018 freelancer application cost evidence hearingfreelancer relied three affidavit m drew made affidavit made 21 august 2018 m drew say freelancer provided tax invoice instructed ass freelancer scale cost indemnity costsresulting alleged unreasonable conduct applicant mr kane respect 7 ground unreasonable act omission caused freelancer incur cost 22 scale cost apparent m drew intended refer cost allowed bypart 1of schedule 1 thefederal circuit court rule 2001 cth schedule cost ground m drew refers freelancer identifies therespondent outline submission cost m drew assessed scale cost indemnity cost ground follows grounddescriptionscale amountindemnity amount exclusive gst 1june 2016 email handling mr x personal itemsnil 1 901 702allegations attitude towards applicant safety 2 750 3 876 723meeting mr x mothernil 2 775 774exchange barrie 17 august 2016nil 1 596 955abandonment workplace right issuesnilnil6irrelevant evidencenilnil7discovery 4 421 50 7 219 50total 7 171 50 17 370 64in affidavit made 24 august 2018 m drew attempt explain assessed freelancer cost indemnity basis relation cost assessed ground 1 3 4 m drew deposed identified portion affidavit evidence mr barrie mr koch affirmed 5 september 2017 clearly related ground noting example review identified 10 paragraph mr barrie affidavit 5 paragraph mr koch affidavit relating ground 1 23 m drew say reviewed invoice piper alderman lawyer acted freelancer hearing relating preparation affidavit evidence m drew annexed copy relevant invoice m drew say work described invoice fall three category work relates solely mr barrie affidavit work relates solely mr koch affidavit shared work relating consideration preparation evidence including solely mr barrie mr koch affidavit m drew allocated shared work work done mr barrie mr koch affidavit m drew assessed cost likely allowed indemnity basis preparing mr barrie affidavit evidence 25 348 13 mr koch affidavit 12 918 13 m drew apportioned total cost affidavit proportion percentage content relating specific ground order calculate cost calculated indemnity basis ground deposed earlier affidavit relation ground 2 m drew say instructed addition providing affidavit evidence one half day devoted oral evidence relating ground m drew allowed three hour solicitor carriage matter 1 500 counsel finally relation ground 7 discovery m drew say reviewed invoice piper alderman relating mr kane affidavit provided information counsel fee discovery evidence given cross examination m drew confirmed consider whether seven ground reflected unreasonable act omission behalf mr kane m drew unable recall witness box paragraph affidavit mr barrie mr koch assessed although m drew affidavit 21 august 2018 say reviewed transcript oral evidence 30 october 2017 could recall length transcript reviewed although m drew deposed reviewed affidavit mr kane mr barrie mr koch mr de jong could recall date mr kane affidavit reviewed m drew acknowledged set affidavit analysis calculation assessed indemnity cost counsel mr kane put m drew particular entry invoice referred drafting affidavit person addition mr barrie mr koch m drew accepted allocated work relating witness work associated preparation mr barrie mr koch affidavit could tell invoice much time taken preparing affidavit m drew accepted allocation educated guess noting guesswork based overall time invoice showed devoted preparing affidavit mr barrie mr koch freelancer claim costsit apparent freelancer written submission m drew affidavit freelancer claim cost relation cost claimed arise seven discrete event issue m drew classified according ground ground 1 june 2016 email handling mr x personal itemsthe cost generating activity ground 1 purport apply mr barrie mr koch putting evidence affidavit made 5 september 2017 24 act omission freelancer claim caused cost generating activity mr kane deposed paragraph 45 affidavit 3 october 2017 believed effect certain email leave mr x 25 difficulty freelancer claim cost generating activity preparing evidence came included affidavit mr barrie mr koch made 5 september 2017 occurredbeforemr kane made affidavit 3 october 2017 open find act occurred 3 october 2017 caused cost generating activity occurred one month act reason alone cost freelance say incurred intended covered ground 1 cannot recovered order 570 fw act even cost generating activity freelancer relies could said caused mr kane deposing paragraph 45 affidavit 3 october 2017 satisfied cost freelancer incurred established m drew sufficiently describe base assessed cost identify paragraph assumed produced cost generating activity assessed identify precision nature amount work went producing paragraph m drew allocates work accepts specifically refer mr barrie mr koch affidavit given conclusion unnecessary determine whether mr kane deposing paragraph 45 affidavit 3 october 2017 unreasonable however say something true paragraph 60 earlier reason found reasonably open mr kane interpret email manner deposed however thing finding mr kane deposing constituted unreasonable act commonplace litigation party genuinely perceive reality way judge hearing evidence submission reserving judgment find implausible arrived finding mr kane evidence paragraph 45 affidavit 3 october 2017 considered evidence detail finding would felt liberty make considering evidence manner set earlier reason one final matter note m drew purported ass cost generating activity covered ground 1 indemnity basis freelancer however made submission effect assuming entitled order cost incurred result cost generating activity cost assessed indemnity basis freelancer appears assume act unreasonable within meaning 570 2 b fw act would empower court ass cost act caused indemnity basis assumption incorrect principle governing court discretion award cost well established cost ordinarily follow event awarded party party basis unless particular special circumstance would warrant court making special cost order including order cost assessed indemnity basis 26 relevant principle summarised sheppard j incolgate palmolive company v cussons pty limited 27 seems following principle guideline distilled authority referred ordinary rule court order cost one party litigation paid another party order payment cost party party basis court provision order 62 rule 12 19 second schedule rule apply taxation many case result amount recovered successful party order fall short many case well short complete indemnity settled practice century england practice entrenched australia either legislation perhaps form amendment rule court decision intermediate court appeal high court would required alter consequence settled practice exists court ought usually make order payment cost basis party party basis circumstance case must warrant court departing usual course view judge dealing application payment cost indemnity basis whether england test variously put court appeal andrew v barnes 39 ch 141 said court general discretionary power award cost solicitor client justice case might require woodward j fountain selected meat appears adopted said brandon lj preston v preston 1982 1 er 58 namely special unusual feature case justify court departing ordinary practice judge dealing problem resolved particular case dealing circumstance case finding presence absence factor would capable existed warranting departure usual rule french j said 8 tetijo category discretion may exercised closed davy j expressed 6 similar view ragata notwithstanding fact useful note circumstance thought warrant exercise discretion instance making allegation fraud knowing false making irrelevant allegation fraud evidence particular misconduct cause loss time court party fact proceeding commenced continued ulterior motive wilful disregard known fact clearly established law making allegation ought never made undue prolongation case groundless contention imprudent refusal offer compromise award cost indemnity basis contemnor category case found report yet others arise future different feature may justify order cost indemnity basis question must always whether particular fact circumstance case question warrant making order payment cost party party basis remains say existence particular fact circumstance capable warranting making order payment cost instance indemnity basis mean judge necessarily obliged exercise discretion make order cost always discretion trial judge provided discretion exercised regard applicable principle particular circumstance instant case exercise found miscarried unless appears order made involves manifest error injustice accept appropriate case party unreasonable act omission might engage discretion order cost assessed indemnity basis given breadth discretion range circumstance power ass cost indemnity basis arise cannot assumed one unreasonable act cause cost generating activity would warrant order cost incurred consequence cost generating activity assessed indemnity basis conclude freelancer claim cost covered ground 1 unsupportable reason also find freelancer making claim constitutes unreasonable act purpose 570 2 b fw act ground 2 allegation attitude towards applicant safetyin affidavit 24 august 2018 m drew describes cost generating activity covered ground 2 additional three hour worth hearing time freelancer therespondent outline submission costsidentify cost generating activity however identify act alleges gave rise incurring cost first consists allegation mr kane made paragraph 31 form 2 complained m olsen relation personal safety m olsen interested mr kane safety 28 second mr kane maintaining position receive assistance m olsen despite email put hearing 29 ground freelancer claim act unreasonable finding made paragraph 75 76 earlier reason accept mr kane made allegation paragraph 31 form 2 maintaining receive assistance m olsen resulted addition three hour worth hearing time evidence basis three hour estimate arrived opinion m drew cross examination said conveyed telephone counsel appeared freelancer hearing even mr kane allegation maintenance position result additional three hour hearing time something could reasonably attributed mr kane assessed credibility part mr kane evidence reference inconsistency undisputed email communication demonstration inconsistency require three hour worth cross examination cost generating activity freelancer claim caused mr kane act omission also accept finding made paragraph 75 76 earlier reason establish allegation mr kane made paragraph 31 form 2 unreasonable arrived finding considered evidence detail finding would felt liberty make considering evidence manner set earlier reason finally repeat said indemnity cost freelancer assumed would entitled order indemnity cost establishing incurred cost unreasonable conduct mr kane assumption incorrect conclude therefore freelancer claim cost covered ground 2 also unsupportable reason also find freelancer making claim constitutes unreasonable act purpose 570 2 b fw act ground 3 meeting mr x motherfreelancer therespondent outline submission costsidentify cost generating activity covered ground 3 freelancer submission however identify act omission alleges caused incur cost mr kane given inconsistent account meeting mr x mother affidavit 24 august 2018 m drew set assessed cost involved allocating cost charged preparing affidavit mr barrie mr koch others m drew however identify particular paragraph said prepared response mr kane inconsistent account meeting mr x mother therefore evidence basis could make finding mr kane giving inconsistent account meeting m x mother caused cost generating activity freelancer reason alone part freelancer claim cost unsupportable also find freelancer making unsupportable claim constitutes unreasonable act purpose 570 2 b fw act ground 4 exchange mr barrie 17 august 2016as ground 3 freelancer therespondent outline submission costsidentify cost generating activity covered ground 4 therespondent outline submission cost however identify act omission alleges caused incur cost mr kane put forward version conversation mr barrie accept indicate mr kane acted unreasonably freelancer therespondent outline submission costsidentify cost generating activity claim mr kane caused affidavit 24 august 2018 m drew set assessed cost involved allocating cost charged preparing affidavit mr barrie mr koch others m drew however identify particular paragraph said prepared response mr kane account conversation mr barrie ground 4 freelancer claim cost also unsupportable reason also find freelancer making claim constitutes unreasonable act purpose 570 2 b fw act ground 5 6ms drew assessed additional cost covered ground 5 6 nil claim therefore also unsupportable reason freelancer making claim also constitutes unreasonable act purpose 570 2 b fw act ground 7 discoverythe cost generating event covered ground 7 freelancer responding call production document made 20 september 2017 document described paragraph 45 therespondent outline submission cost ground freelancer claim mr kane calling document unreasonable u ltimately applicant relied small portion vast array document sought call suggest unreasonableness whether mr kane call document reasonable depends whether legitimate forensic purpose calling question determined reference extent document produced tendered evidence turn whether document apparent relevance issue proceeding freelancer submit document called apparent relevance issue proceeding part freelancer claim therefore also unsupportable reason also find freelancer making claim constitutes unreasonable act purpose 570 2 b fw act conclusioneach freelancer claim cost unsupportable follows application cost must dismissed mr kane claim costsmr kane claim freelancer application cost made without reasonable cause vexatiously also claim freelancer application cost whole constituted unreasonable act mr kane submits outset freelancer cost brought punish harass mr kane freelancer application maintained character mr kane relies extravagant allegation contained inthe application case costswhich respondent established disparity amount freelancer claim incurred result unreasonable conduct mr kane cost incurred bringing application satisfied freelancer filed application case cost punish mr kane particularly find freelancer commenced application case cost punish mr kane least substantially included mr barrie respondent proceeding apparent number matter first itsapplication case cost freelancer mr barrie claimed joinder mr barrie personally respondent vexatious without reasonable cause 30 calculated without proper reason embarrass harass pursued collateral purpose proper conduct proceeding 31 second theapplication case costscontains extravagant unparticularised allegation mr kane freelancer mr barrie asserted mr kane made effort mediate reasonable solution stop wasting court time noting 32 act cherish allow employee like platform nursery creche sic cry room aggrieved people irritated life cruel randomness continue agitating lost cause emotional disordered purpose numerous example infect transcript tainted evidence irresponsible evidence attempted tendered feather weight gravity litigation convincing basis inclusion evidence first place established 33 mr kane affidavit evidence counsel cross examination peppered salacious material evidentiary weight calculated embarrass mr barrie another employee implying drug use conveying sexual innuendo 34 mr kane deliberately took company information could condoned way even advice counsel heft theft cannot painted self protection gyration game playing counsel 35 mr kane straw man discontent lot life exercising grace conducted beginning end wrongly victim prepared point finger anyone without thought thought given wagged finger malice 36 third freelancer mr barrie applied order cost based theapplication case costsclaimed vexatious proceeding mr kane brought mr barrie circumstance mr barrie incurred cost relation proceeding suggests purpose freelancer mr barrie applying cost obtain order cost purpose indemnifying mr barrie loss may suffered incurring cost defending claimed vexatious proceeding punish mr kane brought proceeding fourth theapplication case costsapplied respondent cost proceeding application bound fail many matter respondent relied defence decided determination matter constituted significant proportion proceeding fact immediately recognised respondent pointed mr hanby direction hearing 20 june 2018 indicates respondent given thought whether would reasonably entitled claim order 570 fw act turn indicates purpose bringing claim cost punish mr kane oral address mr waterstreet counsel freelancer said bore responsibility theapplication case cost may nothing suggest theapplication case costswas drawn filed served accordance instruction respondent given freelancer public company mr barrie chief executive officer inference available drawn draw freelancer mr barrie knew content theapplication case cost authorised lawyer file serve agreed author briefed appear hearing application cost mr waterstreet also submitted theapplication case cost form ambit claim ambit claim based whole material available rather entry point cost statement suggest deciding apply order cost respondent time filed theapplication case coststurn mind requirement 570 fw act particular requirement 570 2 b mr waterstreet submitted respondent recognised mr barrie right claim cost freelancer could reasonably claim order relation cost proceeding freelancer application cost proceeded normally party joined issue evidence given appears mr waterstreet intended convey freelancer sought recover cost reasonably arguable case recover 570 act mr waterstreet intended convey accept find intention animated respondent intention file theapplication case costscontinued throughout course application including mr barrie acknowledged right claim order cost freelancer accepted could reasonably claim order cost incurred proceeding first one alleged unreasonable act mr kane freelancer relied based finding adverse mr kane made earlier reason already noted however fact court make adverse finding party necessarily indicate party acted unreasonably maintaining position determined adversely party second freelancer identified claimed unreasonable act mr kane attempted determine whether incurred cost relation act made apparent email m drew sent 15 august 2018 already referred m drew discus particular methodology seeking identify cost incurred particular act omission 37 third relation ground 5 6 cost freelancer claim m drew unable ass schedule cost ass cost indemnity basis relation ground 2 7 m drew able ass schedule cost fourth already found freelancer claim cost unsupportable reason freelancer making claim constituted unreasonable act purpose 570 2 b fw act even find freelancer intention bringing maintaining application case cost punish mr kane already found freelancer claim cost unsupportable reason claim cost constitutes unreasonable act would render freelancer entire application cost unreasonable act purpose 570 2 b fw act reason cost mr kane incurred consequence freelancer applying cost cost would open order freelancer pay mr kane satisfied appropriate make order even incorrect finding application cost whole constitutes unreasonable act aspect proceeding cost freelancer engaged unreasonable act least includes cost thrown away freelancer abandonment ambit claim direction hearing 20 june 2018 cost thrown away direction hearing 27 july 2018 freelancer complied previous direction made assessment mr kane costsmr kane sought ass cost basis schedule cost mr kutasi affidavit 21 october 2018 assessed cost 27 048 68 m drew affidavit made 22 october 2018 assessed cost 16 640 difference two assessment finding difference follows mr kane claim advocacy loading 149 50 direction hearing 20 june 2018 item 12 whereas m drew would allow allowed certified reasonable employ advocate opinion reasonable mr kane retain advocate appear given breadth nature allegation made application case cost including allegation theft direction hearing 27 july 2018 mr kane claim 1 867 item 3 interim summary hearing 305 short mention item 13 152 50 item 12 advocacy loading m drew would allow 299 item 13 schedule cost stood 4 august 2018 given 27 july 2018 direction hearing appropriate allow mr kane claim anything item 3 allow however 299 item 13 stood 4 august 2018 reason already given advocacy loading 149 50 direction hearing 22 august 2018 mr kane claim 1 867 item 3 interim summary hearing 305 short mention item 13 m drew would allow 305 agree m drew propose allow 305 hearing 5 october 2018 mr kane claim 1 867 item 3 interim summary hearing 1 120 item 13 half day hearing 560 item 2 advocacy loading m drew disagree claim propose allow hearing 17 october 2018 mr kane claim 1 867 item 3 interim summary hearing 1 120 item 13 half day hearing 560 item 2 advocacy loading m drew disagree claim propose allow mr kane claim 6 728 item 6 preparation final hearing one day matter m drew would allow say item 6 applies final hearing hearing cost m drew would allow however 1 867 agree propose therefore allow 1 867 hearing 23 october 2018 mr kane claim 305 item 9 final hearing cost attendance solicitor 2 241 item 13 full day hearing 1 120 50 item 12 advocacy loading m drew disagree claim propose allow mr kane claim cost transcript hearing 20 june 27 july 22 august 5 october 17 october 2018 m drew would allow transcript hearing 20 june 2018 opinion reasonable mr kane obtain transcript hearing hearing 17 october 2018 therefore allow mr kane claim cost transcript hearing hearing 17 october 2018 mean propose disallow 1 072 91 cost transcript 17 october 2018 namely therefore ass cost mr kane incurred consequence application respondent made 17 371 77 given mr barrie withdrew application cost shortly 20 june 2018 appropriate order freelancer pay cost dispositioni propose order respondent application case cost dismissed freelancer pay mr kane cost application set amount 17 371 77 certify preceding sixty 60 paragraph true copy reason judgment judge manousaridisassociate date 27 september 2019 1 kane v freelancer international pty ltd anor 2018 fcca 933 2 reason judgment assume familiarity earlier reason 3 respondent outline submission cost 11 quoting fromconstruction forestry mining energy union v clarke 2008 fcafc 143 29 4 respondent outline submission cost 11 quoting fromcouncil kangan batman institute technology education v australian industrial relation commission 2006 fcafc 199at 60 5 respondent outline submission cost 12 6 2008 fcafc 143 29 reference omitted full court considereds 824 2 theworkplace relation act 1996 cth predecessor 570 2 fw act 7 respondent outline submission cost 17 8 respondent outline submission cost 18 9 respondent outline submission cost 19 10 respondent outline submission cost 23 11 filed applicant 8 december 2016 12 respondent outline submission cost 29 13 respondent outline submission cost 31 34 14 respondent outline submission cost 35 37 15 respondent outline submission cost 38 16 respondent outline submission cost 41 44 17 respondent outline submission cost 46 18 exhibit b page 1 192 19 exhibit c page 1 20 exhibit c page 12 21 kane v freelancer international pty ltd anor 2 2018 fcca 3021 22 affidavit l drew 21 08 2018 10 23 affidavit l drew 28 08 2018 5 24 respondent outline submission cost 21 25 respondent outline submission cost 19 26 aucare dairy aust pty ltd v huang 4 2019 fca 1187 davy j 27 1993 fca 536 1993 46 fcr 225 page 222 224 1993 fca 536 24 28 respondent outline submission cost 24 25 29 respondent outline submission cost 28 30 application case cost 2 31 application case cost 3 32 application case cost 6 33 application case cost 7 34 application case cost 11 35 application case cost 14 36 application case cost 17 37 exhibit c page 1 |
Northern Business Communications re Northern Business Communications Enterprise Agreement 2012 [2012] FWAA 5862 (12 July 2012).txt | northern business communication northern business communication enterprise agreement 2012 2012 fwaa 5862 12 july 2012 fair work australiadecisionfair work act 2009s 185 enterprise agreementnorthern business communication ag2012 5734 northern business communication enterprise agreement 2012northern territorycommissioner jonesmelbourne 12 july 2012application approval northern business communication enterprise agreement 2012 1 application made approval enterprise agreement known northern business communication enterprise agreement 2012 agreement application made pursuant tos 185of thefair work act 2009 act made northern business communication pty ltd agreement single enterprise agreement 2 satisfied requirement ofss 186 187and188as relevant application met 3 agreement approved accordance withs 54 operate 19 july 2012 nominal expiry date agreement 11 july 2016 commissionerprinted authority commonwealth government printer price code c ae895291 pr526153 |
Fogarty and Comcare [2007] AATA 2002 (30 November 2007).txt | fogarty comcare 2007 aata 2002 30 november 2007 fogarty comcare 2007 aata 2002 30 november 2007 last updated 3 december 2007administrative appeal tribunaldecision reason decision 2007 aata 2002administrative appeal tribunal a2006 001general administrative division relorraine fogartyapplicantandcomcarerespondentdecisiontribunalmr webb memberdate30 november 2007placecanberradecisionthe decision review set aside signed mr webb membercatchwordscompensation rehabilitation following compensable injury rehabilitation program graduated return work program determination amend program requirement regard relevant factor applicant attitude deteriorating medical condition relevant medical information properly taken account decision set asidesafety rehabilitation compensation act 1988ss 4 36 37 38 40 41 41are finch telstra corporation limited 1998 aata 13130mcguiness v comcare 2007 fmca 1486re peek comcare 2007 aata 1462r v toohey ex parte meneling station pty ltd 1982 hca 69 1982 158 clr 327department defence v fox 1997 24 aar 171comcare v chang 1996 24 aar 120reasons decision30 november 2007mr webb memberlorraine fogarty injured employment cultural facility corporation australian capital territory claimed paid compensation 1 commenced rehabilitation program involved graduated return work approved treating doctor due course rehabilitation program return work plan amended corporation 2 mr fogarty unhappy amendment asked matter reconsidered comcare decision amend program affirmed 3 reviewable decision subject proceeding note passing comcare applied matter dismissed submitting application frivolous vexatious practical effect could result amendment question concern specific period 2005 tribunal rejected comcare application accepted mr fogarty submission amendment may going effect upon health rehabilitation 4 thus matter proceeded factsthe relevant fact follow mr fogarty suffered mental injury employment corporation 1 october 2003 claimed rehabilitation compensation 5 accepted comcare 30 october 2003 deemed injury date 15 september 2003 6 mr fogarty certified unfit work 4 week period dr v joseph treating general practitioner note passing issue taken evidence tendered concerning status corporation chief executive relevant employee purpose ofpart iiidivision 2 3 act proceed basis chief executive corporation rehabilitation authority 7 22 october 2003 mr fogarty signed graduated return work plan 8 accept plan rehabilitation program purpose ofpart iiidivision 3 act seere finch telstra corporation limited 1998 9 approved rehabilitation provider donna trevenor associate nominated contact m olivia wilson psychologist m wilson provided initial need assessment report 22 october 2003 setting history mr fogarty injury matter noteworthy m wilson refers involvement dr joseph mr fogarty treating general practitioner time plan covered period 21 december 2003 also signed m wilson mr damien fox mr fogarty nominated case manager plan consistent dr joseph medical certificate dated 23 october 2003 10 mr fogarty commenced plan 3 day per week upgraded 4 day per week 16 december 2003 11 however mr fogarty encountered difficulty plan return full hour corporation 12 9 february 2004 certified fit work 3 day per week suitable employment outside corporation 13 6 february 2004 plan amended extended 31 may 2004 14 mr fogarty mr fox m wilson signed amended plan amended plan consistent medical certificate issued dr joseph dr rosie yuille general practitioner 15 8 march 2004 mr fogarty commenced graduated return work placement department health 16 however mr fogarty complained increased symptom stress anxiety return full duty 30 april 2004 dr yuille certified mr fogarty unfit work 17 1 september 2004 mr fogarty mr fox m wilson signed new graduated return work plan involving placement act assembly 18 appears plan approved dr yuille 19 mr fogarty achieved full time hour experienced increased symptom emotional physical stress 20 certified unfit work 3 december 2004 21 10 february 2005 22 remained subject medical restriction 23 plan closed 9 march 2005 24 3 march 2005 graduated return work plan signed mr fogarty m debbie maher case manager place mr fox m wilson 25 plan amended agreement consistent dr yuille medical certificate 26 3 march 2005 27 plan amended 9 march 2005 28 amended 21 june 2005 29 expected end date plan 31 july 2005 30 note mr fogarty m wilson signed amendment 20 may 2005 following consultation dr yuille 31 m wilson reported april 2005 mr fogarty rehabilitation process may take 6 12 month enhanced external pressure hasten quickly pace mr fogarty belief manage 32 20 june 2005 dr yuille certified mr fogarty fit continue modified duty 10 hour per week appropriate finance duty aso 5 level available 33 27 july 2005 dr yuille certified mr fogarty unfit work 27 29 july 2005 would fit continue modified duty 10 hour per week 1 12 august 2005 34 appears mr fogarty commenced consulting dr catherine schmidli general practitioner time dr yuille available dr schmidli dr yuille practice 3 august 2005 dr schmidli certified mr fogarty unfit work 3 15 august 2005 35 10 august 2005 mr fogarty attended medical review dr schmidli m jane mile case manager src solution 36 mr fogarty unhappy outcome review medical certificate dr schmidli dated 12 august 2005 37 however doctor certified mr fogarty level fitness work time 15 august 2005 dr ross bill general practitioner certified mr fogarty presently unfit work would fit return modified duty 16 august 2005 38 17 august 2005 mr fogarty formalised application leave 27 september 2005 19 october 2005 care daughter law 39 mr fogarty previously discussed intention take carer leave m mile concerned leave application would approved unless increased hour work 40 appears mr fogarty concern arose result meeting m mile 28 july 2005 41 certified unfit two week dr schmidli 15 august 2005 dr bill reported believe mr fogarty increase hour 10 hour per week spread 2 day duty carer leave granted 42 18 august 2005 m rachael mcmahon mr fogarty treating psychologist reported would highly concerned mr fogarty psycho social well carer leave denied 43 19 august 2005 m mile informed m susan bell mr fogarty work placement supervisor recreation planned leave generally approved period graduated return work rehabilitation programme discussed prospect mr fogarty choosing make work time week 44 mr fogarty case may chose sic work monday time friday wednesday morning prior surgery 45 mr fogarty scheduled undergo colonoscopy procedure 1 september 2005 prospectively certified unfit 31 august 2005 2 september 2005 46 appears m mile concerned based current work plan mr fogarty demonstrated sustainable pattern attendance work duty prior requested leave end september even level 10 hour per week mr fogarty reported study component challenging continues attend study regularly sought leave study actively seeking increase study load prior september absence 47 26 august 2005 m wilson reported m mile reported prepared approve carer leave without assessing would hinder return work progress toward return work goal closer time 48 m mile required give evidence examined matter 17 august 2005 m mile provided mr fogarty draft amendment previously amended graduated return work plan 49 19 august 2005 m fogarty responded draft amendment suggested change 50 among matter mr fogarty took exception inclusion requirement concerning medical certification unless certified medically unfit attend undertake task duty associated study work trial e 6hpw diploma gov fin mngmt 10 hpw host employer 51 m mile responded day accepting mr fogarty suggestion pointing rehabilitation plan developed line medical certification detail fitness participate 52 22 august 2005 dr bill referred mr fogarty dr matias psychiatrist treatment certified unfit work 29 august 2005 53 25 august 2005 mr john wick chief financial officer corporation determined amend mr fogarty amended graduated return work plan 54 m wilson m bell signed amendment mr fogarty unfit work time term amendment set employee action outcome expected period 1 august 2005 23 september 2005 55 26 august 2005 m wilson recommended return work goal undertaking 12 week placement carrying finance duty amended 23 september 2005 mr fogarty difficulty attending work due stress associated perceives pressure new case manager jane mile carer leave yet approved asked sign return work plan absent work certified unfit work m fogarty concerned sign agreeing give carer leave may accused non compliance take personal leave 56 mr fogarty provided copy signed determination amending return work plan 1 september 2005 57 31 august 2005 dr may matias treating psychiatrist certified mr fogarty presently unfit work 22 september 2005 58 5 september 2005 dr bill wrote believe mr fogarty fit return work either would suggest pending psychiatrist review commit return work plan signing rtw agreement deferred 59 considerationthe issue presently determination whether amendment made mr fogarty rehabilitation program 25 august 2005 properly made reasonable comcare say amendment properly made comcare submission amendment consistent advice mr fogarty treating doctor diminish employment right entitlement relation leave pursuant cultural facility corporation enterprise bargaining agreement force furthermore comcare say amended rehabilitation plan subject medical restriction including event mr fogarty certified unfit work significant proportion period amended rehabilitation plan force comcare submission reasonable provision comcare say issue concerning failure comply amended rehabilitation plan mr fogarty note amended plan completed 2005 practical effect flow matter decided mr fogarty favour thus comcare asserts amended plan reasonable appropriate decision review affirmed appear agree thesafety rehabilitation compensation act 1988 rehabilitation authority defined sub 4 1 may make determination injured employee undertake rehabilitation program defined sub 4 1 may make arrangement provision program approved program provider program provider approval pursuant topart iii division 2 making determination rehabilitation authority required regard certain matter set sub 37 3 written assessment given undersubsection 36 8 b reduction future liability pay compensation program undertaken c cost program improvement employee opportunity employed completing program e likely psychological effect employee providing program f employee attitude program g relative merit alternative appropriate rehabilitation program h relevant matter required decision maker shall regard matter set sub 37 3 including relevant matter determining rehabilitation program thus evidence concerning matter must taken account given appropriate weight mcguiness v comcare 2007 60 necessary give weight fundamental element gibbs cj inr v toohey ex parte meneling station pty ltd 1982 61 regard particular matter adequate sufficient merely nominal token regard consistent compliant statutory obligation imposed upon decision maker sub 37 3 act department defence v fox 1997 62 present task therefore review comcare decision pursuant sub 38 4 act reconsideration primary determination made pursuant sub 37 1 act purpose necessary consider evidence temporal frame order determine whether statutory obligation primary decision maker satisfied whether determination properly made time comcare v chang 1996 63 note passing rehabilitation authority required comply guideline issued comcare sub 41 1 certain circumstance may delegate power underpart iiidivision 3 relevant employer required take reasonable step provide injured employee suitable employment assist employee find employment 40 employee refuse fails undertake rehabilitation program without reasonable excuse employee right act may suspended sub 37 7 thus seen determination rehabilitation program respect injured employee connotes requirement participation employee event failure comply without reasonable excuse may lead suspension employee compensation right entitlement act mr fogarty agree amendment graduated return work plan 25 august 2005 took exception requirement comply amended plan unless certified medically unfit perceived requirement entrapment intended preclude taking leave care daughter law view plainly expressed m mile satisfied mr fogarty view draft amendment taken account m mile mr wick matter determined however order properly consider mr fogarty attitude give appropriate weight necessary regard relevant matter including set sub 37 3 g accept desirability assisting mr fogarty return full capacity full employment considered stated object graduated return work plan however matter concerning relative merit rehabilitation plan likely employment opportunity mr fogarty may result amended plan cost reduction future liability pay mr fogarty compensation properly regard reasonably satisfied possible even likely draft amendment discussed dr schmidli early stage 12 august 2005 dr schmidli wrote m mile said ask see scope increase 15 hour per week prior 27 september certainly potential mean certainty situation need reviewed mr fogarty back 10 hour week 3 4 week think extra pressure including 3 day per week plan stage likely counterproductive 64 subsequently mr fogarty obtained medical treatment dr bill contrary mr wick assertion t76 folio 153 scant evidence dr bill view sought obtained relation proposed amendment plan nevertheless evidence m mile wrote dr bill 18 august 2005 65 sent copy amended plan 30 august 2005 66 22 august 2005 dr bill expressed opinion proposed amendment mr fogarty return work plan principal precipitant mr fogarty deteriorating mood pushing new case manager factor 67 note dr bill recommended deferring finalisation return work plan amendment psychiatric review mr fogarty dr matias 31 august 2005 recommendation communicated short report dated 5 september 2005 nevertheless dr bill referred mr fogarty dr matias 22 august 2005 plainly concerned deteriorating mood psychological condition time 68 dr bill consulted proposed amendment plan prior 25 august 2005 view could taken account happened evidence reveals dr bill certificate dated 15 august 2005 provided m mile 18 august 2005 69 subsequently 22 august 2005 dr bill certified mr fogarty unfit work referred psychiatrist dr saboisky dr matias treatment m mile mr wick regard certificate dr yuille dr schmidli concerning period prior 12 august 2005 dr bill certificate report dated 15 august 2005 proposed amendment concerning hour duty consistent material however resolve matter comcare evidence m mile mr wick regard dr bill medical certificate dated 22 august 2005 two element mr fogarty case properly taken account determination made mr fogarty deteriorating psychological state time potential effect health proposed amendment time application leave family difficult period resolved mr fogarty perception threat plain enough history mr fogarty case medical evidence time mr fogarty susceptible stress anxiety m wilson recommended april 2005 rehabilitation enhanced external pressure hasten quickly pace mr fogarty belief manage 70 dr bill m mcmahon clearly expressed concern likely effect mr fogarty health denying application carer leave issue mr fogarty application carer leave discussion subject m mile one view side issue related determination question satisfied particular requirement determination mr fogarty participate plan unless certified unfit provides powerful nexus proposed amendment application carer leave relevant matter consider relation amendment rehabilitation program mr fogarty perception effect requirement upon employment right entitlement may good law may product injured mind nevertheless perception interpretation particular requirement must viewed context actually occurred process leading amendment rehabilitation plan appears prior 25 august 2005 mr fogarty perception particular term amendment specifically participate program unless certified unfit significant adverse effect fitness capacity participate rehabilitation program 3 august 2005 dr bill m mcmahon likely effect mr fogarty psychological condition clearly telegraphed dr bill 15 august 2005 m mcmahon 18 august 2005 also apparent mr fogarty condition deteriorated 28 july 2005 meeting m mile matter concerning leave rehabilitation program discussed extent certified unfit work 3 15 august 2005 dr schmidli 15 august 2005 dr bill 22 29 august 2005 dr bill 31 august 2005 22 september 2005 dr matias relevant matter decision maker regard pursuant sub 37 3 e g h persuaded proper regard matter regard particular certificate dr yuille dr schmidli dr bill whereby mr fogarty certified fit participate program alone sufficient regard must also certificate dr schmidli dr bill whereby certified unfit certificate considered matter considerable doubt appears regard merely cursory token nature consistent statutory obligation decision maker taken evidence relative merit alternative proposed amendment considered thus appears alternative considered comcare submission proposed amendment intended reduce mr fogarty right entitlement corporation enterprise bargaining agreement would simple matter remove particular requirement concerning participation unless mr fogarty certified unfit proceed basis relevant provision agreement force allay mr fogarty perception unfairness entrapment relation application leave alternative rehabilitation program relative merit decision maker taken account weighed evidence matter considered dr bill consulted timely manner proposed amendment statutory obligation decision maker may satisfied mr wick would benefit better information concerning likely improvement mr fogarty prospect employment completing program issue concerning cost program prospective reduction future liability pay compensation may weighed happened period amended program 1 august 2005 23 september 2005 mr fogarty certified unfit two brief exception 1 2 august 2005 16 22 august 2005 25 august 2005 determination made mr fogarty psychological condition deteriorating certified unfit time remained unfit return program december 2005 little good purpose served arranging providing rehabilitation program injured employee incurring cost involved employee fit undertake program unfortunately appears happened case likelihood mr fogarty participating completing amended program prospect positive effect upon future employment opportunity well reduction future liability pay compensation properly regard matter considered current medical evidence taken account given appropriate weight change mr fogarty medical condition taken account especially history susceptibility stress anxiety suffered increased incapacity result course plainly protracted effort rehabilitate injury thus conclusion reasonably satisfied amendment mr fogarty rehabilitation program determined 25 august 2005 properly made statutory obligation corporation regard matter set sub 37 3 complied thus decision review set aside event issue occurred 2005 matter progressed substantially since time substitute decision made place one set aside certify 39 preceding paragraph true copy reason decision herein mr webb membersigned signed jane gribbleassociatedate hearing 8 november 2007date decision 30 november 2007representative applicant greg fogarty lorraine fogartycounsel respondent andrew dillonsolicitor respondent justina novac carolyn scarraustralian government solicitor 1 t3 2 t66 3 t81 4 lorraine fogarty comcare 2007 aata 1299 5 t3 6 t10 7 notesafety rehabilitation compensation act 1988 4a meaning rehabilitation authority commonwealth authority entity sub 4 1 8 t5 9 aata 13130 200 10 t7 11 t12 t14 t11 folio 31 refers 12 t11 refers 13 t15 14 t24 15 t15 t16 t17 refers 16 t22 17 t18 18 t30 t31 19 t32 t33 20 t40 folio 82 21 t34 t35 22 t38 23 see t36 t37 t39 24 t48 25 t41 26 t46 27 t47 28 t45 29 t48 folio 107 signed last debbie maher 21 june 2005 30 t47 folio 101 31 t48 folio 107 t49 refers 32 t49 folio 109 33 t50 34 t51 t52 35 t53 36 t67 folio 139 refers 37 t55 38 t58 39 t59 t75 refers 40 t60 refers 41 exhibit a4 42 t57 43 t60 folio 123 44 t63 folio 127 45 t63 folio 126 46 exhibit a5 document lf24 t63 folio 126 127 47 t63 folio 126 48 t67 folio 139 49 exhibit r2 refers 50 t61 51 t66 folio 136 52 t62 folio 125 53 exhibit a2 lf l 3 p144 54 t66 folio 137 55 t66 folio 136 56 t67 folio 141 57 t71 folio 145 refers 58 t68 also see report exhibit a5 document lf34 59 t69 folio 143 60 fmca 1486 86 61 1982 hca 69 158 clr 327 333 62 24 aar 171 176 63 24 aar 120 125 64 applicant document lf22 65 exhibit a5 document lf28 66 exhibit a5 document lf30 67 exhibit a5 document lf27 document lf33 refers 68 exhibit a5 document lf 34 p2 refers 69 exhibit a5 document lf5 lf28 70 t49 folio 109 |
Pace v Hachlica (Residential Tenancies) [2018] VCAT 257 (21 February 2018).txt | pace v hachlica residential tenancy 2018 vcat 257 21 february 2018 last updated 1 march 2018victorian civil administrative tribunalresidential tenancy divisionresidential tenancy listvcat reference r2017 43845 r2017 44267catchwordsclaim landlord 417 part bond unpaid rent breach fixed term tenancy agreement claim tenant 416 210 bond compensation rented premise unfit human habitation due noise applicant landlordspietro pace josephine pacerespondent tenantyvonne hachlicawhere heldmoorabbinbeforemember k metcalfhearing typehearingdate hearing11 january 2018date order reasons21 february 2018citationpace v hachlica residential tenancy 2018 vcat 257ordersr2017 43845the tribunal find tenant vacated rented premise 8 december 2017 rent 1 673 per calendar month paid 27 november 2017 rent owed date vacation 605 bond 1 673 landlord entitled refund bond unpaid rent sum 605 tribunal order directs residential tenancy bond authority shall pay landlord 605to tenant 1 068r2017 44267for reason provided writing application dismissed k metcalfmemberappearances landlordspeter pacejosephine pacejared hutchins agent tenantyvonne hachlicaangela hachlicapeter hachlicareasonsthese two related claim relation rented premise aspendale garden first claim landlord portion bond paid landlord unpaid rent cleaning expense undersection 417of theresidential tenancy act 1997 rta second claim tenant full refund bond compensation undersections 416and210of rta basis rented premise fit human habitation tenant could clearly hear neighbour time matter heard together moorabbin end hearing reserved decision landlord claim r2017 43845the landlord tenant entered 12 month fixed term tenancy agreement 10 august 2017 commencement date 28 august 2017 termination date 27 august 2018 tenant vacated rented premise 8 december 2017 bond 1 673 rent 1 673 per calendar month paid 27 november 2017 landlord application claim 11 day rent 605 cleaning cost 120 claim cleaning cost pursued hearing landlord made claim relation breach fixed term tenancy agreement landlord evidencethe landlord represented agent jarrod hutchins taken previous agent haylee lavelle provided copy ingoing condition report outgoing photo copy extensive email m lavelle tenant evidence tenant lived rented premise three month moving 8 december 2017 stated reason premise unfit human habitation agent evidence rented premise semi detached unit 40 year age evidence stage tenant advise m lavelle premise required urgent non urgent repair make application undersection 73orsection 75of rta landlord conduct repair evidence also tenant never made application tribunal undersection 209of rta requiring landlord provide quiet enjoyment agent evidence m lavelle first made aware tenant alleged noise issue 6 november 2017 whereupon followed owner corporation 13 november 2017 explained tenant landlord control neighbour tenant dispute evidence agent evidence despite action tenant sent email m lavelle 27 november 2017 stating would vacating rented premise 8 december 2017 demanding released lease claiming 7 092 compensation tenant evidencethe tenant represented hearing former husband also gave sworn evidence tenant said left rented premise unfit human habitation insulation roof wall result rented premise excessively noisy noise neighbour could clearly heard time tenant conceded made claim landlord requiring repair landlord provide quiet enjoyment rented premise findingsthe party entered fixed term tenancy agreement number way tenant could terminate agreement tenant could prior entering possession provided landlord notice 226 rta terminating fixed term tenancy agreement ground property fit human habitation tenant gave notice entering possession lived rented premise three month vacating tenant could applied tribunal undersection 234for reduction fixed term tenancy agreement unforeseen change tenant circumstance tenant made application tenant could provided landlord notice requiring repair undersection 73or75of rta gave notice tenant could provided landlord notice undersection 208requiring landlord comply obligation provide quiet enjoyment gave notice tenant could given landlord notice intention vacate undersection 238of rta basis premise unfit human habitation gave formal notice party could agreed end tenancy particular date tenant gave landlord option instead announced would vacating 8 december 2017 subsequently vacated tenant avail possible way terminating tenancy agreement rta tenant complied rta accordingly find tenant breached fixed term tenancy agreement landlord claim loss result breach tenant fixed term tenancy agreement 11 day rent balance period tenant remained rented premise landlord entitled paid amount find tenant responsible 11 day rent sum 605 tenant entitled balance bond sum 1 068 order made accordingly tenant claim r2017 44267tenant evidencethe tenant claim refund bond full plus refund rent paid tenancy plus moving cost internet connection loss day work tafe making total amount claimed hearing 8 772 tenant claim made basis rented premise unfit human habitation noise tenant conceded obtained advice possible way approach concern noise landlord tenant evidence emailed m lavelle 27 november 2017 saying would vacate rented premise 8 december 2017 demanding released lease nota lease break feel inappropriate occupy property due high level noise insulated resulting everyday noise sneezing coughing laughter arguing etc heard neighbour sic entire property insulation present roof wall failure deliver quiet enjoyment due reason stated building property incomplete general disrepair property tenant evidence m lavelle responded email 29 november 2017 seeking detail insulation first agency owner notified owner even given opportunity rectify tenant evidence m lavelle sought similar clarification claim building incomplete general disrepair tenant evidence responded saying stressed deal situation nominating former husband deal behalf tenant application refers claim deterioration health evidence provided hearing support claim tenant provided one page report fraser kirchner kirchner construction pty ltd dated 24 november 2017 support claim insulation roof space wall brick parting wall incomplete report concludes opinion acoustic thermal insulation entirely inadequate therefore allowing even slightest noise become amplified within roof wall space acoustic noise people voice passing traffic evident excessive evidence mr kirchner qualification expertise hearing could questioned tenant produced recording mobile phone whilst difficult hear evidence recording made inside rented premise distance party wall possible hear voice tenant evidence voice neighbour tenant provide expert report relation noise level mr hachlica evidence musician 30 year expert reverberation referred rented premise reverb box tenant want refund bond 1 673 repayment rent paid tenancy 5 019 moving cost 400 internet connection 300 loss day work 480 loss day tafe daughter 900 making total 8 772 evidence provided relation cost claimed landlord evidencethe landlord deny premise ever unfit human habitation agent provided 14 page report martin lilley jim building inspection dated 23 december 2017 report concluded time inspection unit good condition age built brick roof void go way underside rafter suspected fire rayed sic insulation brick roof tile rafter adjoining property would say would met building code built 1990s signed building surveyor section insulation missing light installed protect fire covered insulation replaced area insulation void part regulation back house built keeping heat dwelling noise one state property suitable live noise complaint without getting property properly tested correct equipment person trained using equipment statement epa website stating unreasonable depend live resident living apartment attached house expect hear noise normal activity neighbouring home evidence mr lilley qualification expertise hearing could questioned report recommends installing insulation landlord provided email landlord peter pace carpenter 13 december 2017 saying believe small amount roof insulation missing willing replace acoustic insulation landlord provided reply carpenter day noting installation would difficult landlord also provided email owner corporation manager managing property since 2011 noting resident rented premise complained excessive noise findingsthe tenant claim premise unacceptably noisy duration tenancy result unfit human habitation tenant bear onus proof establish claim term unfit human habitation defined rta held court include unfitness due structural defect unfitness reason regardless cause unfitness rented premise semi detached unit tenant would aware property likely noisier free standing property tenant chose proceed tenancy agreement nonetheless tenant provided expert report relation noise level tenancy tenant moved rented premise 28 august 2017 complain agent noise 6 november 2017 two month later property always noisy tenant claim could provided landlord notice section 208 rta requiring landlord rectify situation provide tenant quiet enjoyment rented premise stage serve notice tenant could also served landlord notice either section 73 75 requiring landlord conduct repair rectify situation concerning excess noise stage serve notice tenant provided building report dated 24 november 2017 saying insulation result rented premise noisy landlord unaware situation insulation tenant advised leaving tenant gave landlord opportunity rectify situation vacated rented premise tenant may found property unsuitable mean unfit human habitation previous tenant property complained noise tenant complain two month property 40 year old built relevant standard time landlord obliged provide insulation particular landlord demonstrated willingness improve property asked given opportunity tenant established breach rta landlord landlord done anything wrong contrary released tenant obligation fixed term tenancy agreement chose sign furthermore released tenant without penalty unreasonable request tenant pay rent period lived rented premise tenant established claim application dismissed k metcalfmember |
Review Applicant: Sajida Bibi Ali Farooq Visa Applicant: Amjad Farooq IRT Reference: N98_01320 #number 13289 [1998] IRTA 13289 (21 December 1998).txt | review applicant sajida bibi ali farooq visa applicant amjad farooq irt reference n98 01320 number 13289 1998 irta 13289 21 december 1998 immigration review tribunalstatement decision andreasons decisionirt reference n98 01320 13289 docreview applicant sajida bibi ali farooqvisa applicant amjad farooqtribunal michael radinsenior memberdate 21 december 1998place adelaide south australiadecision tribunal accordance withsection 349of themigration act 1958 remit application department direction amjad farooq meet relevant prescribed criterion grant subclass 100 spouse visa save except criterion relating public interest provision acceptable assurance support reason decisionon 15 june 1998 m sajida bibi ali farooq review applicant applied tribunal review decision made delegate minister immigration multicultural affair minister department immigration multicultural affair post islamabad 15 october 1997 refuse spouse amjad farooq visa applicant subclass 100 spouse visa enable migrate australia decision affirmed migration internal review office miro 31 march 1998 backgroundmr amjad farooq visa applicant born pakistan 16 december 1967 citizen country ordinarily resident spouse nominator review applicant sajida farooq also born pakistan 7 may 1968 mother five sibling continue reside sixth sibling life switzerland paternal uncle living australia review applicant lived australia since 1986 became permanent resident 1995 citizen 20 november 1996 visa applicant lodged completed application form 47 islamabad post seeking migrate australia spouse australian resident application accompanied relevant sponsorship form 40 signed review applicant visa applicant subsequently interviewed officer post report interview appears departmental file decision reviewon 15 october 1997 decision made islamabad post refuse visa applicant application subclass 100 spouse visa copy decision record attached letter notifying visa applicant reason refusal application subsequently review applicant made application migration internal review office miro sydney 1 december 1997 seeking review primary decision however 31 march 1998 primary decision affirmed responsible officer making following finding reason making decision include fact spouse know little inspite claim marriage arranged time actually occurred inspite fact related even though marriage may traditionally arranged accept would make effort find man would life partner would make effort find especially since marriage mean leaving home country travelling unknown country lifestyle know lack knowledge persisted even actually married allegedly spent time living together accept explanation discrepancy statement made arrangement made family member still find irregularity example spouse stated photograph taken wedding yet claim photograph taken two together curious give rise doubt marriage ceremony also noted limited evidence contact since return australia would expect contact apparently spent time together cast doubt upon claim made application necessarily shed suspicion two demonstrated plan future evidence shared dream hope activity interest telephone call could made anyone many relative pakistan event short duration consistent husband wife talking life future considered information find satisfied genuine continuing spousal relationship subsequently 15 june 1998 review applicant sought review previous decision making application immigration review tribunal new south wale registry relevant lawthe prescribed criterion class 100 spouse visa relevant time set inpart 100of schedule 2 themigration regulation 1994 far relevant present application criterion set follows subclass 100 spouse100 1 interpretation100 11 part intended spouse mean australian citizen australian permanent resident eligible new zealand citizen referred subclause 100 211 3 note eligible new zealand citizen guardian parent spouse defined inregulation 1 03 100 2 primary criterion note primary criterion must satisfied least one member family unit member family unit applicant visa subclass need satisfy secondary criterion 100 21 criterion satisfied time application100 211 1 applicant meet requirement subclause 2 3 2 applicant spouse australian citizen b australian permanent resident c eligible new zealand citizen note spouse includes de facto spouse see definition spouse inregulation 1 03 3 applicant meet requirement subclause applicant intends marry australian citizen ii australian permanent resident iii eligible new zealand citizen b intended marriage take place valid marriage purpose section 12 act note applicant applicant referred paragraph 100 211 3 marriage must taken place applicant granted visa subclass see clause 100 223 100 212 1 applicant applicant referred subclause 100 211 2 applicant sponsored applicant spouse turned 18 spouse b applicant spouse turned 18 parent guardian spouse turned 18 ii australian citizen b australian permanent resident c eligible new zealand citizen 2 applicant applicant referred subclause 100 211 3 applicant sponsored applicant intended spouse turned 18 intended spouse b applicant intended spouse turned 18 parent guardian intended spouse turned 18 ii australian citizen b australian permanent resident c eligible new zealand citizen 100 22 criterion satisfied time decision100 221 applicant continues satisfy criterion clause 100 211 100 222 sponsorship referred clause 100 212 approved minister still force 100 223 applicant applicant referred subclause 100 211 3 marriage referred subclause taken place 100 224 1 case applicant meet requirement subclause 100 211 2 applicant continues spouse australian citizen australian permanent resident eligible new zealand citizen applicant spouse time application 2 case applicant meet requirement subclause 100 211 3 applicant spouse intended spouse 100 225 applicant satisfies public interest criterion 4001 4002 4003 4004 4007 4009 100 226 applicant previously australia applicant satisfies special return criterion 5001 5002 5004 5006 5008 5009 100 227 requested minister assurance support relation applicant given accepted minister definition spouse relevant time contained inpart 1 15aas follows 1 15a 1 purpose regulation person spouse ofanother person 2 person married marriage recognised valid purpose act ii de facto spouse set subregulation 2 b minister satisfied 2 person mutual commitment shared life husband wife exclusion others ii relationship 2 person genuine continuing c minister satisfied 2 person living together ii living separately apart permanent basis 2 person de facto spouse another person person opposite sex ii married marriage recognised valid purpose act iii within relationship prohibited relationship purpose ofsubsection 23b 2 themarriage act 1961 b either person domiciled australia turned 18 ii neither person domiciled australia turned 16 3 forming opinion purpose paragraph 1 b c relation application visa subclass 100 801 820 831 minister must regard circumstance relationship including particular financial aspect relationship including joint ownership real estate major asset ii joint liability iii extent pooling financial resource especially relation major financial commitment iv whether one party relationship owes legal obligation respect v basis sharing day day household expense b nature household including joint responsibility care support child ii party living arrangement iii sharing responsibility housework c social aspect relationship including whether person represent people married de facto relationship ii opinion person friend acquaintance nature relationship iii basis person plan undertake joint social activity nature person commitment including duration relationship ii length time person lived together iii degree companionship emotional support person draw iv whether person see relationship long term one 4 forming opinion purpose paragraph 1 b c relation application visa subclass 100 801 820 831 minister may regard factor set subregulation 3 5 person living another person 6 month longer fact taken strong evidence relationship genuine continuing relationship shorter duration taken genuine continuing reason issue tribunal instance whether marriage entered visa applicant review applicant one recognised valid purpose themigration act whether marriage genuine continuing date application assessing question genuine continuing spousal relationship tribunal guided federal court decision minister immigration local government ethnic affair v dhillon full court federal court 1990 14 fcr 351 full court determining whether marriage genuine stated people enter marriage variety purpose motif hope anticipation possible classify purpose etc according may described community expectation necessarily inconsistent genuine marriage relationship entered one party view material benefit advancement example hope becoming eligible reside particular country true test would suggest test whether time matter decided said party mutual commitment shared life together husband wife exclusion others furthermore consideration need given cultural context background marriage take place example tribunal decision ofre tok irt decision 51 delivered 10 january 1991 stated tribunal assessing constitutes genuine continuing relationship cannot ignore multicultural variation marriage providing marriage comply themarriage act inlynham v director general social security 1983 52 alr 128at 131 per fitzgerald j stated task determining whether marriage genuine view important departmental officer tribunal charged task least take account norm peer group applicant way legislation fairly justly accommodated multi racial otherwise diverse society evidence findingsthe tribunal gave consideration relevant document file submitted part application matter including written submission prepared review applicant adviser review applicant also submitted copy correspondence passing visa applicant telephone account copy photograph miscellaneous documentation numerous written attestation provided person witnessed marriage couple period cohabitation together pakistan tribunal noted statement authored person claim living vicinity matrimonial home pakistan also provided tribunal consideration statement cultural context relevant matter person standing pakistani islamic community new south wale copy m farooq certificate australian citizenship dated 31 august 1998 also provided tribunal tribunal also available departmental file matter provided pursuant themigration act 1958 tribunal convened preliminary meeting telephone review applicant adviser 5 november 1998 subsequently review applicant request hearing convened tribunal sydney registry 10 december 1998 review applicant m sajida bibi ali farooq attended gave sworn evidence assisted adviser interpreter m farooq told tribunal born pakistan 7 may 1968 father passed away 1988 mother five sibling live present sibling living permanently switzerland close family australia uncle family resides confirmed entering australia 1986 order stay uncle unsure visa provided agreed tribunal however permanent residence granted 21 july 1995 regard approved special need relative given consistently provided assistance debilitated aunt year told tribunal regard uncle provides financial need close look six child household first cousin eldest 18 year youngest 7 year present live home studying addition review applicant maintains house undertakes domestic chore including shopping taking youngest child school receives form income never worked australia recently completed english language study basic course sewing told tribunal uncle work state rail aunt employed review applicant told tribunal returned pakistan september 1995 securing permanent residence stayed period nine month indicated purpose trip marry husband first cousin family always lived next door five six month age difference u grown together since childhood family agreed would marry became adult stated uncle facilitated arrangement travel mother request however uncle arranged marriage upon arrival pakistan september 1995 review applicant stayed mother sibling contact spouse australia permitted religion engaged someone case instance given family agreed would marry time young entitled personal one one contact must avoid intimate personal relation marriage way religion insists thing family particular strictly follow custom cultural ritual even arrived pakistan direct contact arrangement made family even though living next door marriage took place february 1996 party village religious ceremony conducted home presided muslim priest celebration small scale guest told tribunal regard either large small celebration depends family concerned however strictly follow religious practice video photograph permissible wedding party returned australia friend sent photo taken informally one produced husband know think misunderstood general practice people pakistan particularly village follow religion strictly still engage practice allow photo taken wedding others particularly big city follow practice anymore people know hired make video wedding family however traditional tribunal confirmed information interpreter present provided brief cultural testimony given familiarity regional cultural religious background review applicant family exchanged gift according review applicant wedding comprising jewellery clothes cost evenly shared family review applicant told tribunal wedding moved husband family next door soon marriage consummated shared bedroom return australia june 1996 initially planning stay longer bring husband back uncle called alarmed state sydney told aunt situation deteriorated operation doctor ordered spend four week bed uncle requested urgently return husband could follow later make application november 1996 review applicant see husband thereafter november 1998 spent two week pakistan occasion stayed sexual relation continued uncle paid airfare two visit couple communicated regularly mostly mail card occasional telephone contact exchange photo informally discussed starting family priority given husband settling australia finding work continue reside review applicant uncle aunt mr aish mohammad also gave sworn evidence born 2 april 1945 india lived australia 32 year citizen married child worked 30 year industrial chemist president islamic religious cultural association 300 member drawn many islamic country spoke persuasively tribunal normative arranged marriage still practiced bulk population pakistan elsewhere practice pronounced rural area often case cousin marry confirmed evidence direct contact personal intimacy allowed party marriage event occurs stated normally know lot even related way rely finding information third party although even discouraged sometimes see culture get know wedding includes form contact continues acceptable form cultural practice relation marriage confirmed family strictly forbid taking photograph wedding stated case marriage many year ago law forbidden taking photograph stated know respective family well told tribunal honourable people good honest doubt sincere marriage progress well mr muhammad chaudhry also gave sworn evidence uncle review applicant born india 20 april 1941 entered australia september 1971 visitor marrying obtained permanent residence 1977 citizen worked duty manager state rail new south wale 20 year currently earns 65 000 gross per annum supplement income rent obtained investment property six child marriage living home studying present owns house freehold review applicant niece daughter late brother told tribunal regard daughter confirmed arrived june 1986 visit application extend visitor visa granted overstayed illegal entrant application made regularise status basis special need relative ground provided assistance wife partially debilitated first application refused second granted became permanent resident 1995 citizen continued reside family provides financially continues considerable assistance wife look youngest child confirmed visa applicant first cousin regard told tribunal amjad farooq sajida husband son sister pakistan sajida daughter late brother course nephew niece respectively also first cousin common culture first cousin marry first knew arrangement late brother told visit pakistan 1985 buried father occasion two child would marry became adult informed decision taken relevant family member knew everyone else family however advice decision taken wait sajida gained residence australia occurred family pakistan proceeded arrangement paid fare look financially know marriage took place february 1996 returned june 1996 requested come back see wife unexpected operation time ordered bed rest month asked niece come back urgently help house aware wanted stay longer bring husband back however possible since communicating regularly letter telephone paid air fare pakistan last month stayed couple week tribunal also received evidence following statement prepared mr thanvi registered marriage celebrant content follows ref sajida bibi ali farooq n98 01320dear sir certify sajida bibi ali farooq 29 rotary street liverpool 2170 birth 07 05 1968 mr amjad farooq birth 16 12 1967 got married sahowala 132 rb dist faisalabad pakistan 23 02 1996 important note teaching holy quran saying beloved prophet muhammad peace upon permissible take picture shot movie exchanging engagement ring also important family strictly observe religious guideline never care outside cultural practice family personality different precedence prefer follow new trend vogue arrangement pledge instituted elder case wholeheartedly accepted consent bride groom inquiry welcomed please contact without hesitation thanks signed dated 06 12 1998 nazeerul hasan thanvi imam regd marriage celebrant n 19748 summary conclusionthe principal issue tribunal determine present case whether marriage entered m farooq partner pakistan february 1996 genuine continuing one issue determining genuineness question fact resolved evidence decision maker seere canangga irt decision 34 5 december 1990 respect well established law administrative tribunal must base decision evidence tends logically show existence non existence fact relevant issue determined implicit principal deane j theminister immigration ethnic affair v pochi 1988 1980 fca 85 4 ald 139at 160 requirement find material fact statutory tribunal must ordinarily based logically probative material requirement actual decision tribunal must relevant question fact issue ordinarily based finding material fact mere suspicion speculation matter ofbroussard v minister immigration local government ethnic affair 1989 19 ald 477 held evidence tribunal claim applicant nothing contradict claim tribunal may properly treat claim probative value however conflicting evidence tribunal may simply discount claim applicant rather must reach firm conclusion fact relevant decision latter point made theminister immigration local government ethnic affair v dhillon see page 9 10 issue genuineness respect marital relationship discussed length tribunal numerous matter includingbretag irt decision 238 29 july 1991 appeal bretag v immigration review tribunal another federal court 29 november 1992 andre williams irt decision 2630 23 september 1993 matter tribunal relied evidence provided party attempting determine whethermutual commitment shared life husband wife exclusion others existed relevant time present case evidence established applicant instance first cousin couple known since childhood result blood relatedness fact neighbour review applicant produced reliable evidence indicating manner entirely consistent traditional custom culture arrangement couple marry upon achieving adulthood entered still child tribunal satisfied basis understanding cultural practice region betrothal circumstance even person blood relatedness indeed common practice evidence also established settling australia securing residence review applicant reinstituted communication fiance ostensibly letter also subsequently telephone communication governed almost entirely principle relevant cultural ritual tribunal accepts regard appropriate couple develop level personal intimacy communication marriage documentation submitted confirms essentially genuine nature contact betrays lack detail substantive knowledge viewed western eye applying may termed normative western value betrothal pattern seems entirely unfamiliar perhaps unusual important understand however necessarily make le genuine legitimate imperative decision maker develop cognitive process level instinctively sensitive variety cultural practice relating betrothal judge practice yardstick entirely unfair respect matter ofre dachto irt decision 3621 31 march 1994 general term stress non anglo relationship evaluated term prevailing western standard may inevitably found wanting compared acceptable modern norm concept arranged marriage even party known remains alien modern western ethos however necessary nexus betrothal seems unfamiliar according anglo western custom non genuine marital relationship set many tribunal decision accepted implicitly process betrothal case involves ritualistic behaviour emphasis joining two family rather joining two individual individual accent relationship take precedence formal marriage commencement co habitation sexual relation find therefore cultural context surprising principal would confess lack knowledge uncertainty even display confusion fiancee life particularly relatively inexperienced dealing form rigorous interrogation unfamiliar circumstance also pertinent reflection tribunal matter ofre tok irt decision 51 delivered 10 january 1991 stated tribunal assessing constitutes genuine continuing relationship cannot ignore multicultural variation marriage providing marriage comply themarriage act matter oflynham v director general social security 1983 52 alr 128at 131 per fitzgerald j stated task determining whether marriage genuine view important departmental officer tribunal charged task least take account norm peer group applicant way legislation fairly justly accommodated multi racial otherwise diverse society prevailing authority relation assessment genuineness respect marriage matter ofdhillon full federal court held following people enter marriage variety purpose motif hope anticipation possible classify purpose etc according may described community expectation necessarily inconsistent genuine marriage relationship entered one party view material benefit advancement example hope becoming eligible reside particular country true test would suggest test whether time matter decided said party mutual commitment shared life together husband wife exclusion others tribunal given careful consideration evidence matter evidence established tribunal satisfaction said marriage instance arranged accordance pakistani islamic custom tradition tribunal also find relevant family instance perhaps strict adherence custom may prevalent instance contemporary pakistani society information upon base finding non acceptance party claim instance discrepancy related existence wedding photograph explained adequately tribunal view tribunal impressed demeanour testimony given review applicant matter able rely evidence evidence corroborated testimony given uncle considerable assistance tribunal witness oral testimony written form also provided useful information normative cultural practice situation statement verified fact following marriage couple lived together husband wife genuine basis month pakistan indeed period would longer fact aunt suffered health crisis whereupon required return earlier anticipated regular communication continued review applicant visited spouse recently pakistan decision maker ass factual circumstance faculty personal value understanding little doubt present relationship fall short measure however approach would improper unfair extreme plural culturally diverse community sensitivity understanding must shown respect may seen unfamiliar pattern behaviour point must stressed behaviour however seen le legitimate valid light instance tribunal satisfied party entered genuine though arranged marriage conducted impeccably accordance governing cultural religious principle focus future doubt couple developing type sharing intimacy personal level occurs amongst western couple upon entering said relationship many instance well marriage take place cultural variation seen tantamount lack sincerity genuineness reason tribunal satisfied couple entered genuine continuing marriage intend live genuinely together spouse australia future file shall returned department assessment outstanding criterion including public interest provision acceptable assurance support decisionthe tribunal accordance withsection 349of themigration act 1958 remit application department direction amjad farooq meet relevant prescribed criterion grant subclass 100 spouse visa save except criterion relating public interest provision acceptable assurance support certify preceding 18 page true copy statement decision reason decision michael radin senior member tribunal deputy registrar21 december 1998michael radinsenior member21 december 1998 |
Lo Pilato (Trustee), in the matter of Ghougassian (Bankrupt) v Ghougassian (No 2) [2022] FCA 1531 (6 December 2022).txt | lo pilato trustee matter ghougassian bankrupt v ghougassian 2 2022 fca 1531 6 december 2022 last updated 20 december 2022federal court australialo pilato trustee matter ghougassian bankrupt v ghougassian 2 2022 fca 1531file number nsd 116 2022 nsd 117 2022judgment markovic jdate judgment 6 december 2022catchwords practice procedure application adjournment whether applicant late filing material caused prejudice respondent whether late provision court book caused prejudice respondent whether provision electronic court book caused prejudice respondent whether delay obtaining subpoenaed material caused prejudice respondent application dismissedpractice procedure application adjournment court book contains material previously notified respondent proceeding set hearing estimate half day significant amount time used hear adjournment application application granteddivision general divisionregistry new south walesnational practice area commercial corporationssub area corporation corporate insolvencynumber paragraph 19date hearing 6 december 2022counsel applicant mr spencersolicitor applicant matthew folbigg lawyerscounsel respondent mr p e kingsolicitor respondent robert balzola associatesordersnsd 116 2022between trustee property daniel ghougassian bankruptapplicantand daniel ghougassianrespondentorder made markovic jdate order 6 december 2022the court order respondent application adjournment hearing amended summons refused respondent pay applicant cost application adjournment note entry order dealt inrule 39 32of thefederal court rule 2011 ordersnsd 117 2022between trustee property michael ghougassian bankruptapplicantand katrin ghougassianrespondentmichael ghougassiansecond respondentorder made markovic jdate order 6 december 2022the court order hearing amended summons adjourned date determined discussion counsel appearing party respondent pay applicant cost thrown away reason adjournment respondent file serve material intend rely going matter raised applicant submission reply relevant financial history material item 19 court book filed purpose hearing amended summons 30 january 2023 proceeding listed case management hearing 1 february 2023 9 30 aedt case management hearing take place via microsoft team note entry order dealt inrule 39 32of thefederal court rule 2011 reason judgment revised transcript markovic j 4 october 2022 made order setting matter hearing estimate two hour order made resolved application brought applicant case thetrusteeof property bankrupt estate daniel ghougassian one hand michael ghougassian amended summons heard determined prior hearing respondent amended cross claim filed case time order made filing evidence respondent filing service submission court book among thing order subsequently amended extending time party certain thing case morning matter called hearing mr king counsel respondent case made application adjournment argument adjournment application commenced 10 15 morning regrettably application taken morning propose deal application adjournment separately deal application made daniel ghougassian refer without intending disrespect ease asdaniel application made michael ghougassian wife katrin ghougassian refer without intending disrespect ease asmichaelandkatrin separately katrin joint holder property subject relief sought amended summons filed proceeding nsd 117 2022 daniel applicationi turn first application adjournment made daniel number submission made behalf daniel matter adjourned summary late filing material trustee issue arisen set affidavit sworn robert balzola solicitor daniel michael katrin relation material produced commonwealth director public prosecution dpp answer subpoena material said filed late first trustee submission chief required filed five week prior hearing filed served 7 november 2022 informed three day late however conceded daniel prejudice suffered reason material provided three day late matter complaint made court book order made 4 october 2022 party proceeding trustee daniel file serve court book one week hearing e 29 november 2022 court book provided late electronic format evening 5 december 2022 understand may provided well court registry closed late night hard copy court book provided daniel submitted late service court book caused prejudice fact provided hard copy latter submission express requirement provision court book hard copy recent year practice provide material electronically including court book evidence request made daniel solicitor court book provided hard copy event party access electronic copy court book late provision court book namely provided late night 5 december 2022 accept could cause prejudice daniel court book simply comprises material daniel acting aware comprises 1 pleading 2 affidavit upon trustee intends rely assume told otherwise filed served daniel solicitor reliance notified daniel trustee submission filed 7 november 2022 3 affidavit daniel intends rely 4 party submission filed served 5 list objection matter daniel say cause prejudice production material commonwealth dpp answer subpoena served daniel request according mr balzola commonwealth dpp slow producing document response subpoena mr balzola deposes following affidavit relied support adjournment application finally received document explained affidavit 5 12 2022 read large number document however opportunity thoroughly give client opportunity see soon possible prepared affidavit important material see assist court ie dated 5 12 2022 say trial affected later production material adversely respondent circumstance applicant claim material merely sort claim respondent contend fraudulent wrongdoing creditor responsible may give rise substantial credit favour respondent unless addressed honourable court prejudice case court understand particular latter sentence daniel say demonstrates connection material produced commonwealth dpp ultimately exercise discretion court relation making order sought trustee amended summons seems material go matter raised daniel amended cross claim dealt court later date pursuant order made 20 september 2022 heard determined separately trustee amended summons event assuming daniel demonstrate connection material alleged wrongdoing creditor responsible matter open raise hearing amended summons currently made ready hearing although note difficult see relationship misconduct employee former liquidator st gregory armenian school daniel connected put liquidation affect order currently sought trustee possession property registered daniel name reason accept prejudice occasioned daniel either contended late service court book difficulty mr balzola encountered reviewing material produced commonwealth dpp would refuse adjournment application made behalf hearing trustee amended summons naming daniel respondent proceed michael katrin applicationi come different view relation hearing trustee amended summons naming michael katrin respondent intend explain summary way however issue arise relation respondent quite different presently understand case katrin joint tenant property subject claim amended summons contends entitled greater 50 interest 70 interest property question percentage entitlement net proceeds sale property matter could determined another day separately question whether order possession order unders 66gof theconveyancing act 1919 nsw made appoint trustee sale property given issue arise fact court book includes material previously notified possible hearing matter could dealt resolved today indeed morning time allocated busy list hearing matter propose grant short adjournment somewhat reluctantly concerned party would come court morning hearing make application made indeed made taken court allocated hearing time stress busy court number litigant vying time judge court application nature ought made last minute accede request adjournment hearing trustee amended summons naming michael katrin respondent discus counsel date application adjourned michael katrin sought order cost adjournment trustee sought order cost occasioned adjournment application mr king raised number matter based said cost ordered client favour however application adjournment granted narrow basis namely inclusion material court book previously notified respondent ought opportunity deal however also said application made extremely late basis upon sought grant adjournment also acceded time apprehend take hear amended summons accordingly propose make usual order application adjournment namely party seeking adjournment ought bear cost thrown away reason adjournment certify preceding nineteen 19 numbered paragraph true copy reason judgment honourable justice markovic associate dated 20 december 2022 |
Steve Worton v La Cava Nominees Pty Ltd t_a Interceramics [1997] WAIRComm 69 (11 April 1997).txt | steve worton v la cava nominee pty ltd interceramics 1997 waircomm 69 11 april 1997 1825 1996 14 1997 176 ofworton mach v la cava nominee p l interceramicswestern australian industrial relation commissionindustrial relation act 1979steve worton la cava nominee pty ltd interceramics 1825 1996 zbigniew michael mach la cava nominee pty ltd interceramics 14 1997 la cava nominee pty ltd interceramics zbigniew michael mach steve worton 176 1997 commissioner c b park 11 april 1997reasons decisionmr worton commission application alleging unfairly dismissed employment interceramics 7 december 1996 remedy thereof mr worton seek reinstatement employment order payment certain monies commission convened conference pursuant 32 theindustrial relation act 1979 act 23 january 1997 attempt party conciliate upon matter raised application interceramics objected tojurisdiction two count one material reason ie employee employer relationship mr worton interceramics time alleged asserted material time mr worton employed zbigniew michael mach trading mach marble granite written sub contract service interceramics course aforementioned conference mr mach sought permission attend conference express consent party permitted attend participate discussion followed revealed alleged sub contract relationship mr mach interceramics terminated interceramics 7 december 1996 mr mach claim employee unfairly dismissed commission informed mr mach also filed application registry commission alleging employee interceramics also unfairly dismissed employment 7 december 1996 view challenge made jurisdiction commission aforementioned 32 conference concluded subject mr worton deciding whether wished proceed application advising commission intention 14 day date conference equivocal conference matter jurisdiction listed hearing determinationon 30 january 1997 application filed mr mach 14 1997 mentioned 32 conference held relation application mr worton also allocated commission presently constituted chief commissioner pursuant power act date separate application 176 1997 made interceramics seeking application filed messrs worton mach joined heard together similarly allocated commission presently constituted 7 february 1997 commission caused letter sent messrs worton mach requesting 14 february 1997 advise writing whether objected agreed application interceramics application joined heard together 14 day elapsed since 32 conference held nothing heard mr worton period letter mr worton also reminded directed advise commission whether wished proceed hearing application letter mr worton received commission 12 february 1997 revealed misunderstood taken place 32 conference light understanding declared decided proceed claim local court date commission caused letter forwarded mr worton explaining misunderstood taken place 32 conference questioning whether reference proceeding local court indication intention discontinue application commission 17 march 1997 messrs worton mach failed inform commission writing requested manner whether objected agreed application joined heard together commission reached preliminary conclusion matter jurisdiction ought initially listed hearing conjointly immediately aforementioned date notice hearing forwarded messrs worton mach advising would conjoint hearing 7 april 1997 commencement proceeding 7 april 1997 commission afforded messrs worton mach opportunity heard whether commission ought continue hear together issue jurisdiction mr worton object mr mach commission satisfied two application raised common matter jurisdiction involve several common also related fact arise job work location inter relationship several party involved applicant would prejudiced joint hearing commission therefore decided proceed hear jurisdictional argument jointly reason follow elaborate detail reason deciding messrs worton mach put scant argument commission regarding employee status allege held interceramics hearing submission made behalf interceramics upon completion examination chief m angela la cava director company trading interceramics mr worton declined opportunity cross examine announced wish continue application commission wish pursue grievance interceramics local court view nature proceeding commission timing mr worton request discontinue application commission asked acted become satisfied employee interceramics mr worton responded affirmative agent interceramics consented application mr worton discontinued commission thereafter announced party leave discontinue application 1825 1996 granted would ordered following upon disposition mr worton application mr mach also declined opportunity cross examine m la cava announced also wish pursue grievance interceramics local court clear indication mr mach application commission ought ended however expressed view method disposition agent interceramics objected application concluded commission except way determination whether according written contract mr mach interceramics associated document exhibit l1 l2 employee sub contractor commission told determination matter would relevant resolution matter involving interceramics another person issue employee versus sub contractor also exist may interceramics person party written agreement fundamentally applied mr mach however whether person employee sub contractor depend precise term agreement party thereto conducted practical term determination matter jurisdiction become moot relation matter commission therefore appropriate concluded without deciding issue jurisdiction application 14 1997 ought therefore dismissed order accordingly appearance mr worton appeared behalf mr z mach appeared behalf m laferla appeared behalf la cava nominee pty ltd interceramics |
Broz Family Trust T_A Broz Contracting [2021] FWCA 5929 (22 September 2021).txt | broz family trust broz contracting 2021 fwca 5929 22 september 2021 last updated 30 september 2021 2021 fwca 5929fair work commissiondecisionfair work act 2009s 185 enterprise agreementbroz family trust broz contracting ag2021 7363 broz family trust broz contracting cfmeu victorian construction general division subcontractor enterprise agreement 2020 2023building metal civil construction industriescommissioner leemelbourne 22 september 2021application approval broz family trust broz contracting cfmeu victorian construction general division subcontractor enterprise agreement 2020 2023 1 application made approval enterprise agreement known thebroz family trust broz contracting cfmeu victorian construction general division subcontractor enterprise agreement 2020 2023 agreement application made pursuant tos 185of thefair work act 2009 act made broz family trust broz contracting agreement single enterprise agreement 2 satisfied requirement ofss 186 187and188as relevant application approval met 3 pursuant tos 202 4 act model flexibility term prescribed thefair work regulation 2009is taken term agreement 4 construction forestry maritime mining energy union bargaining representative agreement given notice 183 act want agreement cover accordance withs 201 2 note agreement cover organisation 5 agreement approved accordance 54 act operate 29 september 2021 nominal expiry date agreement 30 june 2023 commissionerprinted authority commonwealth government printer ae513193pr734191 |
D14-15\142 [2014] SCTA 287 (22 December 2014).txt | d14 15 142 2014 scta 287 22 december 2014 last updated 25 february 2015determination number d14 15 142file number 12 1756review determination reason partiesthe complainantthe trusteeother person entity referred tothe fundthe self managed superannuation fund smsf complainant tax agentreview meetingconducted provision thesuperannuation resolution complaint act 1993 complaint act held 5september 2014 rod smith deputy chairperson decision reviewthe decision review trustee declining complainant request amend reporting australian tax office ato relation contribution made fund account 2008 09 year classify contribution made 1 october 2008 contribution personal contribution trustee notified complainant decision letter dated 14 may 2012 following review letter dated 29 june 2012 determination tribunalsection 37 6 complaint act provides tribunal must affirm decision review satisfied decision operation relation complainant fair reasonable circumstance tribunal satisfied therefore affirms decision trustee copied name deleted public distribution procedural mattersthe tribunal conducted review paper pursuant s32 complaint act requested submission party submission received complainant trustee elected lodge written submission copy complainant submission provided trustee response invited response received document retained tribunal file copied distributed party review meeting complaint backgroundcomplainton 13 september 2012 complainant lodged complaint tribunal decision trustee declining complainant request amend reporting ato relation contribution classify personal contribution unfair unreasonable complainant reason outlined determination resolution sought complainant trustee amend classification contribution backgroundthe complainant member fund since 2002 made contribution fund account 3 october 2008 total amount contribution 15 664 described accompanying contribution remittance form completed complainant part super guarantee balance optional employee contribution trustee recorded source contribution manner specified complainant reported ato term march 2009 complainant transferred entire benefit smsf exited fund february 2012 complainant requested trustee amend contribution source classification contribution personal tax trustee declined comply request tribunal satisfied material occurrence following event dispute 7 august 1958 birth complainant 3 january 2002 complainant joined fund 3 october 2008 complainant employer submitted fund employer contribution remittance advice personal division member ecra form relation contribution showing 2 851 super guarantee sg contribution 12 813 optional employee contribution oer tax 16 march 2009 complainant completed fund application payment benefit seeking transfer entire fund benefit smsf 20 march 2009 trustee wrote smsf enclosing cheque 95 167 34 crediting smsf 30 january 2010 complainant completed notice intent claim vary deduction personal contribution relation contribution s290 170 notice 3 january 2010 complainant wrote trustee requesting classification contribution 5 april 2012 complainant wrote trustee enclosing s290 170 notice dated 22 september 2008 requesting classification contribution 14 may 2012 trustee wrote complainant notifying decision declining reclassify contribution amend ato reporting 29 june 2012 trustee wrote complainant notifying review decision declining reclassify contribution amend ato reporting trust deedthe tribunal considers trust deed relevant complaint fund effect date contribution received fund 1 october 2008 trust deed amended including amendment dated 28 november 2007 trust deed trust deed provision relevant complaint annexure arulescontributions rollover transfer fundaccepting contributions7 1 trustee may accept contributionsthat made respect member unless prohibited contribution standard b applicable power trusteegeneral powers17 1 trustee power natural person trustee solely hold legal beneficial interest assetsof fund including c compromising claim legislationprovisions theincome tax assessment act 1997 itaa relevant complaint relevant provision 290 170 notice intent deduct conditionsdeductibility contribution 1 deduct contribution part contribution must give trustee fund valid notice approved form intention claim deduction b applicable c trustee must given acknowledgment receipt notice validity notice 2 notice valid least one condition satisfied c gave notice member fund ii trustee longer hold contribution submissionsthe complainantin written submission complainant made following point telephone conversation 8 september 2008 fund representative directed download form following complainant sought information complete form relevant contribution cap representative directed fund product disclosure statement pd order obtain information cap later day another call sought information completing form employer code subsequently called 9 september 2008 contends call made 9 september override supersede made previous day call 9 september fund representative spoken another fund officer remittance contribution tax deduction representative asked whether company informed sole trader result advised fill different form enquired representative consequence completing wrong form told contact fund would provided correct form contends subsequently discovered completed incorrect form trustee done nothing considered providing information tax deduction representative made mistake second call 9 september 2008 informed representative provided two different form complete informed correct form completed form contended mistake trustee led error completing form error avoidable simple rectify trusteethe trustee elected lodge written submission earlier correspondence tribunal outlined position follows contribution allocated accordance contribution source information provided complainant time lodging contribution prior making contribution sole trader complainant contacted fund customer service centre discus process form lodged order make compulsory employer sg salary sacrifice s contribution account trustee contended telephone conversation indicate clear intention contribute tax employee contribution lodgment must taxed 15 entry fund complainant claim informed fund representative wish allocate contribution personal tax contribution conflict content conversation fund representative 8 september 2008 complainant explicitly requested information relation form necessary make sg s contribution account sole trader subsequent conversation 26 september 2008 representative discussed implication making different type contribution complainant clearly noted intended contribution tax employer contribution complainant directed complete ecra form 17 may 2009 complainant requested transfer fund benefit smsf processed complainant exit statement specified contribution made 8 september 2008 two component classified employer contribution february 2010 complainant wrote fund requesting change made contribution source classification due initial mistake incorrectly notifying fund complainant time exited fund trustee prevented provision s290 170 itaa considering request amend contribution source classification additionally trustee issued acknowledgement s290 170 notice claiming deduction left fund tribunal deliberationsthe tribunal role determine whether decision trustee declining complainant request amend reporting ato relation contribution classify personal contribution fair reasonable operation relation complainant circumstance issue decision tribunal would made evidence reaching determination tribunal took whole evidence submission account complainant acknowledges made error description contribution ecra form claim inadequately incorrectly informed trustee leading occurrence error lodging contribution complainant 3 october 2008 preceded call made fund customer service centre 8 9 september 2008 first call complainant said sole trader stated intention make 9 sg s contribution stated several occasion call employer employee asked help obtaining correct contribution form make contribution also asked information applicable contribution cap condition release benefit distribution death relation form fund representative guided obtaining fund website appropriate form type contribution wished make second call complainant described sole trader employer employee specified intention make sg s contribution said guided appropriate form wanted help completing form provided third call following day complainant provided information employment status said downloaded form headed employer contribution form ec form fund representative suggested needed complete ecra form offered email form receiving emailed ecra form complainant sought clarification relation completion asked differed ec form would happen used wrong form assured form recommended representative correct form complainant also asked whether receipt suggested form contribution would taxed 15 told would case final call 9 september 2008 complainant gave information informed ecra form correct form contribution complainant asked difference optional employee tax contribution optional employee tax contribution referred form informed essentially except tax contribution equivalent s contribution whilst tax contribution equivalent personal contribution representative confirmed complainant stated understanding tax contribution attracted tax 15 whilst tax personal contribution taxed 15 complainant called fund 26 september 2008 ask contribution cheque addressed enquire unit price applicable contribution information provided 1 october 2008 complainant called fund enquired employer number considered recording call tribunal satisfied nothing said fund representative incorrect inconsistent based clear repeated statement complainant sole trader capacity employer employee statement made complainant effect wished make personal tax contribution complainant contribution received fund 3 october 2008 accompanied completed signed ecra form form contained head opening page following statement form completed employer wish instructed make contribution fund behalf employee section 1 form headed employer detail employer name complainant provided individual name consistently statement telephone employer employee also referred self employed contribution detail complainant entered amount 2 851 column headed super guarantee sg contribution 12 813 column headed optional employee contribution oer tax view tribunal trustee could reasonably concluded content ecra form complainant intended make contribution including employer sg s component clear trustee recorded contribution manner circumstance request complainant contribution reclassified personal tax considered basis possible innocent error complainant part completing ecra form regard evidence arising form telephone call recording tribunal real doubt whether intention complainant time making contribution personal tax contribution however even assumed innocent error made complainant result confusion major barrier trustee acceding complainant request 17 may 2009 8 month time contribution complainant chose transfer entire fund benefit smsf exit fund order tax deduction claimed relation personal tax contribution requirement s290 170 itaa must satisfied particular taxpayer member must given fund trustee valid notice form approved itaa intention claim deduction contribution appears 30 january 2010 complainant completed gave trustee notice requisite form s290 170 2 notice valid notice given person giving notice longer member fund question fund longer hold contribution time gave notice complainant exited fund contribution part amount transferred fund valid notice could given complainant january 2010 accordingly time even otherwise disposed consider complainant request reclassification contribution trustee prohibited s290 170 accepting acknowledging s290 170 notice ato made clear policy fund trustee retrospectively amend reporting fund contribution unless material error error part fund trustee situation exists complainant case reason outlined regard evidence submitted tribunal considers decision trustee declining complainant request amend reporting ato relation contribution classify personal contribution fair reasonable operation relation complainant circumstance determination tribunalpursuant s37 1 complaint act tribunal power obligation discretion trustee virtue s37 3 tribunal reviewing complaint must make determination affirming decisionremitting matter consideration accordance tribunal directionsvarying decisionorsetting aside decision substituting decision section 37 6 complaint act provides tribunal must affirm decision review satisfied operation relation complainant fair reasonable circumstance tribunal satisfied accordance requirement s37 3 4 5 complaint act therefore affirms decision trustee rod smith rod smith deputy chairperson signed date tribunal signature 22 december 2014 |
Moore v Cureton [2002] NSWCA 188 (19 June 2002).txt | moore v cureton 2002 nswca 188 19 june 2002 last updated 28 june 2002new south wale court appealcitation moore v cureton 2002 nswca 188file number 41020 01hearing date 19 06 2002judgment date 19 06 2002parties jason anthony moore v joanne nicole curetonjudgment meagher ja foster aja ipp ajalower court jurisdiction district courtlower court file number 3370 99lower court judicial officer gamble dcajcounsel p barham appellantp walsh respondentsolicitors stoikovitch banfield appellantanthony ziade associate respondentcatchwords appeal due amount awarded legislation cited property relationship act 1984district court actdecision 1 leavel appeal grant 2 matter remitted hearing cross claim evidence already led 3 cost application appeal awarded appellant 4 respondent granted certificate suitor fund act otherwise entitled judgment supreme courtof new south walescourt appealca 41020 01dc 3370 99meagher jafoster ajaipp ajawednesday 19 june 2002jason anthony moore v joanne nicole curetonjudgment1meagher ja unfortunately find unable agree decision foster aja doubt acting judge gamble fell error misconstrued 17 theproperty relationship act 1984 doubt failure honour part led fail consider claim present claimant made nonetheless despite error view summons dismissed cost 2 take view two reason firstly amount involved sum relevantly trivial claimant mr moore obtained everything really wanted would entitled verdict something 20 000 victory would swallowed cost order secondly indication material u entitled verdict cross claim particularly large proportion amount claiming m cureton represents sum money expended meat vegetable consumed party circumstance would dismiss summons cost 3 order court order proposed foster aja revised subsequent matter mentioned ipp aja 4foster aja application leave appeal leave granted hearing appeal judgment given district court new south wale sydney 21 august 2001 judgment honour acting judge gamble district court awarded respondent joanne nicole cureton m cureton appellant jason anthony moore mr moore amount 52 461 05 size award leave appeal court required 5 plaintiff claim honour contained number separate claim two comparatively large one amount 40 000 amount 10 500 addition claim number smaller one necessary make reference claim arose period appellant respondent resided together domestic relationship appellant house town north coast new south wale 6 claim originally brought respondent included claim theproperty relationship act 1984 act appears honour judgment claim abandoned least abandoned insofar formulated claimed act upshot respondent claim honour formed view two amount made reference could properly regarded repayable loan made m cureton mr moore 7 first amount paid mr moore m cureton 24 december 1997 paid enable reduction made mortgage mr moore house m cureton child residing amount 10 500 agreed trade value car provided enable purchase made larger expensive vehicle used respect relationship 8 need enunciate basis upon honour allowed claim award money respect dispute proceeding 9 respect claim brought m cureton honour dismissed basis evidence case enable find established 10 central feature application leave appeal appeal manner honour dealt cross claim brought proceeding mr moore cross claim lengthy provided court today find way appeal paper 11 necessary refer way detail merely remark extensive contains number financial claim made mr moore m cureton claim alleged arisen course respect domestic relationship cross claim clearly intended amount might awarded m cureton claim would reduced reflect success cross claim 12 cross claim respect item based upon pt 3 act part devoted proceeding financial adjustment section 14 act provides party domestic relationship mr moore clearly party may apply court adjustment interest respect property party relationship either although appear act district court appropriate court application doubt score cleared court referred appropriate section thedistrict court actwhich fact confer jurisdiction 13 section 17 act deal jurisdictional matter section 17 1 provides court shall make order unless satisfied party application lived together domestic relationship period le two year section 17 2 make jurisdictional provision refer shortly 14 indicated honour significant miscellany claim brought mr moore reliance upon statutory provision honour dealt cross action fairly summary way page 3 judgment said relationship party meet requirement section 17 lived together domestic relationship period le two year 15 went say period cohabitation pre requisite granting property adjustment within meaning act later judgment dealing mr moore claim say much mr brasch argument defendant directed section 20 theproperty de facto relationship act 1984 reason stated p 3 believe argument sustainable act went apply relationship m cureton mr moore 16 although entertained doubt originally whether honour making fairly contentious statement referring matter arising 17 2 come quite firmly view close reading honour judgment taken position absence living together period two year act simply apply enable claim brought type sought brought cross claim 17 submitted behalf applicant holding honour fallen legal error satisfied respect unfortunately done result extensive cross claim act subject consideration honour judgment failure consider course simply prevented cross claim mr moore considered needle say unsatisfactory situation necessity obtaining leave would quite simply view lead granting appeal 18 however question barrier erected proceeding necessity leave obtained considered whether leave granted case regard relatively fact significantly small nature claim fact material relation dispute party honour considered whether able satisfy notwithstanding fact honour considered cross claim within context statutory framework act taken account matter raised cross claim dealing m cureton claim word taken claim brought mr moore contribution financial nature alleged made account reducing slightly amount awarded m cureton respect two major item made award taken account disallowing smaller claim m cureton brought considered would felt notwithstanding error law would insufficient indication injustice proceeding enable granting leave however examination honour judgment indicate course taken 19 certainly reference various claim made mr moore would qualify contribution financial non financial contribution made capacity homemaker parent type referred 20 act indication however apart reference made way taken account calculation amount ultimately awarded m cureton result mentioned ascertain judgment indication fact added colour perhaps consideration 20 counsel appellant taken u affidavit filed mr moore respect cross action given u benefit calculation based upon material appears therein calculation would indicate cross claim successful award would could order 29 000 course term granting leave court fairly small sum however successful recovering amount significant proportion result would would reduce amount awarded plaintiff something order fifty per cent 21 circumstance denial opportunity litigating cross claim seems circumstance significantly prevented justice party contemplated in 17 2 act course part claim section contribution substantial nature notwithstanding absence two year period cohabitation failure take account would result serious injustice 22 hesitation matter quite significantly low sum involved come conclusion error law clearly made way deprived mr moore cross claim properly considered case leave granted appeal upheld propose 23 question order made circumstance one difficulty obviously order one would productive little possible cost party desirable matter returned hearing honour necessity litigating whole matter another judge avoided also desirable view honour consideration hearing issue raised cross claim 24 would propose therefore order made matter remitted honour hearing issue raised appellant cross claim would also order far cost application appeal concerned awarded appellant respondent granted certificate thesuitors fund actif otherwise entitled 25 omitted deal order matter remitted hearing cross claim evidence led matter dealt evidence already led would agree order proposed ipp aja 26ipp aja gamble adcj found theproperty relationship act1984 apply relationship m cureton mr moore reason conclusion erroneous conclusion honour gave consideration mr moore cross claim notwithstanding evidence led argument advanced cross claim finding made regard thereto mr moore contention simply dealt 27 opinion omission deal cross claim way constitutes departure litigant entitled expect proper administration justice think leave appeal given irrespective small amount relatively speaking involved 28 reason agree foster aja also agree order proposes say certain whether honour made order matter remitted hearing cross claim evidence led matter dealt evidence already led part would make order last updated 28 06 2002 |
R v Cook [2022] NSWDC 157 (13 May 2022).txt | r v cook 2022 nswdc 157 13 may 2022 last updated 20 may 2022district courtnew south walescase name r v cookmedium neutral citation 2022 nswdc 157hearing date 26 april 2022date order 13 may 2022decision date 13 may 2022jurisdiction criminalbefore priestley sc dcjdecision 1 offender convicted 7 charge set table 2 taking account objective seriousness matter subjective matter detailed taking account various form 1 matter relation particular offence relate applying 25 discount early plea guilty offender sentenced aggregate term imprisonment 14 year date 1 november 2019 non parole period 9 year date 1 november 2019 expiring 31 october 2028 legislation cited crime sentencing procedure act 1999drugs misuse trafficking actcrimes high risk offender act 2006 nsw case cited muldrock 2011 hca 39 2011 244 clr 120r v mclaren 2012 nswcca 284moananu 2022 nswcca 85bugmy 2013 hca 37 2013 249 clr 571millwood v r 2012 nswcca 2de la rosa 2010 nswcca 194nguyen 2005 nswsc 600r v mohamad ali 2005 nswsc 334r v walsh 2004 nswsc 111 2004 142 crim r 140smith v r 2020 nswcca 181woodbridge v r 2010 nswcca 185duncan v r 2012 nswcca 78crowley v r 2021 nswcca 45hall v r 2021 nswcca 220r v holder 1983 3 nswlr 245mill v queen 1988 hca 70cahyadi v r 2007 nswcca 1category sentenceparties regina crown cook offender representation swift crown prosecutorkrisenthal counsel offenderfile number 2019 00206586publication restriction unrestrictedintroduction offence form 1 matter maximum term standard non parole periodsthe factsobjective seriousness manslaughter grievous bodily harm offencesform 1 matter relating manslaughter grievous bodily harmdrug offencesaggravated break enter commit serious indictable offence larceny firearm offencesvictim impact statementscriminal historythe offender subjective case sentencing considerationstable indicative sentencestotalitydetermination sentenceordersintroduction offence form 1 matter maximum term standard non parole periods1 offender james cook appears sentence respect 7 offence 6 offence dealt way form 1 procedure written submission offender helpfully set table charge maximum penalty whether standard non parole period length form 1 matter attaching particular principal charge table gratefully adopted added date principal offence form 1 matter chargedatemax pensnppform 1datemanslaughter daniel elliott9 12 1825no52ab 1 fail stop render assistance9 12 18manslaughter jared ward9 12 1825no52ab 1 fail stop render assistance9 12 18gbh renee fox9 12 18104 years52ab 2 fail stop render assistance9 12 18supply 72 25 meth18 3 19 30 6 1915nos25 1 dmta x 2 112 g 9g methylamphetamine22 6 19 3 7 19agg bes14 6 19205 yearsnoposs firearm3 7 1914nos65 3 po ammunition3 7 19poss loaded firearm public place3 7 1910no2 regard form 1 procedure important focus remains principal offence offender sentenced procedure allows greater weight may given element personal deterrence community entitlement extract retribution serious offence two element entitled greater weight may otherwise given sentencing primary offence seeattorney general application unders37of thecrimes sentencing procedure act 1999no 1 2002 2002 nswcca 518 2002 56 nswlr 146per spigelman cj 3 two principal offence standard non parole period offence recklessly causing grievous bodily harm standard non parole period four year offence aggravated break enter steal standard non parole period five year 4 maximum sentence additionally respect two offence mentioned standard non parole period taken account legislative guidepost assist arriving appropriate sentence relation standard non parole period note inmuldrock 2011 hca 39 2011 244 clr 120at 29 high court made clear application even offending considered middle range seriousness term used insection 54aof thecrimes sentencing procedure act cspa standard non parole period maximum sentence indication legislative view seriousness offence 5 assessing objective seriousness purpose ofsection 54b 2 matter determined wholly reference nature offending assessing moral culpability overall sentencing purpose also sometimes referred objective seriousness matter personal offender taken consideration example mental health see regard decision mccallum j inr v mclaren 2012 nswcca 284at 29 facts6 following statement fact taken agreed sentence fact found exhibit victim two manslaughter offence daniel elliott jared ward offender mr ward grown together good friend 2014 mr ward seriously assaulted member offender family offender provided statement police assault mr ward convicted sentenced 2 year imprisonment mr ward released prison july 2015 held grudge offender role mr ward perceived offender played conviction latter half 2018 mr ward part planned revenge offender led offender believe longer held grudge december 2018 mr ward conspired victim mr elliott arrange drug transaction offender intent defrauding plan arrange meeting isolated location offender impression would purchasing 2 ounce drug ice mr elliott approximately 7000 intention steal 7000 provide drug 7 manslaughter reckless grievous bodily harm offence occurred 9 december 2018 day communication mr ward mr elliott relation plan rip offender also communication offender mr ward setting meeting plan involved mr ward picked offender going designated location halfway creek meet party mr elliott offender used blue holden commodore borrowed neighbour drove mr ward 6 pm halfway creek 8 prior mr elliott prepared bag rice fake methamphetamine home m fox friend mr ward mr elliott m fox aware plan borrowed friend car silver mitsubishi lancer travel mr elliott halfway creek 9 shortly 7 pm offender mr ward arrived agreed location near abandoned rose farm car parked cul de sac facing exit mr elliott m fox arrived parked next car facing exit mr elliott offender got respective car met back lancer unclear happened next however offender stated mr elliott physically overpowered choked leaving ground unconscious second mr elliott took offender money returned front seat lancer offender regained foot walked car time lancer drove high speed offender immediately got commodore chased lancer car came side road onto pacific highway heading north 10 conduct offender chasing lancer commodore two manslaughter charge grievous bodily harm charge arise driving commodore agreed offender intimidatory predatory driving constitute unlawful dangerous act lancer recorded speed sign travelling 140 km h crash investigator analysis estimated vehicle travelled 144 km h 610 entering pacific highway truck driver mr bates driving north observed lancer pas right hand lane commodore tailgating lancer soon commodore passed mr bates moved left lane beside lancer commodore moved right closer lancer lancer moved right side wheel right fog line mr bates described commodore given good shake wheel move back forth take mean left right away back closer towards lancer lancer fog line commodore continued right hand lane close lancer one point lancer hit brake commodore lancer accelerating away commodore u turn lancer commodore car travelling south along pacific highway lancer travelling right hand lane commodore continued pursuit offender misjudged close lancer commodore front right panel commodore unintentionally came contact rear left panel lancer caused mr elliott lose control lancer enter anticlockwise rotation lancer left roadway left hand side rolled later calculation speed lancer point impact 102 112 km h lancer came rest rolled embankment roof roof crushed 11 mr elliott initially responsive 000 call became unresponsive dead paramedic arrived mr ward direct cause death mr elliott neck injury suffering c4 vertebral fracture likely lead spinal shock rapid cardiac arrest direct cause death mr ward multiple injury head neck thorax upper limb well injury pelvis lower limb death likely instantaneous 12 m fox flown gold coast hospital received treatment compression fracture 3 vertebra requiring surgery massive subgaleal haematoma fractured rib small glass fragment left index finger 13 lancer crashed offender stopped went back accident scene left scene passerby vehicle pulled render assistance driver extinguished small fire offender rendered assistance call 000 lancer examined scene money found crown contested reason offender returned scene offender indeed took money left argument contrary put offender finding adverse offender made regard need satisfied beyond reasonable doubt circumstance mr elliott took money lancer conclude certainly lancer time accident circumstance money found scene despite examination carried conclude beyond reasonable doubt money indeed taken offender returned scene find offender returned scene recover money render assistance 14 offender returned home partner observed acting strangely told happened partner saw news report mr elliott mr ward died crash offender found partner observed cry shaking went shock 15 offender participated voluntarily two interview police 18 december 2018 3 july 2019 occasion gave exculpated reversion suggesting lancer responsible aggressive driving offender arrested 3 july 2019 remained custody since date objective seriousness manslaughter grievous bodily harm offences16 accepted party offending conduct occurred period 2 3 minute driving offender said relatively brief period supporting lesser rather greater assessment objective seriousness offender also contended planning conduct responsive circumstance offending highway heavily built area conduct involving car inherently dangerous example given much worse case involving alcohol police pursuit 17 party made argument based circumstance leading offending conduct offender said genesis offence lie decision victim lure offender remote location rob contrast drawn considered action unplanned reactionary behaviour offender 18 contrast crown asserts incident occurred context unlawful activity namely attempt source illegal drug 19 view assessment objective seriousness need based predominantly actual conduct constituting offence offender conducted lancer perhaps slightly touched car departing cul de sac circumstance party unknown view offending le serious offender ripped view lessen seriousness manslaughter offence grievous bodily harm offence similarly answer crown argument offending conduct made serious offender engaged earlier criminal activity whatever circumstance preceded offending conscious deliberate choice offender behave position might different prelude offending different example pursuit objective protecting person hypothetical dealing present fact view take illegal activity preceding driving conduct neither assist hurt offender far assessment objective seriousness concerned may conduct relevant reason sentence factor considering prospect considering likelihood reoffending 20 major point crown say offender weaponised motor vehicle car argued used weapon intimidate others force others road 21 accept submission crown whilst offending conduct reactionary occurred cul de sac far momentary 22 manner driving dangerous perhaps highlighted failure offender veer away lancer lancer right side passed fog line whilst consider use term weaponised somewhat dramatic certainly case commodore used offender intimidatory predatory way clear obvious great risk accident death serious injury 23 accept offender submission offending occurred highway built area evidence intoxication part offender note reference offender suffering withdrawal ice time offence evidence consequence 24 death two victim necessary element offence manslaughter serious injury suffered m fox death add inherent seriousness manslaughter offence hand evidence detailed injury sequela affecting m fox necessarily element offence m fox seriously injured injury included compressed fracture three vertebra requiring surgery m fox attended sentence hearing suggestion paraplegia extent evidence perspective grievous bodily harm injury suffered whilst clearly significant serious support finding objective seriousness offence le contended crown 25 offender drew court attention recent case ofmoananu 2022 nswcca 85 case give number comparable case type fact case illustrate great range factual circumstance type offending may occur case refers occasion offender driving whilst grossly intoxicated driving wrong side road driving greater period time greater distance offender busy built area much higher speed 26 present case whilst speed 144 km h reached speed time going road line likely speed limit highway traffic heavy built area evidence intoxication factor case heightens seriousness conduct element pursuit offender lancer manner close lancer whilst intentional ultimate touching vehicle highly likely continuation conduct lancer crossed fog line heading north south add seriousness matter 27 course necessary consider offence separately view assessment manner driving case necessarily factor distinguishing manslaughter charge grievous bodily harm charge term objective seriousness relevance extent injury suffered m fox 28 conclusion reach objective seriousness matter manslaughter offence mid range objective seriousness reckless grievous bodily harm offence though light injury suffered ass offence slightly le serious manslaughter offence midpoint seriousness referred insection 54a form 1 matter relating manslaughter grievous bodily harm29 respect manslaughter charge grievous bodily harm charge form 1 matter take account case failing stop render assistance charge section 52ab 1 respect manslaughter charge section 52ab 2 respect grievous bodily harm charge serious charge relates manslaughter charge carry maximum penalty 10 year imprisonment reason accident involving death maximum penalty undersubsection 2relating impact occasioning grievous bodily harm 7 year 30 set fact relating matter conduct offender regard described callous self interested showing concern respect whatsoever life well three victim rather concern offender reclaim 7000 sentence primary offence case reflect additional weight personal deterrence retribution may otherwise case without exceeding sentence appropriate objective gravity offence drug offences31 next primary offence section 25 1 thedrugs misuse trafficking actof supplying 72 25 g methylamphetamine maximum penalty 15 year imprisonment charge referred rolled offence quantity 72 25 g total amount methylamphetamine supplied offender course affecting total 53 separate transaction 21 different people supply occurred 18 march 2019 30 june 2019 offending uncovered investigation carried police strike force involved lawful monitoring telephone conversation message fact set detail communication necessary recount similar detail fact set circumstance supply 1 38 supply 39 53 described simply 15 occasion supply total 21 75 g 32 respect 38 supply detailed fact amount supplied ranged 3 gram 4 6 g 33 transaction 1 75 gram le thus 38 occasion supply five occasion supply beyond 1 75 g given remaining 15 occasion 21 75 g supplied would seem likely 15 supply similar quantity 1 75 g le 33 quantity supplied manner communication largely text anad hocbasis bear statement agreed fact offender user dealer plainly well imbued business drug supply conversation recounted paragraph 14 19 demonstrate depth offender involvement connection chain albeit show great extent subordinate people point fear 34 charge section 25 1 rolled amount 72 25 g well excess indictable quantity 5 g even greater margin le commercial quantity 250 g well recognised quantity drug sole even major determinant matter 35 accept submission offender fact bear role marginally street level dealer quantity involved commonly support street dealing larger quantity indicating offender role able classified simply street level dealer 36 term objective seriousness would ass low mid range due apparent degree involvement illegal activity borne multitude supply three month period 37 two form 1 matter take account supply prohibited drug charge charge section 25 1 respect supply methylamphetamine one case 112 g 9 6 g offence occurred 22 june 2019 3 july 2019 first offence detected due police investigation offender called gregory reiley assist organising supply 112 g methylamphetamine buyer drug dissatisfied amount contacted offender express displeasure amount le agreed made threat offender supplied amount 112g far excess individual amount subject principal charge significantly rolled amount whilst offender primary actor supply demonstrates degree involvement consistent finding role offender drug supply simply street dealer based brief fact provided also provides example quantity involved although greater earlier amount would see matter assessed le objectively serious primary offence nevertheless result greater weighting given personal deterrence retribution 38 second form 1 matter must also taken account impact sentence lesser extent 9 6 g methylamphetamine found police carrying search offender bedroom arrest accepted quantity possessed partly supply partly use something entirely consistent street dealer add great deal weighting deterrence retribution aggravated break enter commit serious indictable offence larceny 39 14 june 2019 12 30am 2 30am offender mr godwin cut hole wire perimeter fence location schwinghammer street south grafton three day offender noticed delivery made location certain material including telephone cabling told somebody would still take take mean buy following offender discussion others logistics breaking entering location removing good property 40 cut perimeter fence offender mr godwin cut padlock two storage container took various construction tool equipment including two large roll copper wire item placed car either mr healy offender car left scene total value stolen item 66 000 41 following offence offender made arrangement relocate copper wire pending sale involved storing wire home mr pategna morning arrested unrelated matter causing offender concerned copper found police night offender mr healy relocated wire 42 morning offence employee noticed cut padlock empty storage shed matter reported police attended 3 july 2019 offender arrested unrelated matter found property theft vehicle subsequent search premise found property taken 14 june 43 offender submitted objective seriousness offence fell well mid range towards bottom low range crown submits underestimate seriousness offending crown say break enter larceny commercial premise serious nature involving planning identification site arranging transport bulky item merit point 44 case people present time offence obviously planning far sophisticated extent opportunistic good placed site happening noticed three day earlier lack sophistication perhaps highlighted also aftermath safe place store good ultimately discovered premise car offender 45 significant 60 different item stolen roll wire 100 length one item battery press valued 15 000 another 2 item insulation tester valued total 20 000 take account submission offender accept matter aggravation company could described least aggravating factor section 105a also serious indictable offence larceny carry minimum penalty five year required fit definition taking objective matter account would ass high end low range objective seriousness form one matter taken account offence firearm offences46 firearm offence arise search carried upon arrest offender 3 july 2019 shortened firearm found 105 armidale road inside locked metal cabinet found within trailer belonging offender containing property firearm cbc brand 410 shot gun shortened barrel woodstock also found breech shotgun live 410 cartridge constitutes form 1 matter possessing ammunition offence section 65 3 prohibits possessing ammunition unless relevant license permit held note maximum penalty fine 50 penalty unit 47 second firearm charge possessing loaded firearm public place firearm home made found inside dashboard offender vehicle upon search 3 july 2019 police rendering firearm safe live 22 cartridge fell inside gun barrel onto ground 48 respect firearm charge crown made submission great concern given criminal activity offender respect common sense submission make difficulty however whilst one view may seem blindingly obvious firearm tool offender criminal trade charge relate specifically 3 july 2019 offending occurred occasion supply 9 g methylamphetamine reason would ass offence mid range offending low range respect home made firearm would ass serious still mid range high low range given effort construct dangerous item keeping loaded also readily available offender given location victim impact statements49 crown relies upon seven victim impact statement statement mother father mr elliott mr elliott sister mother mr ward sister mr ward husband also victim impact statement m fox 50 statement read court moving serve demonstrate important individual person family loved one due criminal conduct offender people deprived ongoing clearly close loving relationship deceased case mr brahm potential relationship harm done offender extends well beyond immediate death injury caused taken statement consideration accordance section 30e criminal history51 offender born 17 july 1984 first offended 2003 age 19 charge driving recklessly furiously speed manner dangerous fined also negligent drive charge 2003 driving offence 2006 2007 2009 2008 convicted assault occasioning actual bodily harm 2010 2011 matter offensive behaviour resist police 2013 2 drive disqualified matter 2014 possession prohibited drug knife number posse prohibited drug matter contravention apprehended violence order 2014 also number property offence 2015 series dishonesty offence received intensive correction order offend course ico 2017 charged firearm offence received suspended 12 month sentence date 8 january 2018 called matter received ico ico run 19 february 2019 18 february 2020 word conditional liberty way suspended sentence time manslaughter reckless grievous bodily harm offence ico time offence march 2019 offence driving illicit drug present blood 52 record plainly disentitles offender leniency based record offending occurred whilst offender conditional liberty aggravating factor taken account said offender record age 34 age time manslaughter grievous bodily harm offence show offending far lesser seriousness considered offending sentenced represents significant escalation criminal lifestyle offender subjective case 53 agreed offender entered plea time entitles 25 discount pursuant tosection 25dof thecrimes sentencing procedure act 54 offender relied upon report psychologist luke brabant dated 29 july 2021 also relied letter prepared offender signed 11 april 2022 addition four certificate achieved whilst custody letter sister dated 21 april 2022 relied upon letter dr cooper respect health offender mother two letter received offender custody abusive also evidence 55 psychologist report set offender history history largely account tested cross examination letter written court offender tested cross examination crown however took issue offender history letter doubt sincerity remorse expressed letter given timing history given offender moving residence frequently age 7 due say parent growing supplying cannabis affected education social development offender witnessed antisocial behaviour said violence substance abuse criminal activity behaviour became normalised basic need met minimal level offender father abused alcohol violent intoxicated violence directed mother child father spent time custody offender mother also abused alcohol offender mother abuse offender criminal history relationship positive two sister 56 13 sexually abused schoolteacher included anal penetration causing bleeding also defecation observed student turn became point ridicule bullying speaking childhood abuse 57 young age mixed antisocial peer arising circumstance seeking home due father behaviour 18 independent accommodation since accommodation unstable period homelessness perhaps indicative offender environment father presently coma physically assaulted nephew 58 offender member bundjalung nation connection culture encouraged child le engaged adult life due focus substance abuse criminal activity 59 offender struggled school disruptive school left school year 9 age 14 remains functionally illiterate first worked sawmill later logger 26 suffered back injury worked since consistent employment due significant degree substance abuse gained money selling drug hope released work traffic controller done course 60 apart back injury suffered laceration ex partner head injury result fight workplace injury though testing showed adverse result 61 commenced drinking 13 year age say problem last alcohol three year prior assessment started smoking cannabis 13 year age stole parent became daily following sexual abuse continued smoke cannabis daily current incarceration use crystal methamphetamine began 26 led smoking ice daily basis also used drug including heroin also abused prescription drug prescribed attempt residential rehabilitation program balund could view considered success offender remained abstinent one month reported motivated maintain abstinence present incarceration infer abstinent present incarceration also gambling addiction 62 offender nine year old son five year old daughter one long term relationship ended 2019 relationship one violence party first child taken care authority apprehended violence order applied ex partner 63 relation current offence say withdrawing ice driving motor vehicle incident relationship ended substance abuse escalated say offence breaking entering stealing supplying drug fund heavy substance abuse pay debt owed outlaw motorcycle gang 64 expressed contrition offending stating felt horrible death often think could done differently voiced particular concern mr ward childhood friend 65 custody special management area placement say one deceased brother custody also link outlaw motorcycle gang 2020 custody incurred three offence concern expressed offender safety supported letter received evidence worked initially work became unavailable undertaken various course 66 report contains psychological assessment initially sought assistance mental ill health 2014 son taken care say diagnosed depression prescribed antidepressant given mental health care plan attended one session psychologist due increased abuse substance four year later sought intervention assist regaining care son diagnosed depression prescribed antidepressant given mental health care plan persist psychological intervention due drug abuse 67 symptom depression emerged 2014 wake removal son care worsened 2019 offender long term relationship ended psychologist considers offender meet diagnostic criterion persistent depressive disorder psychologist also considers offender meet diagnostic criterion post traumatic stress disorder based reported symptom hypervigilance exaggerated startle response irritability sleep disturbance recurrent distressing dream symptom emerge background repeated traumatic event family violence childhood physical sexual abuse home invasion 2019 life threatened 68 report refers consider significant feature offender history heavy ice abuse age 26 offender said would spend great deal time engaging activity necessary obtain ice use ice recover effect resulted failing fulfil obligation home already noted impacted work option founded finding stimulant use disorder psychologist reference made assessment cognitive functioning showed offender low average range 69 psychologist undertakes risk assessment risk factor considered range matter history set conclusion high risk reoffence risk reduced successful rehabilitative effort addressing social substance abuse need simply put risk reoffending reduces support given manage ptsd depressive disorder contribute substance abuse 70 paragraph 44 view expressed offender early life experience significant enduring impact trajectory life affecting psychological stability well cognition behaviour would appear turn influenced engagement offending contributed risk 71 risk reoffending prospect rehabilitation also considered poor also may improve subject effective intervention 72 custody pose problem offender said worsen back pain fear safety mainstream custody custody also trigger reminder early traumatic experience gaol specified 73 report recommends psychological intervention ptsd depressive disorder likely available community custody offender may also eligible mental health care plan gp intervention required substance abuse history community based order residential rehab program recommended 74 real challenge history recorded psychologist report opinion expressed mr brabant accept history given establishes childhood background social disadvantage background disadvantage reason neglect lack care parent childhood violence illegal activity normalised addition accept offender suffered sexual abuse described report 75 also accept finding circumstance lifetime drug abuse ensued though appear become unmanageable prior age 26 commencement use methylamphetamine 76 assessment cognitive ability poor poor literacy also noted accepted overall impact personal circumstance offender person ill equipped manage life pro social way turn compounded mental health issue emerging 2014 persistent depressive disorder also view expressed criterion met post traumatic stress disorder doubt based part sexual abuse diagnostic criterion severe stimulant disorder also said met something totally consistent offender history accept 77 circumstance offender oral submission made reference relied principle ofbugmy 2013 hca 37 2013 249 clr 571for leniency submission well founded accept apply offender oral written submission properly called aid decision ofmillwood v r 2012 nswcca 2and particular oft cited passage judgment justice simpson 69 effect passage offender start life type experienced offender bear equal moral responsibility person might experienced might termed normal upbringing quote honour common sense common humanity dictate person fewer emotional resource guide behavioural decision simpson ja pointed mean person bear moral responsibility position honour went state background relevant consideration affording although limited mitigation 78 offender argued clear causal connection offending background accept term proposition effect put inmillwoodjust stated relied upon offender may distinction without difference consider approach different reliance principle ofde la rosadealing appropriate way deal mental ill health causative extent offending 79 circumstance offender background therefore allow leniency effect lessening moral culpability important however limitation qualification simpson j borne mind extent mitigation given effect vary case taken account determining offender sentence 80 letter provided court offender expressed sorrow regret family deceased m fox family accept offender expressed remorse mitigating effect must tempered appalling conduct immediately following crash exculpatory version event given two interview police 81 course undertaken custody included five topic remand addiction two day domestic violence session total 6 5 day attendance connect resilience program focusing communication school logical mind emotional mind matter vocational pathway certificate required completion 11 unit computer certificate accept show acceptance need intervention evidence showed behaviour custody improved last 18 month 82 history given offender supported letter court sister alice connor talk living tent parent party went day father drinking lot violent m connor say child would stay till dark coming back house father denigrated much drug use father also punished disproportionately behaviour including read letter tying 83 letter gp evidence offender mother life expectancy le five year due state health taken consideration circumstance case little impact ultimate sentence 84 lastly two letter court received offender custody threatening one stating relation offender time jail gonna make sure getting addition matter term burden custody note back condition referred also note harder time custody covid condition latter factor weight first issue covid recognised need isolation risk disease spreading also impact staffing level evidence case referred frequently sentencing matter point judicial notice may taken well reported widely difficulty reason many business effect increasing time prisoner spend much 23 hour even per day cell day time 85 offender receives leniency due background discussed also shown late degree remorse increasing willingness intervention time history history offending result assessment future prospect poor risk reoffending high sentencing considerations86section 3aof cspa set purpose sentencing follows 86 1 ensure offender adequately punished 86 2 prevent crime deterring offender others committing similar offence 86 3 protect community offender 86 4 promote rehabilitation offender 86 5 make offender accountable action 86 6 denounce conduct offender 86 7 recognise harm done victim crime community 87 offence manslaughter described protean one one circumstance offending found broadest expanse possibility note following statement johnson j inr v van xuan nguyen 2005 nswsc 600at 21 24 21 maximum penalty prescribed offence manslaughter imprisonment 25 year 24crimes act 1900 offence manslaughter involves unlawful taking human life long recognised one dreadful crime criminal calendar r v hill 1981 3 crim r 397at 402 r v macdonald court criminal appeal 12 december 1995 bc9501664 court gleeson cj kirby p hunt cj cl said page 8 manslaughter involves felonious taking human life may involve wide variety circumstance calling wide variety penal consequence even unlawful homicide whatever form take always recognised law serious crime see r v hill 1981 3 crim r 397at 402 protection human life personal safety primary objective system criminal justice value community place upon human life reflected expectation system 22 r v blacklidge court criminal appeal 12 december 1995 bc9501665 gleeson cj grove ireland jj agreeing said page 4 long recognised circumstance may give rise conviction manslaughter various range degree culpability wide possible point established sentencing tariff applied case crime manslaughter throw greatest variety circumstance affecting culpability 23 importance denunciation sentencing manslaughter stressed r v macdonald page 9 little assistance gained reference sentencing statistic encompass form manslaughter save far disclose broad range within sentence passed since compilation began r v mohamad ali 2005 nswsc 334at paragraph 61 24 sentence manslaughter must reflect seriousness unlawfully taking life another human great moment whether killing characterised coming within particular head manslaughter rather question sentence required reflect objective fact way retribution denunciation subjective circumstance necessary deterrence r v walsh 2004 nswsc 111 2004 142 crim r 140at 149 paragraph 40 r v mohamad ali paragraph 56 88 offender counsel drew court attention recent case ofmoananu v r 2022 nswcca 85 particular submission founded case rather put forward example case canvassing range different circumstance resulting charge similar present ground appeal offender succeeded inmoananuwas sentence manifestly excessive appellant pleaded guilty 2 count manslaughter respect one count additional three traffic offence taken account way form 1 procedure one deceased pregnant twin third count aggravated dangerous driving occasioning grievous bodily harm three form 1 offence driving wrong side road causing bodily harm fourth person driving without license driving cannabis present blood offender blood alcohol limit excess 2 prior driving spent eight hour pub driving erratic weaving traffic excessive speed driving extended 6 km 89 finding objective seriousness two manslaughter offence fell within high end range objective seriousness within worst category case 90 subjective case strong one finding remorse deprived dysfunctional childhood mitigating feature deprived childhood extreme including offender beaten mother piece wood nail childhood history abandonment family violence dysfunction exposure alcohol offender taken family parent longer wanted offender scavenged food school garbage bin parent gambled away money age 10 offender left charge baby brother died night 91 limitation assistance gained comparable case recognised bymoananu see eg 7 time reference made numerous case course determining whether ground manifest access made indicative sentence 8 ½ year 9 year 4 ½ year application 25 discount noted justice hamill 67 starting point therefore 11 year four month 12 year six year aggregate sentence imposed 15 year non parole period 10 appeal majority indicative sentence 25 discount 7 year 6 month 8 year 3 month 4 year 6 month aggregate sentence imposed 12 year six month non parole period 8 year 4 month 92 called comparable case bearing mind limitation helpful demonstrating range factual situation charge occur connection motor vehicle also showing example length sentence given case justice hamill commencing 141 referred following case paragraph citation omitted 92 1 smith v r 2020 nswcca 181 offender consistently drove car dangerous speed period far momentary twice drove bush supermarket ignored offer made twice friend drive home scraped car speed hump narrowly missed small boy dog one point right side car airborne narrowly missed vehicle travelling opposite direction speed said extreme lack control car objective gravity offence said extreme one person killed occurred road near taree sentence imposed 9 year imprisonment non parole period 6 year 9 month drove cannabis system like mr moananu strong similar subjective case sentence found manifestly excessive reduced term 7 year 6 month non parole period 5 year 92 2 woodbridge v r 2010 nswcca 185 offender grossly intoxicated collided median strip curve crashed oncoming traffic one person died surviving victim became wheelchair bound blood alcohol reading 277 area travelled 9 km built area including school shopping centre matter proceeded trial sentence imposed 6 year imprisonment non parole period 4 year crown appealed sentence increased 7 year non parole period 4 year manslaughter 3 year term grievous bodily harm accumulation extent 2 year effective sentence 9 year non parole period 6 year 92 3 duncan v r 2012 nswcca 78 offender driving five young people time crash accelerated 200 km h failed take bend collided number tree two passenger killed three suffered serious injury count manslaughter 9 year 6 month sentence non parole period 5 year imposed three dangerous driving offence fixed term 3 year imposed overall sentence amounted 12 year 6 month non parole period 8 year held manifestly excessive92 4 incrowley v r 2021 nswcca 45the offender pursued police travelled speed exceeding 140 km h 70 km h zone evaded police later observed travelling flow oncoming traffic side swiping several car colliding vehicle first victim head collision another car three passenger seriously injured one person killed time collision travelling 144 km h 80 km h zone driving described dangerous extreme manifesting abandonment responsibility approaching highest level indicative sentence applying 25 discount 11 year manslaughter 4 year 8 month dangerous driving charge aggregate sentence imposed 14 year 3 month non parole period 10 year court criminal appeal intervene described sentence severe one 93 note assessed objective seriousness present manslaughter offence mid range grievous bodily harm offence case low mid range driving present case represented abandonment care responsibility fellow road user example irresponsible driving egregious example given whilst excessive speed highway traffic whilst present could described evidence modest maximum speed referred fact 144 km h highway speed limit stated fact infer likely either 100 km h 110 km h time vehicle came contact causing driver lose control lancer speed travelled approximately 102 km h 112 km h offender remained correct side road built area adverse offender case factor identified 26 element pursuit offender lancer manner pressing lancer moving right thus room 94 returning purpose sentencing case general deterrence important seemoananuat 4 tempered acceptance submission based onmillwood also accept submission crown strong need denounce behaviour need make offender accountable action protect community well recognise harm done victim community also necessary structure sentence promote rehabilitation appreciate purpose sentencing mentioned view particular weight given deterrence general specific denunciation recognising harm done protecting community already noted weight give deterrence tempered subjective case remains important issue motor vehicle ever present day day life member community driven manner driven pose significant risk harm 95 need promote rehabilitation view case purpose met consideration special circumstance sound basis finding special circumstance accept history offender childhood trauma found basis finding social deprivation make principle case asbugmyandmillwoodhave role play 96 background offender fact 37 mean hope rehabilitation would lengthy process psychological report recounted set bright future realistically viewed suggests chance reoffending successfully rehabilitating good 97 favourable offender offending far worst offending engaged despite background lifetime seemingly spent environment antisocial conduct say record good simply one involved offending serious reference manslaughter grievous bodily harm charge also drug offending serious breaking enter stealing 98 offender offending adult life age 34 remained nature suggests scope rehabilitating lead pro social life facilitate statutory ratio balance term non parole period increased 99 respect offence also committed whilst offender conditional liberty must taken account relevant overall sentencing process despite horrific event occurred december 2018 offender carried criminal lifestyle whilst found expressed remorse indeed remorseful weight given finding tempered fact slow realised 100 sentencing break enter steal offence focus need deterrence tempered subjective case finding protection community well denunciation accountability said drug offending firearm offence greater emphasis case protection community consideration rehabilitation apply offence way found respect manslaughter grievous bodily harm charge 101 need stated issue appropriate sentence term full time custody respect offence reproduced table appeared earlier reason amended longer indicate date offending instead show objective seriousness assessment indicative sentence offence application 25 discount respect two matter standard non parole period necessary also indicate non parole period would applied sentence aggregate sentence approach period set table table indicative sentenceschargemax pensnppform 1obj serindind le 25 manslaughter daniel elliott25 yno52abmid8 y6 ymanslaughter jared ward25no52abmid8 y6 ygbh renee fox10452ab 2 low mid4 y3 ysupply 72 25 meth15nos25 1 x 2 112 g 9g methlow mid3 y2 3 magg bes205nohigh low3 y2 3 mposs firearm14nos65 3 po ammolow2 y18 mposs loaded firearm public place10nohigh low16 m1 y102 non parole period grievous bodily harm offence aggravated break enter steal offence aggregate sentence imposed would approximately 2 year 3 month 20 month respectively period approximate ration non parole period set aggregate sentence set differs standard non parole period assessment objective seriousness case middle range objective seriousness referred ins54a also due factor founding finding special circumstance totality103 question totality proceed basis sentence reflect overall criminality offender way discussed inr v mak 2006 nswcca 381at 15 18 passage make point aggregation sentence appropriate measure total criminality involved point made severity sentence simply linear extremely long total sentence may crushing sense creating feeling hopelessness offender time impression given discount given multiple offending 104 principle regarding totality reviewed ra hulme j inhall v r 2021 nswcca 220at 52 et seq 54 r v holder 1983 3 nswlr 245was referred make plain required sentencing judge evaluate overall criminality involved offence adjust aggregate sentence achieve appropriate relativity totality criminality totality sentence put perhaps even simply honour referred tomill v queen 1988 hca 70where said court must look totality criminal behaviour ask appropriate sentence offence 105 significantly case manslaughter grievous bodily harm charge clearly discrete drug offence turn discrete break enter steal offence despite may reasonably suspected firearm offence evidence also separate 106 regard separateness offence note 60 ofhallhis honour referred well known passage ofcahyadi v r 2007 nswcca 1 question posed whether sentence one offence comprehend reflect criminality another offence importantly present case passage 27 includes following regardless whether offence represent two discrete act criminality regarded part single episode criminality course likely offence discrete independent criminal act sentence one offence cannot comprehend criminality similarly part single episode criminality common factor likely sentence one offence reflect criminality 107 offender submission recognised discrete nature different category offending accept submission manslaughter reckless grievous bodily harm offence significant degree concurrence arise conduct concurrency total submission effect offence separate consequence death grievous injury must reflected aggregate sentence 108 crown submitted significant degree accumulation respect drug charge would reason submission would made respect aggravated break enter steal firearm offence also offender conceded would significant accumulation across different category offending accept consider aggregate sentence must one crushing one also bear mind submitted offender whilst different category offending one sense discrete disconnected criminality common thread lifestyle led offender arising circumstance life set determination sentence109 adopting principle present case make reasoning clear based indicative sentence assessed notional aggregate sentence manslaughter reckless grievous bodily harm offence separately notional aggregate sentence firearm offence taken account indicative sentence drug offence aggravated break enter steal offence made final overall assessment aggregate sentence approach arrived notional aggregate sentence manslaughter reckless grievous bodily harm offence 10 year firearm offence 2 year considering indicative sentence drug break enter steal offence 2 year 3 month together notional aggregate sentence ultimate aggregate sentence 14 year 110 approach may appear cumbersome considering outcome care need applied ensure recognised notional aggregate sentence 10 year already arrived applying principle totality assessment made without recourse notional aggregate sentence process adopted assessment undertaken come result 111 non parole period consistent finding special circumstance basis finding 9 year note applying statutory ratio non parole period would 10 year 6 month additional period allowed supervision 18 month period consistent found need long term supervision 112 party differed date sentence backdated offender arrested 3 july 2019 custody since time time ico later revoked expiring date 18 february 2020 offender contends commencement date 3 july 2019 crown submitted later date appropriate reflect different offending ico imposed offending firearm offence possession prohibited drug due nature firearm offending accept crown submission serious charge commencement date 1 november 2019 113 offender convicted two count manslaughter one count recklessly causing grievous bodily harm convicted serious violence offence defined bys5aof thecrimes high risk offender act 2006 nsw pursuant tos25c 1 act offender warned existence act application orders114 offender convicted 7 charge set table 115 taking account objective seriousness matter subjective matter detailed taking account various form 1 matter relation particular offence relate applying 25 discount early plea guilty offender sentenced aggregate term imprisonment 14 year date 1 november 2019 non parole period 9 year date 1 november 2019 expiring 31 october 2028 |
Lorreck & Watts [2018] FamCA 106 (23 February 2018).txt | lorreck watt 2018 famca 106 23 february 2018 last updated 8 march 2018family court australialorreck watt 2018 famca 106family law order stay interim order refusedfamily law act 1975 cth aldridge keaton stay appeal 2009 famcafc 106applicant m lorreckrespondent mr wattsindependent child lawyer m l mcgregorfile number cac23of2009date delivered 23 february 2018place delivered sydneyplace heard sydneyjudgment gill jhearing date 23 february 2018representationcounsel applicant mr hassallsolicitor applicant joseph tallaritasolicitor respondent self representingsolicitor independent child lawyer legal aid actordersthe application stay dismissed direction listed 21 may 2018 vacated matter listed direction 3 may 2018 4pm mother granted liberty attend telephone day note form order subject entry order court record notedthat publication judgment court pseudonymlorreck wattshas 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 sydneyfile number cac 23 2009ms lorreckapplicantandmr wattsrespondentreasons judgmentthis application stay interim determination pending hearing appeal matter interim determination involved reversal residence previously well settled arrangement two child living mother far north queensland arrangement place since approximately 2012 interim order involved change living mother attending school north queensland living father canberra attending school canberra involved change household live mother previously spent life although part shared father living father stayed school holiday period along stepmother sibling principle relating granting stay appeal helpfully set case ofaldridge keaton stay appeal 1 iwas taken principle applicant regarded salient touch upon ideal principle first accepted applicant onus establish proper basis stay applicant stay however accept necessary applicant demonstrate special exceptional circumstance respondent proceeding mr watt person obtained judgment entitled benefit judgment entitled presume judgment correct certainly case mere filing appeal insufficient grant stay bona fides applicant briefly addressed accept genuine interest genuine desire prosecute appeal matter application appropriate bona fides addressed matter particular weight proceeding risk appeal may rendered nugatory stay granted generally factor relates risk destruction loss subject matter proceeding stay granted sometimes difficult matter apply child related proceeding arrangement concerning child dynamic many respect accept acknowledged judgment first instance although accept independent child lawyer technically correct describe change child live effect final decision matter capacity significant impact upon final disposition matter course true settled arrangement child living matter significant impact upon final proceeding fall determined light number different consideration final proceeding matter may accentuate weight matter relationship fracturing relationship child mother however regard failure grant stay render appeal ultimately final proceeding nugatory matter weighed balance making original determination context final hearing seems likely take place time appeal matter ordinary course event helpfully taken ground appeal counsel mother order ass strength proposed appeal rely upon exchange counsel relation ground accepting may wrong assessment present ass strong ground part seem reliant upon misunderstanding reasoning expressed theex temporereasons given appear heavily reliant upon critique weight given discretionary factor constitutes valid ground appeal notoriously difficult ground appeal make good relation discretionary decision present ass strength proposed appeal strong key matter relation determination issue stay relate desirability limiting frequency change child living arrangement best interest child case interim proceeding reached conclusion difficulty term fracturing relationship mother particular oldest child x material put relation stay reinforces presently case assessment importance particular matter interim proceeding remains important assessment whether stay granted strong reason grant stay particularly may cause degradation relationship child x mother independent child lawyer helpfully drew attention effect granting stay would mean proceeding child moved living full time mother commencing new school start semester canberra albeit number week stage appeal next step process hearing appeal stay child returned stage could result return canberra pending shortly thereafter likely occur final hearing may well result return b town prospect potential frequency change would child interest proceeding particularly circumstance change living arrangement return b town moment face prospect returning relationship assessed interim proceeding basis material currently put still strongly fractured feature matter together tell appropriateness granting stay particularly interest child accordingly stay refused certify preceding six 6 paragraph true copy reason judgment honourable justice gill delivered 23 february 2018 associate date 23 february 2018 1 2009 famcafc 106 |
Paracella Pty Ltd ATF The Kelvin Flintoff Family Trust and Comptroller-General of Customs [2021] AATA 1988 (29 June 2021).txt | paracella pty ltd atf kelvin flintoff family trust comptroller general custom 2021 aata 1988 29 june 2021 last updated 2 july 2021paracella pty ltd atf kelvin flintoff family trust comptroller general custom 2021 aata 1988 29 june 2021 administrative appeal tribunaladministrative appeal tribunal 2020 4831taxation commercial division paracella pty ltd atf kelvin flintoff family trustapplicantand comptroller general customsrespondentcorrigendumtribunal deputy president boyledate corrigendum 1 july 2021place perththe tribunal directs registrar pursuant tosubsection 43aa 1 theadministrative appeal tribunal act 1975 alter text decision application word australian standard effect agrees para 34 reason deleted replaced applicant submission fact evidence agree andin first sentence para 41 reason word inserted word word meet sgd deputy presidentdivision taxation commercial divisionfile number 2020 4831re paracella pty ltd atf kelvin flintoff family trustapplicantandcomptroller general customsrespondentdecisiontribunal deputy president boyledate 29 june 2021place perththe decision review refuse refund application affirmed sgd deputy president boylecatchwordscustoms decision toreject applicant application refund duty paid respect steel pallet racking whether steel pallet racking constitutes like good purpose act statutory interpretation dimension adjusted required project blue sky principle 15aaacts interpretation act 1901 cth applied pallet racking question fall within scope australian standard 4084 2012 reviewable decision affirmedlegislationacts interpretation act 1901 cth 15aaadministrative appeal tribunal act 1975 37 1 competition consumer act 2010 cth sch 2customs act 1901 cth s 8 1 42 163 163 1 b 269tc 4 269td 269tg 273ga 1 haaa custom tariff anti dumping act 1975 cth 8customs regulation 2015 cth regs 102 103 104 105 106 107 108 109 110 111 112casescarter australian security investment commission 2020 aata 809collector custom v agfa gevaert ltd 1996 hca 36 1996 186 clr 389eley tax practitioner board 2020 aata 3192gm holden limited v commissioner anti dumping commission 2014 fca 708kang secretary department social service 2019 aata 758marine power australia pty limited marine power international pty limited v comptroller general custom outboard marine australia pty limited yamaha motor australia pty limited 1989 fca 210minister state home affair v siam polyethylene co ltd 2010 fcafc 86project blue sky v australian broadcasting authority 1998 194 clr 355weston cleanaway operation pty ltd 2018 aata 3740woodbridge v comcare 1994 fca 1249reasons decisiondeputy president boyle29 june 2021the applicationthe applicant seek review decision respondent made unders 163of thecustoms act 1901 cth custom act reject applicant application refund duty paid respect steel pallet racking imported applicant backgroundthe following background fact taken respondent statement finding material question fact reason decision 1 dispute 13 november 2017 anti dumping commissioner adc initiated investigation regarding steel pallet racking exported china malaysia publishing initiation notice 2 pursuant tos 269tc 4 thecustoms act good subject application notice unders 269tc 4 refers described follows steel pallet racking part thereof assembled unassembled dimensionsthat adjusted required without locking tab slot orbolted clamped connection including following beam upright 12m brace without nut bolt informationthe good adjustable static racking structure capable carrying storingproduct load component used make static racking structure adjustable racking structure typically made cold formed hot rolledsteel structural member includes component plate rod angle shape section tube like welding bolting clipping typicalmethods used assemble may racking installed within building typical storage configuration comprises upright frame perpendicular theaisles independently adjustable positive locking beam parallel aisle spanning upright frame brace designed support unit loadactions racking layout component used designed get bestefficiency shape volume item stored applicableaustralian standard as4084 2012 3 18 june 2018 adc pursuant tos 269tdof thecustoms act issued preliminary affirmative determination pad public notice 4 sufficient ground publication dumping duty notice necessary require take security relation export good consideration guc china malaysia prevent material injury australian industry occurring investigation continued issue pad australian border force abf officer officer custom purpose thecustoms act took security pursuant tos 42of thecustoms actfor import guc pending completion investigation including security applicant 6 may 2019 minister industry science technology published anti dumping notice pursuant tos 269tgof thecustoms act theadn 5 adn applied export guc like good exported australia home consumption since 19 june 2018 adn described guc term initiation notice referred 4 adn minister accepted recommendation reason material finding fact adc final report 441 6 report also described guc term initiation notice 7 paragraph 3 5 1 report considered rejected claim made applicant referred therein abbott storage steel pallet racking adjustable dimension adjustable required 8 adc satisfied applicant pallet racking within scope guc dumping duty notice published respondent sought enforce security convert payment interim dumping duty relevant past entry including applicant collect interim dumping duty import guc applicant eventually paid assessed duty applicant interested party applied anti dumping review panel adrp review minister decision publish adn adrp published report 103 regarding review 27 august 2019 9 para 1 3 27 81 report adrp referred considered rejected claim made applicant referred abbott steel pallet racking adjustable dimension adjustable required adrp also rejected claim made review applicant recommended minister decision affirmed minister affirmed decision 26 september 2019 10 abf sent letter applicant 24 april 2020 explained imported pallet racking considered like good guc therefore subject dumping duty reference finding adrp adc material available abf regarding subject good 11 letter dated 10 july 2020 12 submitted abf 13 july 2020 schenker australia pty ltd agent applicant 13 applicant applied refund dumping duty paid basis refund application stated imported good meet description good subject dumping measure actual evidence available date good ability acheive sic performance characteristic specified description good exists ample actual evidence contrary actual evidence available date good exist ability acheive sic performance characteristic specified description good possible ass whether abbott imported good could like good 14 according screenshot dated 28 september 2020 headed refund approve reject applicant appplication refund dumping duty apparently rejected following text inserted next heading statement eligible claim dumping good exemption consider complete system contain verticle post multiple hole allow placement adjustment horizontal beam bracing support etc therefore making adjustable refund rejected 15 despite recording department user id document clearly identify making decision apparently refuse refund duty paid statement contained document see 13 suggested response request exemption application dumping duty rather application refund duty paid language document however indicated rejection application refund email dated 11 august 2020 marlon elli whose position described email senior border force officer national refund intervention trusted trader trade compliance branch custom group australian border force advised schenker australia pty ltd submitted applicant application refund duty see 12 acknowledging schenker australia pty ltd sic trusted trader broker refund lodged amber letting know rejected 16 application review lodged applicant aat 11 august 2020 17 identified decision review sought received 11 august 2020 18 application review attached email mr elli dated 11 august 2020 referred 15 attach document referred 13 appear reason decision statement section undated document referred 13 given applicant time 30 september 2020 respondent lodged tribunal statement finding material question fact reason decision accordance withs 37 1 theadministrative appeal tribunal act 1975 cth 37statement 19 document form statement signed mr elli dated 29 september 2020 jurisdictionby document headed respondent fact contention lodged tribunal 3 december 2020 respondent sfc respondent identified tribunal jurisdiction review decision 163 regarding application refund duty arsing unders 273ga 1 haaa thecustoms act 20 section provides tribunal review decision collector undersection 163in relation application refund rebate remission duty thes 37statement mr elli stated made decision reject application refund made paracella pty ltd atf kelvin flintoff family trust delegate comptroller general custom 21 section 273ga 1 haaa empowers tribunal review decision collector unders 163of thecustoms act comptroller general custom submission made either party tribunal power review decision made delegate comptroller general given thats 273ga 1 haaa specifically refers collector answer appears provided bys 8 1 thecustoms actwhich relevantly provides 1 act reference collector collector reference comptroller general custom evidence tribunal mr elli delegated make decision unders 163of thecustoms acton behalf respondent least evidence tribunal taken noting document comprised 765 page contended either party case tribunal proceeds assumption mr elli delegated tribunal event note decision refund duty decision matter fact made someone apparent authority effect given decision would even made without due authority decision tribunal could review woodbridge v comcare 22 60 per hill j weston cleanaway operation pty ltd 23 69 70 tribunal satisfied decision refund dumping duty paid applicant decision tribunal review virtue ofs 273ga 1 haaa thecustoms act hearingthe application heard 22 april 2021 mr k flintoff director applicant represented applicant mr r northcote appeared respondent following document admitted evidence applicant submission fact evidence dated 15 january 2021 a1 b website extract iria filed tribunal mr flintoff 21 april 2021 a2 c respondent statement fact issue contention filed tribunal dated 3 december 2020 r1 respondent reply applicant submission filed tribunal dated 5 february 2021 r2 e australian standard 4084 2012 r3 f document volume 1 2 filed tribunal 12 april 2021 r4 document submission provided applicant 21 april 2021 end relevant tribunal consideration legislative frameworksection 269tgof thecustoms actrelevantly provides 1 subject tosection 269tn minister satisfied good exported australia amount export price good le amount normal value good b material injury australian industry producing like good caused threatened establishment australian industry producing like good may materially hindered ii case security taken undersection 42in respect interim duty may become payable good section 8 dumping duty act material injury australian industry producing like good would might caused security taken minister may public notice declare section 8 act applies c good respect minister satisfied like good exported australia commissioner made preliminary affirmative determination section 269td respect good referred paragraph c publication notice section 269tof thecustoms actdefines like good follows like good relation good consideration mean good identical respect good consideration although alike respect good consideration characteristic closely resembling good consideration section 163 1 b thecustoms actrelevantly provides refund duty may made circumstance subject condition restriction prescribed thecustoms regulation 2015 cth custom regulation relevantly prescribe circumstance condition regs 102 112 claimed refund circumstance refund circumstance could potentially apply matter circumstance prescribed item 6 table sch 6 thecustoms regulationwhich duty paid good manifest error fact patent misconception law issuesthe applicant submission fact evidence a1 specifically identify issue issue determined tribunal respondent sfc identified issue whether refund application correctly refused involves following whether applicant adjustable steel pallet racking subject dumping duty notice requires consideration whether pallet racking like good guc b whether duty paid manifest error fact patent misconception law 24 applicant written submission specifically identify issue determined tribunal applicant submission written made mr flintoff hearing addressed issue identified respondent submission identified 28 tribunal considers issue determination whether good relation applicant paid duty come within scope adn hearing proceeded basis issue respondent submissionsthe respondent sfc provided first respondent contends prescribed refund circumstance cannot apply good subject adn guc like good guc expressed negative tribunal understands respondent position good relation duty paid come within operation adn like good guc duty paid properly refundable respondent argues adjustable pallet racking system applicant paid duty like good guc identical guc respondent contends tribunal reject applicant argument reason adc see 8 adrp see 10 rejected argument respondent contends description guc consists two part initial description information adrp held description construed applied whole upon clear subject good within guc referring initial description subject good clearly steel pallet racking part thereof imported unassembled relevant part imported include beam upright respectively incorporate locking tab slot brace part also nut bolt ii steel pallet racking clearly dimension adjusted required applying ordinary meaning term term construed context clearly requires pallet racking adjustable dimension rather individual part one applicant claim significant dimension subject good adjusted required particular installation selecting different component fitting together different way obvious dimensional adjustment made set beam upright adjust height horizontal beam installed selecting different slot upright tab beam inserted mean height storage level racking adjusted b consideration information adn confirms subject good within good description since every sentence information clearly applies subject good relevantly subject good adjustable static racking structure australian standard as4084 2012 applies extract standard referred adrp 25 as4084 2012 applies adjustable static pallet racking made made cold rolled hot rolled steel structural member storage system comprising upright frame perpendicular aisle independently adjustable positive locking pallet beam parallel aisle spanning upright frame designed support unit load action c description adjustable static pallet racking as4084 2012 similar part good description guc adn guc good description clearly intended include legally include adjustable static pallet racking described as4084 2012 subject good adjustable static pallet racking described claimed applicant comply as4084 2012 applicant previously admitted subject good adjustable steel pallet racking described as4084 2012 claimed subject good dimension adjusted asrequired customer may require adjustment cannot precisely accommodated limited incremental adjustment system allows e adc adrp correctly rejected claim adc found requirement pallet racking adjustable required necessitate ability infinitely position reposition beam brace specific precise height pallet racking system observed commission including abbott storage feature evenly spaced slot along upright upon beam brace placed required height adjusted different height required 26 f adrp 27 correctly construed phrase dimension adjusted required ordinary meaning requiring steel pallet racking length height breadth depth dimension arranged changed suitable adrp 28 found phrase dimension adjusted required meant restrict good covered specify particular type pallet racking system g adn specie delegated legislation ordinary principle statutory interpretation apply 29 meaning description guc including requirement steel pallet racking dimension adjusted required must ascertained considering phrase context whole instrument striving give harmonious effect word used giving effect purpose instrument possible 30 h case law developed high court ands 15aaof theacts interpretation act 1901 cth require interpretation consistent purpose instrument preferred interpretation interpretation result instrument effect therefore obviously avoided applicant interpretation adjustable steel pallet racking dimension adjusted required adjustment made limited rather infinite would result dumping duty notice applying good reason accept illogical absurd interpretation result obviously accord purpose adn context adn applies adjustable steel pallet racking adjustment length breadth depth height dimension including height storage level made guc clearly include adjustable steel pallet racking described as4084 2012 need depart literal grammatical meaning adn arrive sensible interpretation accord evident purpose adn j necessary depart literal grammatical meaning adn find sensible legal meaning give effect purpose done required principle expounded high court case asproject blue sky v australian broadcasting authority 31 project blue sky applicant submissionsthe applicant submission fact evidence dated 15 january 2021 following effect description good includes performance characteristic dimension adjusted required constructed combination performance action dimension adjusted ii scope action performed required b importer required self ass whether imported good meet good description scope removing changing wording description match product adc provide confirmation whether certain good meet description c response enquiry made adc october 2018 adc advised wording description could changed good description stated dumping commodity register dcr steel pallet racking exactly state decision reject refund considers good meet description good meeting part description ignored requirement adjustment required good therefore meet relevant description e dcr express text wording description good include information text confirming separability description good information highlighting inappropriate unfounded attempt apply focus information expense description good f investigation 441 carried adc flawed negligent self contradictory incomplete party able supply physical demonstrative evidence steel pallet racking capable carrying performance characteristic specified description good adc adrp refused every offer made applicant provide demonstrative opportunity evidence g applicant cite theaustralian consumer law 32 fair trading act provision therein relating misleading deceptive conduct including conduct relating description characteristic good applicant appears argue describe good adjustable required would engaging misleading deceptive conduct defined legislation h evidence good exist represented connection supply trade description good without contravention australian consumer law established like good except basis australian consumer law breached initially adrp refers comment adc purpose steel pallet racking system assemble multitude configuration adjusted required 33 manifest error fact purpose steel pallet racking system store palletised good ability system configured adjusted feature system purpose system adc adrp demonstrate undeveloped inadequate understanding steel pallet racking j adrp dismisses evidence became available investigation favour initially understood 34 nullifying investigation avoidance non acceptance evidence agree initial understanding k dimension system adjusted scope required represent dimension connection supply good contravention australian consumer law reliance construal actual term context become direct cause severe injury death l paragraph 8 1 3 8 1 4 8 2 as4084 2012 specify prohibition altering deviating load application configuration furnished racking installation requirement plaque racking specifying amongst thing load limit prohibition unauthorised alteration requirement regular inspection accordingly steel pallet racking described as4084 2012 legally excluded description good guc respondent replyby reply dated 5 february 2021 respondent contended applicant submission fact evidence agree adjustable steel pallet racking dimension adjusted denies adjustment made required b thus applicant claim two word dumping duty notice apply applicant effect concedes every word good description dumping duty notice including information applies subject good c applicant claim subject good dimension adjusted required basis phrase must construed requiring pallet racking infinitely adjustable exactly user may desire applicant submission repeat previous claim effect adn apply good applicant construction correct manifestly absurd result dumping duty notice apply good applicant construction incorrect absurd result must avoided either applying appropriate ordinary meaning phrase construed context necessary departing literal meaning order give dumping duty notice sensible legal meaning e relation applicant argument effect as4084 2012 shelving cannot adjusted installed respondent repeat adrp dismissal argument follows also note abbott statement installed altered abbott refers australian standard regard however mean good unable adjusted different height undertaken accordance australian standard f adjustment beam height inserting beam taking beam produce le pallet storage level known advertised feature adjustable pallet racking g insofar applicant relies australian consumer law law restrict application high court case statutory construction australian consumer law prohibits false misleading claim made good trade commerce law construing applying legislative instrument good applicant argument explained mr flintoff hearing following relevant exchange took place tribunal concede rack adjusted quite sure significance required argument mean installed loaded operational adjusted point say effect word quote required mr flintoff well required mean according need tribunal yes mr flintoff freely liberally really totally opposed actual nitty gritty system tribunal sense adjustable mr flintoff adjusted represent adjust like according need got way adjusted go back engineering process recertified represent adjusted required someone pick yes got dead employee example tribunal well unlawfully adjust unsafe would contrary mr flintoff yes exactly adjusting required australian standard technically exactly law tribunal well say assuming person shelf well argument seems assume required equal adjustable installed place fully loaded mr flintoff necessarily fully loaded tribunal well okay loaded surely adjustable prior installation instance got particular need adjust shelf suit need mr flintoff yes prior installation come back like tailoring system tribunal installation provided done safely adjust mr flintoff exactly right approached adc said add word required require apply restraint put forward mr flintoff people get difficult one even explain client say know got notch shift got say like people think represent require open door problem know could come back person actually ticked box said yes want person obviously 35 tribunal yes perhaps might want clarify mr northcote intimated suggested two element think applicant argument relation required first element think addressed opening argument say insofar slot column upright shelving adjustable like infinitely adjustable insofar somebody requires particular dimension may dimension accommodated either location slot guess engineering integrity may require certain shelf certain distance column instance assume without reading technical specification one shelf instance ground level shelf six metre ground ten metre ground assume requirement torsional lateral stability would provided shelving correct mr flintoff correct tribunal sense infinitely manufacture theoretical configuration say well part argument connotation required must mean required circumstance mr flintoff yes guess tribunal circumstance mr flintoff yes well implies take indistinct product supply pallet racking person say steel pallet racking dimension adjusted required go yes got problem like obviously represent tribunal argument required effectively read infinitely adjustable mr flintoff well correct system possible include required statement statement correct system indistinct evident like mr northcote went referred know everything good apart two word went effectively though word indistinct said indistinct remove word need make correct every instance come back either added say dodgy suppose way try squeeze back left altogether tribunal quite sure explain given pinning whole argument word required would wanted deleted effectively deleted description mr flintoff know mr northcote made bit thing sympathy dumping duty may paid primary consideration primarily money correct according law issue got tribunal surely argument describe shelving adjustable somebody purchase say well hang actually put shelf 293 half centimetre ground level slot seven centimetre apart therefore adjustable mean argument fly mr flintoff score particular point notice actually mention probably brought recently see point law tribunal thought fear accused misrepresenting saying something adjustable mr flintoff fear come obligation relation outcome dollar around dumping bit side dollar involved primary consideration dollar like implication could occur elsewhere know mr northcote said know pas information onto end user go anywhere say put line send well dumping commission tell like actually given writing cross word change got mean saying 36 tribunal sorry maybe put context seemed mr northcote raising two line argument raised second outlined opening issue required connoting temporal qualification adjusted time whether already assembled certified loaded one argument saying required somehow connotes adjustable time second element aware mr northcote raised argument say adjustable required effectively equates infinitely adjustable argument still running mr flintoff point tribunal well say point need know argument purpose properly addressing mr flintoff far correctly representing product see consequential issue brought recently putting argument aat whole lot stuff obviously go part know question law tribunal really issue looking whether consequence say may flow customer potentially misled description give product purpose determining whether duty applies role solely fact investigation decision gone interest really relevant consideration required hearing tribunal called hearing de novo make decision correct preferable decision based evidence presented thing investigation historical interest provide background really relevant consideration case involving duty role simply determine whether good question fall within description good description contained anti dumping notice sole job understand argument primarily running adjustable required connotes adjustable installed loaded tribunal primary argument word construed meaning assembled say assembled unassembled adjustable required meant cover situation shelf adjustable point already assembled potentially certified engineer safe potentially even loaded pallet mr flintoff yes tribunal say meaning word required mr flintoff well tribunal shelf fall within definition mr flintoff 37 conversation mr flintoff tribunal along line continued time mr flintoff returning theme applicant held liable injury damage suffered result someone adjusted shelving assembled shelving loaded adjusting shelving causing unsafe reconfigured form considerationhelpful summary history operation legislative anti dumping scheme effected thecustoms act thecustoms tariff anti dumping act 1975 cth dumping duty act relevant legislation set judgment mortimer j ingm holden limited v commissioner anti dumping commission 38 gm holden 7 11 judgment full court federal court bennett graham flick jj inminister state home affair v siam polyethylene co ltd 39 31 39 tribunal respectfully adopts summary tribunal advised mr flintoff hearing issue tribunal determine proceeding whether good relation applicant paid duty come within operation adn issue respect many applicant submission argument relevant consideration many submission criticised respondent body undertook investigation prepared report made decision criticism body claimed deficiency process undertook relevant tribunal function proceeding role tribunal reach correct preferable decision examine decision review error whether legal evidential substantial role tribunal examine process undertaken body tribunal summarised role tribunal reviewing decision inkang secretary department social service 40 18 follows role tribunal review determine correct preferable decision see shi v migration agent registration authority tribunal limited reviewing decision legal error rather conduct de novo assessment determination matter role original decision maker see yao v minister immigration border protection referring shi 100 per hayne heydon jj 37 per kirby j see also drake v minister immigration ethnic affair reference case cmhv director general security minister foreign affair 37 41 citation omitted present case starting point tribunal consideration adn notice issued unders 269tgof thecustoms actby minister declares 8 dumping duty act applies good subject notice instrument creates liability pay dumping duty applicant sought argue adn invalid otherwise ineffective matter law nothing tribunal suggest case sole issue determination whether pallet racking imported applicant come within description good like good described adn insofar applicant raised issue held liable australian consumer law wanting description good changed deleting word required argument irrelevant issue tribunal determine event beyond jurisdiction tribunal unders 273ga 1 haaa thecustoms act tribunal accept applicant argument pallet racking meet description good like good adn meet criterion adjustable required lockhart j noted inmarine power australia pty limited marine power international pty limited v comptroller general custom outboard marine australia pty limited yamaha motor australia pty limited 42 60 expression like good interpreted narrow restricted fashion one view word required might considered superfluous required cannot taken mean infinitely circumstance applicant contends applicant effect argues shelving cannot adjusted erected loaded least safely adjusted mean shelving cannot adjusted required tribunal reject argument fact obvious step removing load must taken shelving adjusted safely mean racking system adjustable required applicant argument also confuses description good particular characteristic good case adjustability circumstance adjusted fact certain operational application may possible matter fact adjust shelving accommodate altered requirement adjust shelving safely mean shelving adjustable required physical characteristic change simply mean step may need taken shelving safely adjusted required better suit particular requirement tribunal understands applicant rely argument shelving adjustable required shelving adjustable dimension due dimension limited slot component mr flintoff exchange tribunal quoted 35 indicated applicant longer relied argument argument tribunal would accepted word required could taken context purpose legislative regime language relevant provision mean infinitely adjustable clearly shelving system going subject certain constraint whether matter centimetre inherent nature component supplied unassembled form law physic make certain configuration impossible impose gloss word required unwarranted would render description good application respondent submission pointed meaning description good including requirement steel pallet racking dimension adjusted required must ascertained considering phrase context whole instrument striving give harmonious effect word used giving effect purpose instrument possible project blue skyat 69 71 proposed interpretation lead result absurd would render provision futile avoided collector custom v agfa gevaert ltd 43 401 applicant submission effect concede interpretation contended would render adn application see 33 f 33 g 15aaof theacts interpretation act 1901 cth requires interpretation consistent purpose instrument preferred interpretation case event tribunal agrees respondent submission pallet racking fall within as4084 2012 specifically identified adn literal meaning adn result pallet shelving coming within scope good like good applicant adjustable steel pallet racking allows dimensional adjustment made covered as4084 2012 come within operation adn project blue skyat 70 decisionthe decision review refuse refund application affirmed ul none list style none certify preceding 45 forty five paragraph true copy reason decision herein deputy president boyle sgd associatedated 29 june 2021date hearing 22 april 2021counsel applicant mr k flintoffcounsel respondent mr r northcotesolicitors respondent department home affair 1 r4 t2 2 r4 t3 3 r4 t3 57 4 r4 t4 5 r4 t31 6 r4 t28 7 see para 7 r4 t28 352 3 8 r4 t28 356 7 9 r4 t40 10 r4 t44 11 r4 t56 1 12 r4 t61 1 13 r4 t61 14 r4 t61 1 732 15 r4 t62 755 16 r4 t63 763 17 r4 t1 18 r4 t1 9 19 r4 t2 20 respondent fact contention respondent sfc para 7 21 r4 t2 41 22 1994 fca 1249 23 2018 aata 3740 24 respondent sfc para 8 25 r4 t40 550 para 61 26 r4 t28 356 27 r4 t40 552 28 r4 t40 554 29 citingcollector custom v agfa gevaert ltd 1996 hca 36 1996 186 clr 389at 398 30 citingproject blue sky v australian broadcasting authority 1998 194 clr 355 project blue sky 69 71 31 1998 194 clr 355 32 competition consumer act 2010 cth sch 2 33 r4 t40 544 34 r4 t40 550 35 transcript 7 8 36 transcript 19 23 37 transcript 24 26 38 2014 fca 708 39 2010 fcafc 86 40 2019 aata 758 41 see alsocarter australian security investment commission 2020 aata 809at 50 eley tax practitioner board 2020 aata 3192at 63 42 1989 fca 210 43 1996 hca 36 1996 186 clr 389 |
Ashton Coal Operations Pty Limited re Ashton Coal Operations Pty Limited - Ashton Coal Preparation Plant Workplace Agreement 2010 [2010] FWAA 2484 (26 March 2010).txt | ashton coal operation pty limited ashton coal operation pty limited ashton coal preparation plant workplace agreement 2010 2010 fwaa 2484 26 march 2010 fair work australiadecisionfair work act 2009s 185 approval enterprise agreementashton coal operation pty limited ag2010 6503 ashton coal operation pty limited ashton coal preparation plant workplace agreement 2010coal industrycommissioner robertssydney 26 march 2010application approval ashton coal operation pty limited ashton coal preparation plant workplace agreement 2010 1 application made approval enterprise agreement known theashton coal operation pty limited ashton coal preparation plant workplace agreement 2010 agreement application made pursuant tos 185of thefair work act 2009 act made ashton coal operation pty limited agreement single enterprise agreement 1 agreement contain flexibility term pursuant tos 202of act model flexibility term taken term agreement 2 satisfied requirement ofss 186 187and188of act 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 act note agreement cover organisation 4 agreement approved accordance withs 54of act operate 2 april 2010 nominal expiry date agreement 9 march 2013 commissionerprinted authority commonwealth government printer price code g ae875081 pr995482 |
Nouri v Australian Capital Territory [2018] ACTSC 275 (28 September 2018).txt | nouri v australian capital territory 2018 actsc 275 28 september 2018 last updated 2 october 2018supreme court australian capital territorycase title nouri v australian capital territorycitation 2018 actsc 275hearing date 27 september 2017 28 september 2017 3 october 2017 19 october 2017 23 october 2017 24 october 2017 7 february 2018 8 february 2018 27 31 august 2018decisiondate 28 september 2018before elkaim jdecision judgment defendant plaintiff pay defendant cost catchword tort negligence child born significant disability whether parent disabled child ought warned prospect condition content scope duty care causation whether termination would available whether termination would occurredlegislation cited civil liability act 2002 nsw 5d 1 civil law wrong act 2002 act s 42 45and46cases cited australian taxation office ato interpretative decision 2003 617 15 july 2003container terminal australia ltd v huseyin 2008 nswca 320cattanach v melchior 2003 hca 38 215 clr 1fox v percy 2003 hca 22 214 clr 118gaynor n v warrington health authority 2003 lloyd rep med 365groom v selby 2001 ewca civ 1522 2002 lloyd rep med 1mason v demasi 2009 nswca 227meadows v khan 2017 ewhc 2990 qb neville v lam 3 2014 nswsc 607nominal defendant v cordin 2017 nswca 6 79 mvr 210parkinson v st james seacroft university hospital nh trust 2000 qb 266rogers v whitaker 1992 hca 58 175 clr 479veivers v connolly 1995 2 qd r 326waller v james 2013 nswsc 497parties einas nouri first plaintiff musab shaor second plaintiff australian capital territory defendant representation counselmr cranitch sc mr campbell m u okereke fisher 4 5 october 2017 first second plaintiff mr higgs sc m k sant defendant solicitorsgerald malouf partner first second plaintiff act government solicitor defendant file number sc 358 2013elkaim j introduction summary findings1 two plaintiff matter although different surname married couple parent saba nouri born 3 november 2011 severe disability convenience refer first plaintiff m nouri second plaintiff mr shaor antenatal stage saba variously referred twin 2 twin b 2 defendant effectively canberra hospital staff 3 saba disability categorised vacterl association refers abnormality following area vertebral anorectal cardiac tracheao esophageal esophageal renal limb addition saba suffers developmental delay although probably product event occurred birth 4 trachea esophageal fistula tof abnormal connection oesophagus trachea esophageal atresia condition oesophagus end pouch instead connecting stomach 5 way brief summary plaintiff case hospital provided certain information done pregnancy twin b necessary twin would terminated extensive cost associated saba upbringing would avoided 6 plaintiff said failure provide information breach duty care defendant owed plaintiff defendant denied breach duty owed plaintiff added breach breach cause loss claimed 7 central point breach duty whether information twin b condition potential condition birth disclosed plaintiff central point causation whether plaintiff would could secured termination late stage pregnancy information supplied 8 significant point damage whether loss calculated extent saba agreed life expectancy 31 year reached age 18 effectively almost every aspect damage claim challenged plaintiff assessment 9 countered assessment 53 000 9 seen found defendant breached duty care b plaintiff failed prove damage caused breach c plaintiff succeeded damage would assessed 1 813 807 calculation damage based loss extending past saba 18thbirthday background10 beginning 2011 plaintiff two child m nouri became pregnant 20 february 2011 pregnancy unplanned plaintiff resolved proceed pregnancy case want child disability 11 8 july 2011 m nouri ultrasound private clinic canberra national capital diagnostic imaging ncdi informed pregnant twin plaintiff prepared terminate pregnancy either twin likely disabled resolution included termination necessary respect twin 12 ncdi concerned condition one fetus plaintiff referred fetal medicine unit canberra hospital fmu investigate health twin b 13 according referral ncdi dated 8 july 2011 exhibit b ultrasound disclosed twin bcorresponds 18 week 4 day amenorrhea size head circumference 15 73 cm 18 week 5 daysabdominal circumference 13 08 cm 18 week 0 daysfemur length 2 98 cm 19 week 0 daysthe discrepancy biometry two twin significant although significantly different gestational age 19 week 5 day lmp twin b two vessel cordand likely cause growth restriction twin thefoetal heartin twin b also appears slightly larger usual poor visualisation interatrial septum feel twin need expert evaluation referred foetal medicine unit assessment definite abnormality seen 14 first appointment fmu 15 july 2011 ultrasound carried plaintiff spoke dr tan trainee obstetrician recommended amniocentesis test test performed purpose identify chromosomal abnormality fetal infection syndrome example chromosomal abnormality 15 plaintiff say ultrasound 15 july 2011 revealed abnormality twin b little dispute although defendant would probably characterise finding anomaly rather abnormality gestation term 20 week 5 day 16 following first consultation plaintiff case never given full correct information condition twin b said correct information given would elected terminate pregnancy first choice would terminate pregnancy twin b called selective termination 17 however necessary would terminated pregnancy twin twin b termination also referred feticide plaintiff say failure inform breach hospital duty care owed 18 plaintiff say personal experience made alive difficulty faced raising disabled child would hesitation undergoing termination addition pointed pregnancy unplanned right choose plan family desired 19 dispute hospital owed duty care plaintiff defendant accepted whatever content duty owed mother father parent saba mother fmu patient 20 fundamental issue nature content information provided parent provided credit issue dependent whether accept evidence plaintiff defendant given various witness mr cranitch sc plaintiff confirmed course hearing extent contest breach duty 384 385 mr cranitch sc also confirmed allegation negligence part fmu failure inform 384 21 breach duty established causation strongly contested major issue whether plaintiff could terminated pregnancy even provided information would led choose termination general term termination carried little risk 20 week gestation australia subject difference state territory termination public hospital 20 week gestation requires permission ethic committee 22 plaintiff say circumstance case would obtained necessary permission addition say permission forthcoming would travelled elsewhere probably united state america usa termination would available would prepared make journey would financially able incur necessary expense 23 plaintiff claim damage made following head general damage past expense incurred caring saba cost future care saba past future economic loss suffered plaintiff 24 claim general damage specifically expressed include claim nervous shock 25 accepted claim gratuitous service past care available 26 concession duty care owed hospital plaintiff defendant contested claim almost every level content duty dispute causation dispute element damage claim challenged part damage claim like general damage disputed entitlement quantum 27 saba life expectancy initially issue later agreed 31 year present 28 initially cost future care seem heavily contested plaintiff relied report m moylan occupational therapist retained defendant however following evidence given hearing including viewing short video defendant position changed effectively withdrew reliance report 29 ultimately defendant agreed saba required 24 hour care witnesses30 first witness second plaintiff mr shaor born sudan 1975 five sibling parent well notably frequently travelled egypt medical treatment 31 summary oral testimony regarded substitute transcript rather simply highlight portion evidence think deserve specific mention 32 mr shaor attended high school 1995 entered military college hoped officer finish course took different political view sudanese government 1997 completed accounting degree university sudan 33 1997 mr shaor detained six month result political view detention developed post traumatic stress disorder ptsd following release travelled egypt treatment also required treatment knee 34 mr shaor remained egypt three year supported family emotionally financially contribution also made towards treatment united nation high commissioner refugee unhcr 35 mr shaor niece severe disability child required full time care death 2014 noticed toll took family 36 mr shaor came australia 2001 brother luay shaor migration australia arranged unhcr basis mr shaor refugee application also made reside usa rejected mr shaor said rejected revealed familiar use gun received military training 37 mr shaor brother initially located tasmania brother moved sydney established construction business tasmania mr shaor carried seasonal agricultural job also continued treatment ptsd university tasmania clinic antidepressant medication took two year said continues suffer ptsd condition never cease 38 2003 mr shaor returned sudan met future wife m einas nouri married november 2004 came australia together early 2005 time obtained job saudi arabian cultural mission mr shaor employed auditor wife employed academic advisor based canberra 39 plaintiff first child al mohammed january 2006 born canberra hospital complication birth m nouri suffered postnatal depression addition plaintiff happy subsequent treatment m nouri received septicaemia developed birth son m nouri also developed severe back problem birth 40 family went sudan short period returned mr shaor mother came australia assist new child remained australia year m nouri became pregnant early 2008 pregnancy terminated seven nine week gestation m nouri concerned back pain termination effectively put end defendant assertion muslim m nouri would undergone termination pregnancy 41 2009 mr shaor returned sudan volunteered child cardiac facility assisted funding child travel italy heart surgery 42 m nouri became pregnant 2009 delivered daughter safinaz 18 march 2010 calvary hospital plaintiff chose private hospital engaged specialist dr tam wished access required consequence experience m nouri contracting septicaemia first birth stage plaintiff insured paid cost associated birth personally included operation deal postpartum bleeding total cost incurred 18 000 mr shaor mother came australia assist 43 mr shaor travelled sudan june 2010 political climate improved invited government attend investment conference 10 day informed mother ill promptly returned australia arrived mother canberra hospital saline drip liver problem hospital next month december 2010 lapsed coma 44 mr shaor said doctor informed liver transplant available australia mother visa status mother came coma mr shaor made enquiry possibility obtaining treatment germany contacted clinic specialised stem cell transplant 45 mr shaor made arrangement xcell center initially transferred deposit 1 000 clinic subsequently part visa application made payment 4 000 total cost treatment 9 925 exhibit p mr shaor travelled germany mother wife two child 46 spending four day clinic mr shaor mother family spent 15 day hotel germany travelled khartoum mr shaor continued involvement business venture concerning development residential building 47 purpose like evidence demonstrate plaintiff used financially able prepared travel abroad medical treatment 48 january 2011 plaintiff informed saudi arabian cultural mission wished resign employment enable mr shaor pursue commercial venture sudan cultural attaché persuaded mr shaor resign rather take unpaid leave 49 family sudan m nouri told mr shaor thought pregnant plaintiff returned australia intention child intended return sudan pregnancy thought would easier raise large family domestic family assistance available country 50 mr shaor enrolled bachelor politics international relation university canberra returned 2011 intended complete one semester armed credit subject completed continue degree sudan 51 upon returning australia m nouri consulted general practitioner dr el sherif referred ultrasound ncdi appointment friday 8 july 2011 length gestation 19 week 5 day following ultrasound plaintiff informed m nouri pregnant twin pleased news however dr lomas informed one twin single umbilical artery might indicate heart problem referred fmu informed would contacted also told one twin boy girl potential problem female twin 52 plaintiff hear fmu 8 july 2011 early half following week mr shaor made number attempt contact fmu avail 53 plaintiff knew sudanese doctor worked canberra hospital contacted doctor dr latif asked see could get touch fmu appointment dr latif suggested copy ncdi report 8 july 2011 faxed hospital exhibit b appointment made following morning 15 july 2011 54 15 july 2011 gestation 20 week 5 day plaintiff saw dr tan ultrasound carried dr tan asked plaintiff told related information provided ncdi dr tan said single umbilical artery associated chromosomal abnormality suggested amniocentesis test plaintiff agreed test carried told abnormality found would informed 55 next appointment fmu 25 july 2011 gestation 22 week 1 day plaintiff received word result amniocentesis test occasion plaintiff saw dr robertson director fmu 56 dr robertson confirmed amniocentesis test result negative another ultrasound carried suggestion abnormality cardiac abnormality raised mention made twin b abdominal circumference length femur despite appearing possibly abnormal wellbeing report dated 15 june 2011 exhibit 1 page 82 57 convenient point note abdominal circumference relate size even presence stomach measurement waist belt size entry relation abdominal circumference relevant main issue case might appeared first sight 58 ultrasound dr robertson said would organise cardiac test sydney said selective termination possible one twin suffering heart condition conversation dr robertson termination noted mr shaor said organised indistinct go sydney see whether something wrong heart say heart condition confirmed sydney indistinct baby option available looked said consider option said yes said agree heart condition suspect carry risk actually high risk cardiac failure foetus mr cranitch sc mr shaor cardiac failure foetus always better lose one baby mr cranitch sc discussed effectively selective termination mr shaor yes said talk come back sydney confirmed mr cranitch sc understand conversation availability termination least one baby mr shaor available available mr cranitch sc thank talk occasion anything else disclosed early ultrasound mr shoar mr cranitch sc talk example abdominal circumference mr shaor mr crantich sc talk leg length femur mr shaor mr cranitch sc nothing mr shaor nothing mr cranitch sc show result ultrasound explain mr shaor mr cranitch sc conversation far recall cardiac condition possibility terminating one twin mr shaor yes mr cranitch sc change discussion wife earlier terminating need mr shaor mr cranitch sc always option far concerned mr shaor always option mr cranitch sc raise dr robertson mr shaor mr cranitch sc discussion terminating one foetus mr shaor yes mr cranitch sc understanding occasion risk pregnancy proceeding cardiac condition mr shaor yes 59 plaintiff understood termination available plaintiff undertaken previous termination australian capital territory reason believe procedure available 60 important note discussion termination arose heart condition generalised include abnormality contrasted opening case stated thrust case plaintiff say abnormality whatsoever would termination selectively possible inevitably twin aborted twin 2 28 plaintiff say conversation disclosed meiri robertson doctor hospital told abnormality wish abort child child need 2 41 sure specialist qualification fact honour hear plaintiff conversation dr robertson abnormality would seek termination pregnancy understood reply agreed proposition 12 15 61 confirmed cross examination mr shaor mr higgs sc repeat sorry mr shaor talked termination dr robertson said agree abnormality suspect heart high risk cardiac failure heart failure better lose one baby lose mr higgs sc something said 25 july mr shaor said mr higgs sc beforehand mr shaor yes mr higgs sc understand evidence relation discussion termination pregnancy whole conversation occasion mr shaor yes mr higgs sc term anything possibility terminating twin selective termination anything sort termination evidence sum total said regard time mr shaor repeat question please mr higgs sc whole said respect anything termination mr shaor yes mr higgs sc matter specifically conversation allege ever possibility termination right mr shaor said 6 september said heart repeated question heart cleared sydney said concerned bent standing bent said mean said agreeing beginning planning send sydney hospital see somebody else say look made view clear mary said 62 return m nouri overall evidence relation important aspect relevant passage evidence follows mr cranitch sc say discussion dr robertson would baby abnormal m nouri yes yes said really indistinct asked baby indistinct said yes agreed would good decision normally would cardiac failure well mr cranitch sc prepared wait got opinion sydney going ahead abortion occasion m nouri yes mr cranitch sc discussion whether would terminate one twin twin dr robertson m nouri yes said possible one baby live mr higgs sc yes m nouri said although chromosome test normal still going transfer sydney see foetal cardiologist going today call today husband ask suspected heart abnormality approved sydney doctor termination option said yes agree abnormality could carry cardiac failure losing one baby better lose talk option come back mr higgs sc know given answer perceive might disagree suggest duty bound put tell u whether agree suggesting occasion neither occasion occasion discussion dr robertson prospect termination agree m nouri 63 evidence plaintiff never met description stated opening 64 2 august 2011 plaintiff saw dr murphy paediatric cardiologist sydney child hospital dr murphy carried ultrasound said problem twin b variable abnormality significance heart structurally sound reassured plaintiff told go beach 100 15 65 8 august 2011 plaintiff attended fmu saw dr robertson confirmed told dr murphy carried another ultrasound 66 plaintiff returned 22 august 2011 technician carried ultrasound told change well 67 next appointment m nouri suffered pain right side dr robertson informed 5 september 2011 carried ultrasound dr robertson said excess fluid around twin b polyhydramnios suggested amnioreduction removal excess fluid 68 appointment dr robertson also advised plaintiff content dr murphy decision beginning asked explain comment said planning another referral time cardiologist westmead hospital mr shaor told dr robertson medical insurance could access would help speed appointment 69 12 september 2011 plaintiff returned fmu dr robertson carried ultrasound m nouri given steroid injection 70 plaintiff returned fmu 15 september 2011 amnioreduction carried dr tan helped alleviate pain m nouri right side mr shaor asked appointment sydney arranged dr robertson said train 71 22 september 2011 plaintiff returned fmu saw dr robertson occasion professor ellwood fetal medicine specialist head unit observed ultrasound 72 plaintiff asked dr robertson sydney appointment informed arranged mention made twin b small stomach possible tof also mention referral geneticist specialist high risk meeting apparently taken place fmu 6 september 2011 73 5 october 2011 ultrasound performed enquiry made appointment sydney dr robertson repeated still organising 74 15 october 2011 m nouri suffering pain right side admitted maternity ward canberra hospital plaintiff provided staff history m nouri condition understood referring twin b condition source problem m nouri discharged following day suggested m nouri return fmu earlier date already scheduled 75 admission note dated 15 october 2011 make mention tof ex 1 page 149 76 dr robertson saw plaintiff 18 october 2011 another amnioreduction attempted painful m nouri procedure stopped 77 enquiry made doctor sydney dr robertson repeated appointment arranged plaintiff fed oft repeated explanation attended calvary john james hospital deakin enquired cardiologist available informed one 78 dr robertson asked cardiologist told plaintiff intention admit m nouri hospital transfer sydney ambulance never took place 79 26 october 2011 dr robertson said longer need trip sydney told plaintiff everything fine even made joke dairy product 80 occasion dr robertson asked plaintiff would like dr latif attend appointment knew also spoke arabic replied affirmative attended professor ellwood also attended apparently discus delivery plaintiff said would like caesarean delivery m nouri bad back previous experience postpartum bleeding excessive fluid surrounding twin b 81 professor ellwood disagreed said natural birth appropriate discussion agreed speak dr tam attended m nouri previous delivery plaintiff also asked dr latif discus caesarean procedure professor ellwood left meeting understood would likely caesarean birth would occur also expecting birth normal twin cardiac issue never told possible abnormality 82 mr shaor described relationship dr latif said prior birth twin doctor simply someone knew sudanese community since birth saba become close friend carried financial transaction together addition dr latif provided continues provide financial help plaintiff 83 cross examination emerged financial transaction involving dr latif mr shaor took mother germany mr shaor needed 20 000 worth euro made available dr latif money necessary case medical emergency arose journey germany mr shaor later repaid loan providing fund dr latif family sudan 84 plaintiff also receiving financial support family sudan two friend canberra latter providing fund informally secured equity plaintiff home 85 following meeting professor ellwood dr latif occurred 1 november 2011 ultrasound arranged next day appointment made delivery 3 november 2011 86 stage mr shaor said concern expressed health twin b 87 mr shaor present birth male baby delivered first delivery saba taken neonatal intensive care unit nicu mr shaor surprised occurred went nicu spoke dr latif told baby needed test return wife 88 baby taken theatre later day mr shaor met dr simpson dr angelica dr simpson told saba tof drew diagram explain condition asked mr shaor informed likely mr shaor replied informed dr simpson observed dr angelica consulted abnormality dr angelica shrugged shoulder dr simpson said need get involved counsel parent bout procedure side effect going tell common side effect leakage 121 6 121 16 89 dr simpson return theatre operating another patient 90 mr shaor later spoke dr latif office explained vacterl mr shaor using whiteboard assist 91 mr shaor told wife issue kept detail minimum avoid distressing said baby needed simple procedure 92 since birth saba undergone number surgical procedure usually sydney requires surgery future 93 mr shaor related one occasion contacted head nicu dr kecskes wanted talk mishap occurred ambulance arrangement conversation mr shaor complained experience canberra hospital doctor responded saba brought canberra hospital observed know anything saba condition saba delivered 125 19 125 20 94 mr shaor said worked since saba birth day taken care saba sibling effectively full time job commencing 5 00 preparation day begin little time left socialising although occur rare occasion 95 mr shaor said saba bathed various medical issue attended take walk order generate circulation limb hygiene especially important avoid infection walk unaided supervised might fall necessary feedbag carried feeding machine permanently connected day also necessary monitor oxygen saturation level take appropriate action low level alarm sound walk saba placed exercise bicycle short time 96 saba medical expense currently covered national disability insurance scheme ndis still shortfall 350 per month medication delivered percutaneous endoscopic gastrostomy peg 97 mr shaor said health problem recently needed engage carer sudanese community paid 45 per hour also said took antidepressant medication 98 mr shaor questioned assertion spent almost every day hospital following saba birth taken hospital note exhibit 3 suggest much lower level attendance rejected inference arising note saying looked note time time observed omission concerning attendance regard mindful warning given basten ja inmason v demasi 2009 nswca 227andcontainer terminal australia ltd v huseyin 2008 nswca 320 99 observe fmu note also display distinct lack detail accuracy 100 2012 m nouri became pregnant pregnancy terminated plaintiff wish another child 101 mr shaor said generally agreed recommendation made m moylan occupational therapist retained defendant added however believed m moylan selective approach preferring matter favoured defendant 102 cross examination mr shaor challenged activity day put visited saudi arabian cultural mission frequently previously suggested said could remember precise date accept quite often especially since august 2017 assist sudanese embassy set canberra wrote letter ordered equipment behalf appropriate software computer home task 103 mr shaor shown video footage coming going saudi arabian cultural mission exhibit 6 accepted footage reflected visit embassy could specific time date also said time time driver sudanese embassy would take home footage particular significance perhaps highlight mr shaor attending mission often recalled earlier evidence 104 significance cross examination revealed mr shaor owed cultural mission 130 000 debt accumulated august 2011 money deposited mr shaor hsbc account equivalent wage would earned working insisted however working raising distinct issue credit soundness past economic loss claim 105 another area economic loss came scrutiny concerned claim made since abandoned commission property sale claim 30 000 mr shaor said similar amount sum earned saba born put tax return substantiate claim 106 indication mr shaor working part time basis indication include content letter particular plaintiff solicitor solicitor defendant dated 13 september 2013 hospital note recorded mr shaor said staff member could attend hospital working mr shaor agreed might said said would relation assisting sudanese embassy regard paid work mr shaor said paid work sudanese embassy 107 regarding 130 000 owed mission mr shaor said year ago assisted cultural attaché dr ali albishir internal accounting issue concerning large sum money 2011 plaintiff wished resign employment mission attaché persuaded mr shaor resign take unpaid leave instead agreed returned 2011 attaché suggested arrangement secured equity mr shaor home whereby would receive payment equivalent wage received series payment monthly basis said equivalent salary previously received also including salary increase 108 suggested mr shaor arrangement might viewed unusual responded attaché sympathetic man arrangement consistent cultural background 109 arrangement said confirmed letter letter longer available new cultural attaché took 2013 stopped arrangement payment ceased 110 mr shaor cross examined saba capacity walk said could walk alone needed supervised short video event 6 september 2017 suggested saba reasonable capacity walk although video short draw firm conclusion exhibit 7 medical report united setting degree disability suffers 111 mr shaor said saba recently shown narrowing oesophagus amounted 10 step back encouraged eat would quite often vomit took food orally applied drinking water said food suitable like tomato cucumber mashed potato squashed fry 112 mr shaor think 24 hour peg feeding system could discarded used period time feeding would need increased time 113 mr shaor asked information given hospital saba injury antenatally taken statement wife prepared medical opinion dr cole document suggests told possibility blocked oesophagus day delivery denied said statement amended note firstly proposition consistent mr shaor version secondly defendant case assisted disclosure one day delivery 114 addition mr shaor said amended statement sent solicitor original statement contained error number call made amended statement produced however mr shaor came examined said found statement defendant quite properly objected tender marked identification defendant lawyer could read necessary mr shaor could cross examined content later came evidence exhibit j mr shaor later cross examined document said prepared cooperation wife signature appeared end solicitor requested sign document 115 mr shaor asked passage relating consultation dr murphy suggested question asked doctor went beyond enquiry saba heart extended condition generally said concerned baby heart regard dr murphy cardiologist parent sent relation possible heart condition thought answer reflected logical response accept evidence regard 116 mr shaor emphasised termination discussed dr robertson 25 november 2011 one separate occasion also said discussion polyhydramnios restricted connected twin b cardiac anomaly mechanic fluid might accumulated never explained 117 asked would done abnormality disclosed mr shaor said wife would chosen termination matter late gestation period would travelled overseas necessary would sought medical advice whether safe m nouri travel advice safe would rejected opinion unless doctor could point real probability risk wife health said wife history postpartum bleeding would affected decision travel 118 mr shaor said fund make trip would included remaining usa twin born well enough return may involved staying usa three month mr shaor said would applied visa america esta online application facility mr shaor said australian citizen visa would promptly granted family needed remain three month extent visit allowed visa would sought extension medical ground prolonged stay necessary family could sought support relative friend lived dallas 119 mr shaor emphasised termination would chosen abnormality whether simple simple 322 10 322 11 120 mr shaor said family present intention move sydney therefore closer anticipated medical intervention also hoped saba would able attend school sydney saba attended early learning centre canberra grammar school early 2017 arrangement proved unpractical ended five week understood two main problem firstly school required parent premise saba class secondly difficulty arose feeding arrangement necessary cease feeding class attendance compensate extra feeding rest day night led vomiting 121 mr shaor asked dealing fmu agreed first consultation 15 july 2011 wife seen dr tan technician called debbie m debra paoletti tegan agreed dr tan recommended ultrasound take place said baby heart baby small said size baby apparent birth 122 mr shaor agreed amniocentesis test suggested performed immediately said dr tan referred need cardiac scan would arrange appointment sydney cardiologist mr shaor adamant dr tan dr robertson later time undertook arrange appointment 123 mr shaor agreed dr tan mentioned possibility cardiac issue mention hole heart said dr tan referred single umbilical artery reason amniocentesis test dr tan also mentioned may chromosomal abnormality include syndrome example 124 mr shaor said dr tan mention short femur small abdominal circumference note ultrasound report exhibit 1 consistently suggest presence short femur small abdominal circumference 125 mr shaor taken consultation fmu suffice say disagreed lot suggestion put event consultation disagreement extended following e whether consultation dr tan dr robertson f whether sonographer doctor carried ultrasound g whether saved shot exhibit 10 ever shown plaintiff h advice given doctor plaintiff 126 mr shaor adamant following relation consultation dr robertson specifically spoke termination consultation 25 july 2011 agreed plaintiff attitude termination b dr robertson person spoken termination person charge c dr robertson would sometimes sing conducting ultrasound discus song writer technician plaintiff never made aware venous drainage problem never suggested right atrium larger left atrium ductus venosus shunt regulates amount blood travel fetal heart e plaintiff never shown shot exhibit 10 f dr robertson always carried ultrasound present g occasion prior delivery dr carlisle consulted consultation h explanation polyhydramnios caused twin b heart condition plaintiff never told continued monitoring discover cause polyhydramnios need continual monitoring pregnancy twin involved risk heart failure twin b part j plaintiff understood twin b heart variable anomaly structurally good order anything serious termination would chosen k m nouri request early delivery 127 portion cross examination concerned mr shaor knowledge risk lung damage baby born prematurely defendant case however saba difficulty arose premature birth also part plaintiff case likelihood disability evident pregnancy communicated plaintiff 128 mr shaor cross examined consult google twin b condition way researched mother condition said think need far plaintiff concerned twin b cleared dr murphy regarded senior specialist dr robertson said disagreed dr murphy arranging another appointment lead change plaintiff position 129 mr shaor asked adherence islamic faith chapter 5 verse 32 koran quoted also taken interpretation passage suggest observant muslim would allowed termination take place late pregnancy mr shaor said followed koran necessarily interpretation view termination allowed evidenced wife two termination 130 mr shaor also asked love wife whether would flown usa threat wellbeing confirmed love wife emphasised would made decision fly factually convinced risk heath real evidence point little different wife said would made journey even advised face real risk health twin 131 wife chosen termination mr shaor said would respected decision 132 mr shaor pointed wife parent owned private hospital sudan said could travelled sudan termination however also said standard medical treatment sudan acceptable standard father currently receiving medical treatment egypt 133 m lita giersch gave evidence retired real estate agent come know mr shaor number year gathered agency located near coffee shop frequented men including diplomat visited nearby mosque 134 m giersch said twin born mr shaor financial trouble extent could lost home shown corroborating letter bank began provide series cheque assist addition 2012 loaned mazda 6 motor vehicle vehicle seen exhibit 6 135 m giersch estimated including value mazda loaned mr shaor 200 000 also paid insurance vehicle registration retired 136 relevance evidence form basis loaned money part damage claimed rather explain plaintiff financial state including entry bank statement mr shaor financial position subject detailed scrutiny cross examination 137 m nouri gave evidence although interpreter present almost evidence english general statement evidence consistent husband although two important point differed return 138 m nouri born sudan 1978 father military family moved around posted different location m nouri completed high school commenced university study focused histopathology 1997 degree full time took five year 139 m nouri diagnosed depression took appropriate medication felt better towards end 2000 2004 married mr shaor came australia beginning 2005 found job saudi arabian cultural mission adviser scholarship student paid 5 000 per month 140 m nouri recounted cousin disabled due fluid brain cousin required 24 hour care died 14 15 year age also aware child sister law needed considerable care seen effect disabled child respective family 141 m nouri thyroid condition result irregular menstrual period first fell pregnant 2006 gave birth son december year towards end pregnancy pregnancy suffered significant lower back pain result terminated pregnancy 2008 8 week gestation 142 m nouri fell pregnant 2009 order manage back pain saw dr tam calvary private hospital daughter born march 2010 143 birth two child m nouri returned work entitled took two month maternity leave 144 family went germany m nouri mother law 2011 intent travel sudan reside may 2011 m nouri thought pregnant decision made return australia birth expected baby clear intent family baby likely disabled m nouri would undergo termination pregnancy 145 returning australia plaintiff general practitioner consulted referred m nouri ncdi ultrasound scan took place 8 july 2011 dr lomas ncdi said poor visualisation twin b heart single umbilical artery referred fmu urgently 146 fmu contact m nouri expected husband chased matter dr latif saw dr tan 15 july 2011 dr tan asked plaintiff already told dr lomas m nouri described poor visualisation single umbilical artery dr tan recommended chromosome test said test could done day posed risk 1 normal miscarriage occurring test carried 147 25 july 2011 m nouri introduced dr robertson dr tan dr robertson said first result amniocentesis test negative expected follow test result dr robertson told m nouri experience histopathology 148 dr robertson said would arrange appointment paediatric cardiologist sydney question abortion discussed dr robertson agreed m nouri husband termination appropriate option twin b normal dr robertson made observation better lose one twin 149 dr murphy seen sydney 2 august 2011 checked twin said canberra hospital often made mistake identifying twin might need examination dr murphy said twin b normal heart although connection slightly different said artery vein started ended 150 asked wellbeing twin generally dr murphy replied looking twin b heart matter discussed fmu 151 fortnightly ultrasound appointment continued frequency due twin m nouri said stage told difference size twin one smaller abdominal circumference short femur told continuing appointment necessary twin b heart condition 152 said generally sonographer ultrasound although dr robertson ultrasound information provided change m nouri noticed dr robertson would discus song general topic sonographer 153 towards end august 2011 m nouri felt short breath experienced pain right side reported dr robertson 5 september 2011 ultrasound dr robertson told excess fluid placenta due twin b heart condition said shocked news addition said dr robertson told content dr murphy opinion planning send m nouri different cardiologist westmead hospital husband informed dr robertson private insurance available attempt speed process 154 cross examination m nouri said dr lomas told twin b heart slightly larger normal referred something wrong heart reason referred fmu 155 m nouri described general term daily routine described husband asked number question exhibit 7 video taken husband birthday earlier year said home visited home good friend husband one significant difference refer husband said friend close friend wife later said husband house family recently moved say evidence disturbed seemed plainly addressing inconsistency aware 156 m nouri denied prior birth twin never told saba oesophagus blocked narrow told birth 157 also denied dr tan 15 july 2011 mentioned possibility avsd hole heart stage evidence m nouri became tearful stated said told u lying 456 14 never said cardiac issue might related chromosomal abnormality abnormality related single umbilical artery agreed dr tan said heart could seen well stage pregnancy definitely mention short femur small abdominal circumference 158 m nouri described meeting dr robertson 25 july 2011 started discussion result amniocentesis test far heart concerned dr robertson said would arrange appointment cardiologist sydney discussion abortion occurred dr robertson said discussion would take place cardiologist appointment 159 like husband m nouri denied ever shown still image ultrasound either 25 july 2011 appointment ultrasound conducted agreed m paoletti present said dr robertson would sometimes take conduct ultrasound adamant dr robertson generally chatted m paoletti ultrasound 160 m nouri asked trusted dr robertson said challenged trust existed dr robertson giving proper explanation said far husband concerned matter concern twin b heart reassured dr murphy also dr robertson abnormality besides insignificant variation said sought explanation medical term used doctor husband would understood preferred ask question simple term 161 cross examination m nouri became upset occasion said dr robertson played game life kid life said angry whole system one point adjourned enable m nouri recover distress obviously feeling doubt distress genuine 162 detail conversation alleged defendant occurred doctor put m nouri agreed suggestion others summary adhered evidence chief denied detail ever given husband certainly explanation condition relating twin b heart discussion fetus heart limited husband impression heart condition anomaly abnormality likely result disabled child 163 concentration matter concerning heart give validity plaintiff claim sense complaint possibility heart condition disclosed rather potential risk like tof mentioned m nouri denied ever mention small stomach denied ever shown still picture apparently small abdomen certain one told small abdomen might relate condition called tof 164 m nouri cross examined attitude flying america notwithstanding might risk life said even risk would made trip influenced experience husband family answer cross examination consistent gave chief 418 36 418 39 165 m nouri shown video visiting supermarket saba later visiting family friend 6 september 2017 exhibit 7 confirmed manner saba seen walking video way normally walk 166 relation saba seatbelt m nouri said cold saba wet due urine leakage would generally place vehicle close door seatbelt inside although questioning sustained point see significant issue would accept drove without daughter seatbelt 167 suggestion m nouri time saba seatbelt dispelled close examination footage although seatbelt done passenger door closed nothing suggest could done inside vehicle vehicle depart soon prevent conclusion 168 m nouri said practising muslim described following liberal interpretation islamic faith said adhered turkish approach according termination pregnancy available 25 week gestation thereafter justified 169 m nouri asked completion form preparation admission calvary hospital birth daughter 2010 question depression answered negative said depressed time said answer respect smoking incorrect asked smoked refused answer stating cultural reason refusal cultural reason explained one level might said refusal answer relevant credit hand note end long cross examination often become upset visibly distressed may simply one question many think latter case 170 seen significant concern evidence given mr shaor especially relating economic loss financial matter nevertheless thought evidence interaction fmu generally sound similar reservation respect m nouri evidence obviously large financial incentive evidence tailored achieve successful result however form impression influenced evidence impressed parent overwhelmed tragedy affected daughter rest family 171 accept parent evidence may assumed subconsciously exaggerated flavour example dr robertson may occasion hummed tune working accept constantly singing discussing social matter staff also accept dr robertson never showed explained ultrasound image plaintiff exaggeration doubt influenced tragedy befallen family need attribute blame particular dr robertson 172 general observation accept oral evidence parent concerning information supplied defendant present purpose important aspect acceptance relates whether parent told saba born might tof 173 submitted defendant conclusion contradicted plaintiff statement exhibit 40 page 3 stated got phone call delivery take place 3 11 2011 asked come final u 02 11 2011 u saw dr ken told u going caesarean going went room u final u told u baby no2 got small abdomen said could due two reason one could oesophagus blocked somewhere narrow 174 defendant reliance passage show plaintiff told tof birth misplaced reason conversation occurred day delivery giving parent opportunity act upon b contradicted later statement page 4 explicitly stated surgeon gave detailed description tof first time condition mentioned 175 reason rejecting dr robertson evidence key issue provision information tof set 176 following evidence given m nouri defendant called member fmu give oral evidence first witness m paoletti curriculum vitae cv exhibit 13 demonstrates well qualified sonographer 177 said average would see 10 new patient five existing patient day therefore seen thousand patient since 2011 178 m paoletti said nervous witness box evident manner gave testimony nevertheless think best honest although time felt concerned give answer might adversely affect credibility fmu colleague 179 m paoletti surprisingly little memory m nouri however could clearly recall two matter related first time met m nouri 25 july 2011 said briefed conduct ultrasound view identifying whether twin 2 avsd hole heart examination noticed umbilical vein drained directly right atrium first time seen abnormality reason remembered 180 second specific memory concerned conversation said occurred dr robertson m nouri dr robertson explaining image umbilical vein dr robertson asked mr nouri understood explanation replied understand pathologist country m paoletti surprised immediately felt ashamed made adverse assumption m nouri level education 181 m paoletti said sure dr robertson shown m nouri image 145 exhibit 10 cross examination think became apparent chosen picture one fitted bill depicting heart coloured 182 m paoletti said ultrasound conducted dr robertson spoke m nouri consulting room accepted could recall conversation doctor patient 183 consultation 25 july 2011 consultation m paoletti specific memory taken ultrasound report exhibit 1 indicating presence specific memory occasion said report page 81 exhibit 1 computer generated diagnosis entered either consultation soon afterwards 184 m paoletti said chart form indicated bound normality 5thto 95thpercentile agreed result outside bound normality would brought attention doctor observation form concern investigation twin b heart make little comment although none abnormality abdominal circumference femur length m paoletti agreed small abdominal circumference red marker noted monitored important look change lack change appropriate 185 m paoletti agreed twin natural comparison twin also agreed circumstance discordant result could indicative abnormality one twin 186 m paoletti said consultation would normally much discussion patient might minor chatting technician doctor would take long 187 dr robertson next witness cv exhibit 14 conducted initial training south africa worked time high risk ultrasound practice cape town tygerberg hospital familiar request termination said situation south africa similar australia namely termination beyond 20 week gestation would need put ethic committee said would act patient advocate necessary produce evidence justify termination 188 2003 dr robertson began working fmu canberra hospital became director 2007 course work developed relationship two sydney hospital royal woman hospital royal prince alfred hospital main contact hospital dr antonia shand dr jon hyett respectively 189 dr robertson explained mother came fmu one two reason either potential problem fetus maternal concern 190 dr robertson recall introduced parent 25 july 2011 recall ultrasound examination also recalled reading dr tan note result fluorescent situ hybridisation fish test prior examination sure read ncdi report said intention day clarify condition fetal heart 191 dr robertson thought came consultation room halfway m nouri examination asked sonographer m paoletti demonstrate configuration blood vessel stomach within fetus abdomen took scanning collected image dr robertson said always started image abdomen gave appropriate clue condition heart 192 dr robertson said formed different view dr tan think hole heart referred page 129 135 141 exhibit 10 explain view exhibit 15 16 17 18 19 20 show marking made dr robertson evidence 193 dr robertson said spoke parent informed unusual path umbilical vein namely bypassed ductus venosus drained directly right atrium heart told umbilical vein regulated ductus venosus meant increased blood flow heart told parent abnormality would require surgical correction dr robertson said informed parent ductus venosus cease function birth 194 ductus venosus shunt regulates blood flow heart bypassed umbilical vein control blood flow result twin b larger right atrium 195 dr robertson also recalled telling parent main risk fetus go heart failure required continuing management 196 dr robertson said seen condition patient saw fmu 2005 particular fetus twin pregnancy required increased surveillance baby delivered 37 week development polyhydramnios 197 dr robertson said told parent appointment would made consult specialist sydney done dr shand royal woman hospital appointment later made dr murphy 198 dr robertson said end explanation asked m nouri understood told m nouri replied yes understands pathologist came 622 39 622 40 corroborated referral letter appears page 91 exhibit 1 199 although dr robertson could remember conversation parent said normal practice say word effect important also remind ultrasound definitive ultrasound alone cannot detect problem baby sometimes thing become clearer time go sometimes certain problem diagnosed baby born 627 13 627 17 200 dr robertson adamant parent mentioned subject late termination consultation 25 july 2011 201 gave general evidence termination said carried fmu conducted professor ellwood dr robertson noted important distinction made pregnancy twin singleton former case important consideration welfare healthy twin statistically second trimester 20 chance complication includes 14 chance spontaneous birth premature stage 202 dr robertson said late termination termination 20 week gestation required approval ethic committee necessary prepare case put committee involved parent consulting person social worker dr robertson said asked termination would set important consideration included procedure requirement procedure possible complication involved procedure 203 dr robertson said case twin preferable procedure third trimester week 29 40 increase chance survival healthy twin timing would however take account wish parent 204 dr robertson said chance successful application termination greater earlier pregnancy asked whether inconsistent earlier evidence twin pregnancy termination better carried third trimester said understood point concede inconsistency 205 termination respect twin pregnancy carried insertion needle mother abdomen fetal heart singleton procedure done way forced induction pregnancy late term injection would also given dr robertson referred injection method feticide 206 inconsistency arose evidence dr robertson m paoletti dr robertson said observed identified unusual path umbilical vein m paoletti said made discovery 566 5 566 11 m paoletti said one reason remembered consultation 207 whether dr robertson m paoletti identified condition relevant importance point indicates possible unreliability memory two respective witness witness giving evidence event occurred least six year ago examination one amongst thousand occurred since paucity unreliability fmu note assist 208 even important point arises diagnosis made dr robertson looking ultrasound image 25 july 2011 already noted said condition rare second time seen prompted refer matter dr shand dr murphy sydney 209 dr murphy report exhibit 1 page 133 134 fundamental dr robertson diagnosis right atrium twin b heart larger left different finding made dr murphy even mention unusual path umbilical vein identified dr robertson asked dr robertson agreed dr murphy said also asked concerned dr murphy picked rare presentation said specialist nevertheless continued believe position correct 210 recalled plaintiff alleged dr robertson told 5 september 2011 agreed dr murphy sending another cardiac specialist westmead put plaintiff dr robertson never stated disagreed dr murphy apparent however dr robertson disagree dr murphy making plaintiff account conversation credible 211 also found evidence dr robertson think unusual disagreement quite unbelievable identified rare condition result referred matter dr murphy via dr shand odd indeed dr murphy came different diagnosis also seemed identified rare condition would contacted dr robertson discus matter entirely consistent however dr robertson might wanted another opinion 212 also significant professor ellwood gave evidence identified inconsistency dr murphy view adopted fmu agreed proposition hindsight dr murphy got wrong witness box professor ellwood looked image exhibit 10 noted depicted enlarged right atrium referral dr murphy consistently afterwards 213 professor ellwood view report found exhibit 1 page 89 sent dr murphy would expected dr murphy recorded disagreement report 214 notwithstanding evidence thought dr murphy wrong dr robertson later stated assumed dr murphy identified abnormality think reference made following set question answer honour yes right letter dr murphy agree told u morning way umbilical vein went basically unusual path dr robertson agree aspect said point difference basis disproportion 644 36 644 39 mr higgs sc time remember time got report back dr murphy anything view inconsistent diagnosis abnormal venous connection umbilical vein going right atrium dr robertson rightly wrongly assumed absence comment finding assumed dr murphy agreed 680 14 680 18 215 also important note evidence chief dr robertson said relevant contact westmead hospital 596 15 596 16 however later said need cardiac surgery would referred matter westmead hospital addition pointed cross examination letter dr murphy copied dr cooper cardiac surgeon westmead hospital confronted evidence dr robertson explanation dr cooper included dr murphy shared practice dr cooper might thought dr cooper might one day need see m nouri found explanation quite unconvincing 216 returning chronology next appointment dr robertson parent 8 august 2011 record exhibit 1 page 93 dr robertson recalled telling parent dr murphy finding informing second chromosome test normal 217 note dr robertson agreed upon receipt dr murphy report three opinion twin b heart condition opinion stemming abnormal path taken umbilical vein missing ductus venosus producing enlarged right atrium dr tan opinion hole heart dr murphy opinion heart normal atrium size connection followed abnormal route 218 evidence suggest dr robertson ever explained disagreement parent far note concerned dr robertson agreed important inform parent significant matter concerning pregnancy also important record discussion agreed record fmu note discussion 219 contrast note prepared dr tan 5 september 2011 exhibit 1 page 100 specifically record discussion parent note read einas complains sob progressively getting worse last 2 week sign polyhydramnios deepest pool measuring 13cm see next week repeat measurement deepest pool twin 1 possible aim amnioreduction wednesday next week steroid covered explained possibility preterm delivery amnioreduction happy come back next week discussion 220 dr robertson said main reason matter referred dr murphy see pregnancy could managed canberra needed done sydney facility sydney allowed cardiac surgery birth said told parent need continuing surveillance pregnancy m nouri could yet discharged care fmu 221 dr robertson agreed may seen parent 22 august 2011 recollection seeing 5 12 15 september 2011 222 doctor referred note high risk meeting 6 september 2011 exhibit 1 page 147 initially said could remember attended said probably later said definitely said number person unit area hospital would present geneticist sydney attended month meeting background case discussed particular regard increase amniotic fluid possibility tof raised 223 evidence dr robertson ever discussed meeting parent 224 22 september 2011 another ultrasound based examination dr robertson said intention conducting examination test thought reason increase amniotic fluid establish whether tof said took parent number saved image demonstrate issue referred image 321 322 exhibit 10 dr robertson pointed abdominal circumference twin 2 small image page 321 cross section taken abdomen liver page 322 cross section taken chest 225 dr robertson said end consultation thought two possible reason increase amniotic fluid first consistent opinion cause cardiac abnormality enlarged right atrium generally bigger heart exerting pressure oesophagus thereby restricting passage abdomen second tof involving either abnormal blocked connection food pipe stomach 226 dr robertson said favoured first possibility said explained possibility parent detailed term example gave detail apparently able recall image see compared two baby side side point screen seen twin 2 got seen past quite big right atrium overall heart look bigger given two finding namely smaller stomach quite large heart wondering two possible cause increase fluid baby one would heart exerts pressure food pipe therefore fluid cannot pas cause defect called tracheoesophageal fistula sometimes referred tof abnormal connection air pipe food pipe abnormal connection either completely absent narrow therefore fluid cannot pas usual way baby stomach 663 12 663 23 227 found evidence difficult accept following reason seems unlikely could recalled detail related notwithstanding passage time lack memory many element dealing parent dr robertson said saw 20 patient day m paoletti referred seeing approximately 15 patient day whichever correct many thousand patient seen six year since dr robertson spoke plaintiff b 663 35 663 36 dr robertson state cannot recall specific response parent explanation find surprising regard precision detail recollection said parent educated people quite clearly interest pregnancy doubt faced explanation type asserted dr robertson parent would number question doctor c two version fmu note 22september 2011 exhibit 1 page 111 113 putting aside unsatisfactory explanation behind two version neither corroborates doctor evidence fact nothing note suggests even discussion parent seen issue accuracy note generally 228 also worth noting dr robertson evidence accepted although house discussion raising possibility tof occurred 6 september 2011 22 september 2011 discussed parent professor ellwood gave evidence said appropriate parent told possibility tof 229 summary vital point accept dr robertson evidence told plaintiff possible tof 22 september 2011 fact time prior birth saba 230 another important element arises dr robertson preferred theory encroachment enlarged right atrium oesophagus dr murphy gave oral evidence plainly said occurred saba think worth quoting evidence mr cranitch sc yes understand evidence although contained necessarily within report opined right atrium invariably enlarges foetus taking blood rather pumping blood lung correct dr murphy yes mr cranitch sc normal development dr murphy well normally see little later gestation would normally beyond 23 week becomes prominent mr cranitch sc course dr murphy would like 26 28 week gestation onwards would become prominent mr cranitch sc thank dr murphy easier detect mr cranitch sc right even though may become prominent fact matter happens every baby dr murphy would advanced gestation correct mr cranitch sc thank unlikely normal variation cause problem adjacent structure oesophagus something happens routinely dr murphy understand question mr cranitch sc unlikely would interfere operation oesophagus compress something like dr murphy normal mr cranitch sc normal development dr murphy correct mr cranitch sc indeed would rare enlarged right atrium would compress oesophagus right dr murphy depends actual heart certain cardiac anomaly lung artery pulmonary artery compressed structure could theoretically compressed would absolutely enormous right atrium extremely severe ebstein anomaly get called wall wall heart word heart fill almost entire chest cavity stretched would extremely rare 999 44 1000 34 231 lest doubt strength dr murphy view said examination mr higgs sc said generally later pregnancy would expect large right atrium press oesophagus generally circumstance occur opinion dr murphy well baby right atrium normal size normal baby right atrium right ventricle little bit larger little bit larger left pregnancy progress typically beyond 26 28 week gestation however extremely unlikely extremely rare would ever expect cause problem whatsoever oesophagus certain rare heart condition example blood vessel coming heart follow general path example either lung artery instead splitting call bifurcating one lung food pip windpipe bifurcation sometimes one branch lung artery could wrap around food pipe windpipe cause problem swallowing breathing similarly aorta foetus eight week gestation heart forming first eight nine week pregnancy actually start two aorta left aortic arch right aortic arch right aortic arch people dissolve geos away left left side aortic arch extremely rare sometimes example baby could born aortic arch effective wrap around windpipe food pipe rare heart condition baby neither 1002 21 1002 41 232 another interesting point dr murphy evidence arises handwritten note copy ultrasound report 15 july 2011 exhibit 36 said mr higgs sc reference usual practice benefit note discussion dr robertson regarding agreement view regard right dr murphy well yes mean note say reviewed study agreed avsd tga told junior sonographer looked know actually typed original report 993 19 993 24 233 junior sonographer m tegan sullivan give evidence evidence seniority however air discussion doctor suggests dr robertson may attributing wrong diagnosis sonographer response dr murphy rejection finding finding incidentally also supported dr tan 234 dr robertson gave explanation record keeping process said fetal wellbeing report generated computer program viewpoint 5 addition could made comment bottom page following report would printed placed patient file file would sent record department pregnancy completed document printed could obtained record department sought viewpoint 5 would produced program latest format might include case different heading 235 relation anomaly report page 111 113 exhibit 1 dr robertson said report probably changed completed consultation given matter thought professor ellwood evidence document little different thought chronologically page 113 would prepared page 111 nevertheless explanation difference diagnosis two page experienced difficulty explaining structural difference page particularly inclusion barcode 236 dr robertson taken task evidence cross examination put note included possibility tof made october 2011 forwarded dr shand sydney rejected suggestion cannot say amendment made following point seem cast doubt doctor evidence note refer conversation dr robertson dr carlisle dr robertson oral evidence said dr carlisle spoke parent contrast interrogatory 18 b first version exhibit 1 page 111 draft signed 237 cross examination put dr robertson effectively taken role parent determining whether termination sought done discussing implication diagnosis tof dr robertson said vast majority people tof lead relatively normal life 685 22 685 23 answer significant apparent dr robertson accepted diagnosis tof could major implication attempting somewhat unsuccessfully mitigate failure properly explain ramification tof parent already noted although dr robertson may spoken dr carlisle interrogatory would suggest dr carlisle speak parent 238 dr robertson closely cross examined high risk meeting took place 6 september 2011 evidence chief thought confusing particularly whether attended evidence cross examination even confusing seemed fluctuate present present ultimately think could say probably attended dr tan professor ellwood could also present 239 apparent whoever meeting raised possibility tof discussed parent 22 september 2011 assuming discussed difference 6 september 22 september term gestation period 28 week 2 day compared 30 week 4 day difference might significant decision selective termination however must recognised decision perform termination may delayed 32 week gestation order strengthen prospect twin termination generated pre term delivery twin importantly plaintiff case information provided 22 september 2011 240 dr robertson asked twin b abdominal circumference measurement pointed measure size stomach gathered important consideration respect abdominal circumference femur length dr robertson said notwithstanding measurement sometimes low percentile significant doubt actual date commencement gestation twin different size b girl normally smaller boy 241 dr robertson said important factor continuing growth twin b seemed occurring normal fashion reason doubt dr robertson explanation seem odd continuing record stomach size yet continuing tracking abdominal circumference femur length also note dr robertson email dr shand 17 october 2011 referred history small stomach 242 professor ellwood dean medicine griffith university school medicine established fmu canberra hospital 1995 early 1996 brought great deal experience role see exhibit 23 2011 fmu made three doctor two sonographers midwife 243 although strict hierarchy unit although dr robertson director gained impression practice major decision would made professor ellwood certainly carried termination consulted major issue 244 fmu saw approximately 100 patient week professor ellwood rostered work unit two day week would often present day see particular patient said fmu busy 245 professor ellwood specific recollection meeting plaintiff two occasion thought may met occasion well also recalled discussing dr robertson finding including abnormal path taken umbilical vein said seen similar condition canberra hospital occasion referred dr robertson 246 professor ellwood originally introduced high risk meeting gave background took place every tuesday subject main holiday period specific agenda 247 meeting participant would raise matter concern generally matter concern came one three source arose case fmu patient baby nursery generally discussion occurred close delivery neonatologist might input 248 case m nouri discussion would generated finding polyhydramnios could led early delivery case nursery bed would necessary professor ellwood could remember meeting 6 september 2011 could recall whether attended attended meeting note written m warwick senior genetic counsellor 249 professor ellwood said excess amniotic fluid normally caused one following swallowing problem associated brain defect b mechanical problem causing obstruction oesophagus tof example mechanical problem c increased production urine unidentifiable cause 250 case professor ellwood said evidence cause c tof considered unlikely although twin b small stomach seem contain fluid time time left unidentifiable cause turn raised possibility enlarged right atrium factor professor ellwood said abnormality identified usual practice look abnormality cause abnormality 251 professor ellwood said strongest recollection meeting 26 october 2011 may however mistaken previous meeting dr latif present said purpose meeting discus m nouri birth plan thought met plaintiff scanning room discussion birth would occur recalled plaintiff sought caesarean section postpartum bleeding suffered birth m nouri daughter 252 professor ellwood also thought m nouri expressed concern natural birth affecting twin b however confident recollection regard 253 timing meeting influenced expectation due excess amniotic fluid birth likely occur following week generally thought would better wait 37 week gestation allow maturing baby birth 36thweek acceptable compromise although note indicate professor ellwood consult dr tam came conclusion caesarean section appropriate 254 professor ellwood said performed number selective termination thought might done one two year said termination 20 week required approval ethic committee said possibility termination never raised could see cause justify referral committee said 24 week gestation three factor important parent requesting termination b would medical practitioner agree perform c would approved ethic committee 255 professor ellwood said would agreed perform termination case cross examination put professor ellwood late stage elective termination occur 10 case tof identified professor ellwood said never performed termination thought baby might born tof applied singleton twin pregnancy 256 note professor ellwood comment restricted case tof diagnosis 691 28 twin b different possibility tof unusual umbilical vein path small stomach overall smaller size twin b 257 professor ellwood said 28 week gestation ethic committee refused selective termination request m nouri asked opinion travelling overseas would firmly proposition potential risk m nouri unborn twin m nouri would face risk postpartum bleeding emergency labour presence polyhydramnios made pre term birth real risk deep vein thrombosis another risk mother would face travelling 258 professor ellwood asked vacterl association aware diagnosis made understand least one doctor suggested presence said vacterl could diagnosed birth element observable birth 259 nevertheless view twin b number abnormality anomaly might suggested vacterl would raised discussion possibility disability going beyond cardiac anomaly tof suspected even low level possibility possibility complication would evident stated exhibit q defendant information sheet problem affect baby tof may associated number problem involving heart spine kidney anus limb organ bone checked using ultrasound x ray abnormality found discussed 260 overall impression professor ellwood evidence dr robertson formed conclusion right atrium larger left agree dr murphy already noted dr robertson disagreement consistent allegation made parent seeking another opinion based professor ellwood evidence opinion could obtained canberra dr cooper visited canberra time time specifically raised option dr murphy 261 dr tan gave oral evidence 2011 working fmu qualified doctor training area obstetrics gynaecology fetal medicine 262 dr tan first saw plaintiff 15 july 2011 read report ncdi meeting said spoke plaintiff ultrasound told suspected malformation twin b plaintiff informed one possible cause could cardiac anomaly also told approximately 30 chance syndrome 263 dr tan gave plaintiff option amniocentesis identify chromosomal abnormality carried consultation discussed matter dr robertson prompting letter sent royal hospital woman page 91 exhibit 1 264 dr tan next met plaintiff 5 september 2011 m nouri complaining shortness breath ultrasound conducted excessive amount fluid found around twin 2 dr tan unsure case baby good interval growth discussed matter professor ellwood spoke parent amnioreduction told risk pre term delivery 265 although dr tan attended 90 high risk meeting could recall attended meeting 6 september 2011 266 record reflect dr tan saw parent 12 september 2011 recollection occasion 15 september 2011 carried amnioreduction note procedure page 105 exhibit 1 note contains fundamental error refers amnioreduction procedure twin 1 involving use forceps amnioreduction performed twin 1 use forceps nonsensical dr tan said entire entry twin 1 mistake 267 also asked dr tan obstetric history recorded note firstly found difficult explain history included note form later came existence regard number explanation different style note none convincing secondly referred entry gravida para gravida number pregnancy patient para number birth 20 week gestation dr tan agreed entry respect m nouri wrong 2011 m nouri three pregnancy two birth 268 asked dr tan explanation error note regard state note important case quite reasonably staff fmu limited recollection lot detail concerning consultation plaintiff therefore either relied upon prompted note circumstance note important source evidence especially prepared contemporaneously 269 infox v percy 2003 hca 22 214 clr 118the high court said 39 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 270 inthe nominal defendant v cordin 2017 nswca 6 cordin majority new south wale court appeal criticised trial judge preferring lay evidence contemporaneous note respect prefer decision dissenting judge mcfarlane ja important distinction withcordinis issue reliability contemporaneous record present case pointed obvious major error note difficult see note contradicted apparently reliable evidence treated reliable evidence 271 3 november 2011 dr tan performed caesarean procedure twin born prior operation reviewed note notified neonatal team birth occurring 36thweek gestation recalled dr latif also attended 272 cross examination dr tan said work primarily private practice managing director canberra fetal assessment centre private institution conducting similar work fmu dr robertson also work canberra fetal assessment centre 273 dr tan agreed recollection founded usual practice 274 dr tan asked view following consultation 15 july 2011 disagreed suggestion come conclusion major cardiac anomaly however taken note 15 july 2011 exhibit 1 page 82 agreed fact reached conclusion major cardiac anomaly twin 2 another possibility regard state note generally diagnosis note 15 july 2011 yet another mistake 275 dr tan asked investigation cardiac anomaly short femur small abdominal circumference identified said junior doctor time would referred matter senior staff member agreed based experience present time matter required investigation 276 said confronted constellation anomaly would refer patient tertiary hospital 277 m katheryn columbine coordinator early learning centre elc canberra girl grammar school first met saba 2016 discussion held enrolment elc trial period two day parent required nearby 278 saba enrolled attend 2017 beyond 9 june 2017 m columbine said saba generally dropped mother 9 30 picked 3 00 pm 279 m columbine described activity witnessed saba performing included playing sandpit painting drawing one occasion climbing frame seen saba walking junior school distance 300 metre holding teacher hand 280 m columbine said seen saba eat quarter third sandwich seen drinking recently met mr shaor saba continuing attendance elc mr shaor told saba needed treatment sydney might dictate could return remember discussion home schooling regard thought discussion possibility home schooling another context 281 apparent purpose calling m columbine defendant establish saba condition bad reflected medical report certainly consistent assumption given dr scheinberg m moylan 282 purpose came somewhat undone cross examination m columbine agreed saba severely disabled prospect progress school limited would need special assistance stay school capacity walk compromised need nappy urine bag change language limited balance compromised playing skill parallel rather interactive needed constant watching 283 m harrison saba teacher 2017 experienced teacher qualification respect teaching disabled child cv exhibit 26 m harrison gave evidence saba attended 62 152 school day course term 1 2 284 doubt based m harrison evidence saba severely disabled child despite saba smile light room eager learn happy school persistent keep trying 285 unfortunately saba always succeed gain made always retained although m harrison overall impression progress made limited saba need many 286 m harrison described constant assistance saba need even walk around classroom cannot negotiate obstacle happens encounter walk 50 metre longer hand always held go stair one hand railing held teacher 287 saba requires nappy changed frequently throughout day exercise involves teacher closing toilet area person carefully changing nappy concern saba also concern rest class saba carry methicillin resistant staphylococcus aureus mrsa bug care must taken ensure spread person 288 m harrison said saba eat benefit medication vomit week however eats small amount obviously enough sustain impression m harrison evidence saba eats one child rather hungry course receive sustenance feeding tube 289 m harrison said saba language structure simple make request always understandable ask help need put hat cannot dress undress cannot put sock put foot shoe velcro shoe must first placed front foot 290 playground saba attempt climb frame put foot first rung three requires prompting lift foot onto next rung cross two frame plank hand held security 291 m harrison said conversation mr shaor 30 march 2017 described routine follows night saba said handed wife day work challenged reference mr shaor work accepted recollection conversation vague mr shaor may made reference work relied content report prepared meeting exhibit 27 292 report largely consistent evidence gave highlight severity saba condition medical evidence liability293 beginning summary make following point doctor deal postnatal treatment saba understand case put behalf plaintiff allegation negligence pursued relation treatment negligence alleged failure defendant staff inform counsel plaintiff twin b condition prospective condition could make informed decision whether proceed selective even total termination pregnancy 294 consequential issue one causation parent informed counselled could termination taken place particular regard requirement state territory law ethic committee availability termination australia abroad associated cost 295 dr cole consultant obstetrician gynaecologist specialist maternal fetal medicine first report dated 9 july 2012 asked comment action defendant also ncdi first ultrasound 8 july 2011 carried ncdi 296 dr cole saw difficulty care provided ncdi dr cole observed significant abnormality detected appropriate course action taken e referral tertiary fetal medicine service detailed evaluation 297 service referred dr cole fmu canberra hospital 298 dr cole noted good deal information missing document provided nevertheless able reach preliminary finding dr cole concentrated examining condition evident saba birth could detected antenatally 299 dr cole concluded information available condition could identified birth would least difficult identify 300 dr cole provided information leading supplementary report dated 30 august 2012 doctor noted absence medical note document thought important based assumption antenatal counselling provided said omission thought short standard reasonably expected tertiary fetal medicine service 301 dr cole noted possibility oesophageal atresia tracheo oesophageal fistula raised following ultrasound examination dr meiri robertson 22 1 week 30 4 week gestation question relevance believe whether concern discussed parent saba nouri course pregnancy 302 comment highlight core liability issue case defendant doctor knew condition tell parent parent say told m nouri would undergone termination australia elsewhere thus preventing birth saba already stated plaintiff say action would taken even involved termination pregnancy respect twin 303 relation counselling dr cole said would normal practice fetal medicine unit counsel parent regarding significance consequence detected fetal anomaly counselling would usually include discussion potential risk additional abnormality along consideration regarding range possible outcome prognosis best case worst case scenario possible estimate albeit highly variable likely outcome particular fetus taking account specific feature case 304 dr cole continued following counselling regarding significance consequence fetal abnormality discussion possible course action pregnancy would usually considered reasonable would commonly include management plan parent wish continue pregnancy taking account legal framework termination possibly raising option termination pregnancy would parent technically mother indicate wished proceed pregnancy 305 relation significance finding dr cole said combination major cardiac abnormality oesophageal atresia tracheo oesophageal fistula carry significantly worse prognosis either condition isolation thus condition suspected opinion would reasonable proper discus suspicion parent including information regarding poorer prognosis diagnosis later proved correct 306 final report dated 12 september 2017 dr cole provided three medical report asked answer two question answering first question asked assume parent expressly requested fully informed potential problem pregnancy case would appropriate advice give 28 week following scan 22 september 2011 307 assumption dr cole said hypothetical counselling would provided plaintiff would follows number problem identified twin 2 including poor growth possible heart abnormality two vessel cord excessive fluid around baby thing potential cause problem although significance potential problem vary example poor growth may lead decision deliver baby early seriousness depend early delivery required moment feature would suggest delivery required soon could change reason need continue regular ultrasound monitor baby growth health delivery term near term likely cause major problem baby however earlier delivery required could lead problem including varying degree brain injury lung problem etc unfortunately possible stage predict preterm delivery required addition need aware see one thing wrong baby often worry serious underlying problem link different problem able rule serious potential problem amniocentesis showed baby normal chromosome however important aware condition detected chromosome testing sometimes serious associated physical problem intellectual disability etc time underlying serious problem unfortunately may able know baby born whether additional problem identified yet 308 dr cole added counselling would provided response parent question 309 second question asked dr cole explain option available plaintiff requested selective termination pointing selective termination carried risk twin dr cole explained late selective termination rule australia vary state state even within different institution state said patient request late often defined greater 23 24 week gestation termination many hospital refer request termination review panel committee hospital role committee review circumstance case confirm satisfies applicable legal framework make decision whether hospital prepared allow termination proceed panel committee may elect refuse patient request termination even satisfies legal requirement 310 dr cole ended letter way case saba nouri parent requested selective termination request would presented consideration relevant committee canberra hospital given lack specific underlying unifying diagnosis basis known identified abnormality non specific nature associated lack specific prognostic information 22 september 2011 clear whether request would granted refused 311 note question dr cole consequently answer restricted selective termination deal termination respect twin 312 dr farrow general paediatric surgeon particular significance role time report director clinical governance sydney child hospital network first report dated 21 may 2014 setting history matter dr farrow note specialist cardiology ultrasound dr murphy 23 week gestation demonstrate significant cardiac anomaly dr farrow continued important absence significant cardiac disease saba anomaly eminently survivable 313 quoted comment contrast drawn survivable anomaly abnormality plaintiff wish informed latter anomaly would affected survivability twin b distinction seems behind dr farrow answer first question asked whether plaintiff referred genetic counselling 23 week gestation answered fetus genetically normal without serious life limiting cardiac defect anomaly detected 314 observe however ncdi ultrasound 8 july 2011 noted two vessel cord ultrasound 15 july 2011 noted anomaly femur length 315 dr farrow different view following 30 week ultrasound possibility oesophageal atresia raised said stage enough information available justify consultation genetic counsellor dr farrow went say referral made soon genetic abnormality detected 316 asked finding clinical geneticist might made dr farrow said intrauterine growth retardation two vessel cord abnormal venous drainage heart small stomach demonstrated ultrasound 22 september 2011 query tef 317 understand question dr farrow asked ethic committee would agreed late termination 30 week gestation reply believe ethic committee would agreed late termination based known saba antenatally cardiac anomaly thought minor suspicion tof surgically correctable condition however full extent saba anomaly appreciated revealed mother antenatally late termination may considered especially continuing pregnancy saba detrimental effect mother selective termination one twin without risk around 10 rate losing foetus however two amniotic sac two cord risk might lower however area expertise would defer expert regard 318 think plain dr farrow asked assume plaintiff would preferred termination fetus birth one normal one disabled child 319 conclusion dr farrow said summary appears window opportunity around 30 week sic gestation ultrasound 22 september 2011 performed abnormality detected referred genetic counsellor paediatric surgeon neonatologist opportunity discus pro con continuing pregnancy twin 2 parent lost 320 dr farrow point even plaintiff consulted decision may made continue pregnancy twin 2 noted plaintiff case anomaly known would led decision favour termination 321 second report take form email dated 14 september 2017 dr farrow address ought done following fmu high risk meeting 6 september 2011 date gestation term 28 week 2 day dr farrow said identification multiple abnormality meeting suggestive vacterl rather simply suspicion oa would reasonable parent referred paediatric surgeon antenatal consultation counselling advice regarding survivability oa may tempered presence potentially significant abnormality ultimately parent make decision continuation pregnancy based information provided counselling ideally would discussed known possible defect time well oa oa alone treated successfully oa significant defect complex decision would considered option put parent vacterl associated genetic condition specific genetic cause normal karyotype exclude vacterl suspicion cardiac problem limb problem polyhydramnios small gastric bubble suggest vacterl condition present suspected ultrasound known hospital staff given subjective condition parent listed believe likely parent provided full information may chosen selective twin termination information likely would provided full context antenatal consultation paediatric surgeon 322 think quoted passage show dr farrow opinion following high risk meeting information available defendant plaintiff received appropriate counselling including outlining option available based dr farrow first report think considered termination possible around 30 week gestation noted meeting took place day gestation reached 30 week 323 based dr farrow opinion assuming appropriate counselling take place high risk meeting suggests defendant breached obligation plaintiff sometime 6 september 2011 whether breach obligation also breach duty care owed defendant discussed 324 dr hern practice boulder colorado usa sure precise qualification practice includes carrying termination asked whether would performed selective termination m nouri presented 28 30 week gestation 325 responded report dated 2 april 2017 would accepted candidate selective termination stated termination preferably performed 32 34 week gestation allows lung maturation healthy fetus 326 dr hern say procedure would carried office m nouri would travelling australia local attending physician could admitted local university teaching hospital dr hern gave warning m nouri case returning physician australia would mean long arduous journey including flight 16 hour los angeles sydney counting travel time colorado los angeles sydney new south wale time would risk precipitate labour delivery well deep vein thrombosis restricted movement accompanying risk thromboembolism death unmanageable risk preventing major complication death interval would require close coordination physician medical resource point travel alternative would m nouri established relationship medical professional united state could await delivery healthy twin 327 putting aside dr hern geographical error location sydney plain giving stern warning danger would involved return trip 328 evidence arrangement could made afforded also evidence cost involved practicality engaging medical professional usa example evidence whether travel insurance may available also evidence likely cost remaining america capacity plaintiff pay assorted medical service 329 dr hern gave oral evidence way audio visual link colorado unfortunately visual element link last long however evidence able continue dr hern able heard even seen 330 dr hern gave evidence performed selective termination number occasion said essential twin subject termination could identified noted also vital placental connection 331 dr hern said patient arrives selective termination would insist upon provided much information possible would also carry ultrasound examination agreed also needed definitive diagnosis problem problem twin 332 procedure involved insertion needle area around fetal heart injection digoxin occurred twin would monitored confirmed feticide successful 333 dr hern said several risk inherent carrying procedure would concerned patient general condition said seen anything document raised concern would reserved judgment examined patient 334 dr hern said polyhydramnios would present challenge sometimes mean difficult place needle correct position said challenging aspect procedure probably explained carried many practitioner 335 dr hern said would checked information patient treating doctor australia dr hern asked assumption upon proceeded giving report identified assumption stated letter plaintiff solicitor dated 2 december 2016 exhibit 31 336 dr hern said would consult patient treating doctor ascertain definitive diagnosis serious nature question answer occurred honour ask question doctor judge ask question able talk patient treating doctor whatever reason would proceeded selective termination dr hern written document doctor saying agreement patient decision going help following operation indistinct verify serious abnormality 337 evidence seems important determining issue causation 338 three report dr maclean paediatrician clinical geneticist first report dated 22 august 2013 although expressed concern lack documentation dr maclean set extensive detailed history examining background note previous termination pregnancy top known defendant continued history termination pregnancy relevant genetic counselling practically might true known provided avenue raise discus couple experience top addressing one question raised top offered broadly discussion late termination pregnancy implicit expectation fetal medicine specialist geneticist based ultrasound finding response woman couple may guided discussion e top something would would countenance 339 present purpose think dr maclean relevant comment first report relate opinion position 30 week gestation start saying combination cardiac anomaly sua sga discordance compared growth co twin together polyhydramnios sufficient lead amnioreduction 29 week gestation suspicion tof oa raise prospect multi system disorder finding opinion sufficient alert counsel parent potential serious underlying disorder additional finding shift balance probability towards multi system disorder finding allow individual diagnosis established level overall certainty could conveyed parent 30 week gestation also directly influenced limitation prenatal diagnosis tof oa discussed detail later report exhibit 2 page 191 340 dr maclean go discus capacity prenatal diagnosis assorted constituent vacterl say condition association cannot confirmed laboratory diagnosis exclusion excluding chromosomal large scale genomic disorder known syndromic association presence morphological sonographic feature sufficient satisfy criterion diagnosis vacterl antenatally proof diagnosis antenatal genetics assessment incomplete assessment alternative diagnosis context exhibit 2 page 198 341 later report conclusion dr maclean say vacterl association diagnosis might suspectedin utero diagnosis cannot definitively established antenatally practically commonest association finding suspected tof oa useful direct fetal medicine assessment potential directed assessment anorectal spinal malformation finding suggest cloacal urological disorder diagnosable antenatally feature indicate duodenal atresia exhibit 2 page 210 342 dr maclean concluded finding 22 september 2011 sufficient involve neonatologist sufficient refer m nouri clinical geneticist continued based knowledge 10 antenatal diagnosis tof oa result etopfa respecting individual right woman couple acknowledgement late termination pregnancy option could reasonably expected necessarily follow individual institution tch would agreed offer late termination pregnancy suspected tof oa following ethic committee review reasonable speaking parent reinforce positive outcome infant tof oa without concomitant life threatening malformation possible state documentation provided mr m nouri adequately informed finding third trimester implication finding potential association option including selective termination believe genetics referral indicated 23 week gestation based report dr murphy dr robertson reporting significant cardiac anomaly would question pre operative consent process time delivery prompt thorough assessment occurring alongside critical intervention rather missed opportunity m nouri mr shoab sic better informed tof oa repair complication pre operatively mean antenatal paediatric surgical consultation might prompted review antenatal finding considering implication management outcome potential complication ongoing sequela exhibit 2 page 210 211 343 dr maclean second report dated 24 april 2017 time provided documentation including documentation concerning high risk meeting took place 6 september 2011 344 dr maclean also deal report dr challis dated 10 april 2015 relied upon defendant agree dr challis make observation however central issue case responded dr challis suspicion tof tef raised parent prior delivery enable understand expected process care infant severe surgically correctable anomaly tof genetic counselling might done genetic counsellor experienced fetal medicine consultation clinical geneticist important step assist couple understanding providing safe non judgemental non directive environment couple raise question concern clinician able respond concern including putative request selective feticide suspected fetal anomaly exhibit 2 page 225 345 dr maclean end report way key conclusion overall clinical picture emerging 28 week confirmed 30 week sufficient information consider tof relevant indeed increasingly likely diagnosis arrange various specialist multidisciplinary input neonatology surgical clinical genetics subsequent week allow family time process information based reflection develop approach offered care family pregnancy child following delivery depending couple approach request individual decision surgically remediable nature defect stage pregnancy would mean family request selective feticide would mandate ethic committee review one could assume assent readily forthcoming accordingly option may need considered family seek pursue selective feticide would require couple access private service sometimes internationally give support couple autonomous decision making outlined correspondence dr hern similar pathway accessed family would attest professional experience furthermore likely many selective termination late topfa done outside public hospital system access data respective proportion data tof top discussed previous report exhibit 2 page 228 346 think emerges dr maclean conclusion 30 week gestation plaintiff counselled chosen selective termination would reasonably available either upon approval ethic committee public hospital privately australia internationally dr maclean certainly exclude reasonable possibility selective termination available 30 week gestation 347 dr maclean last report dated 26 may 2017 report asked question amongst answer following diagnosis tof vacterl constitutes sufficient ground couple request termination pregnancy specific concern regarding cardiac anomaly growth restriction would indicate risk early mortality greater morbidity practically likely significant proportion referral etopfa tof made 20 week onwards tof vacterl condition typically apparent pregnancy relatively advanced e time second trimester ultrasound onwards feature increase diagnostic likelihood polyhydramnios become apparent third trimester given balance probability favouring diagnosis tof vacterl 28 week two day opinion taking case ethic committee parent behalf would opposition termination pregnancy selective feticide circumstance third trimester termination twin pregnancy creates unique circumstance potential affect survival well co twin issue related top twin pregnancy outside expertise discussed prof challis dr hern likely material view ethic committee would envisage consensus 6 7 health professional agree selective feticide tof vacterl uncertainty case limitation fetal medicine specialist make definitive antenatal diagnosis tof e beyond reasonable doubt opposed balance probability attested literature expectation normal neurocognitive outcome surgically remediable nature tof would likely sway opinion committee away decision approve termination selective feticide family expressed concern pregnancy experience disability family raised affidavit relevant coming understanding couple view diagnostic uncertainty risk precedent couple sic accessing etopfa non life threatening condition rejected ethic committee finally option would remain open family would pursue selective feticide outside public hospital system either locally internationally policy guideline differ sic nsw act health exhibit 2 page 233 234 348 quoted passage reinforce conclusion dr maclean second report even 30 week gestation termination available option either via ethic committee ruling public hospital outside public system moreover public system restricted international option might include access termination within australia 349 notably exhibit c suggests link overseas service available act department health website defendant conceded dr hern practice described contactable internet 350 dr maclean cross examined report taken article report refer order establish inter alia number termination followed diagnosis tof picture became little confusing led asking following question honour saying soon get suspicion tof need looking thing anomaly need suspicious sort thing dr maclean yes increase one index suspicion thank honour 787 42 788 1 351 dr maclean agreed tof could definitively diagnosed postnatally 786 1 352 dr maclean also cross examined likelihood tof mr higgs sc agree foetal medicine expert long history experience interpreting ultrasound would specialist would better placed image work whether enlargement right atrium heart would explain mechanical obstruction dr maclean particular instance actually divergent opinion cardiologist foetal medicine specialist right atrial pathology nature effect additional specialist providing interpretation assistance coming independent view important consider range different option various opinion present certain instance even challenge opinion put forward question whether impingement leading obstruction versus alternative pathology entirely relevant consideration mr higgs sc proceeded basis dr murphy disagreed explanation mechanical obstruction explaining polyhydramnios dr maclean dr murphy report appeared advance polyhydramnios developing subsequent foetal echocardiogram undertaken relation later presenting pathology mr higgs sc aware later october correspondence royal hospital woman dr murphy see whether anything could add finding made canberra hospital dr maclean correspondence dr antonia shand aware correspondence dr murphy mr higgs sc see taken correspondence account dr maclean yes considering pathological implication excess extracardiac major venous abnormality important information geneticist thinking various possibility may occurring mr higgs sc one matter go page 193 tender bundle second last paragraph page refer body literature selective late termination twin pregnancy indicates risk co twin paraphrasing read body literature referred report dr maclean mr higgs sc really area obstetrician express opinion upon would agree dr maclean answer question yes differential sic expertise foetal medicine specialist 796 25 797 20 353 difficulty cross examination concerning likelihood tof tof suspected early 6 september 2011 issue therefore whether likely tof rather whether parent told suspicion detail 354 understanding dr maclean evidence identified difference opinion fmu specialist dr murphy need significance difference opinion clarified consistent plaintiff evidence dr robertson concerned opinion cardiac position 355 dr maclean emphasised need investigation polyhydramnios returned honour yes carry doctor finished dr maclean question whether impingement distortion oesophagus sufficient cause severe obstruction lead polyhydramnios requires drainage one multiple occasion see plenty child cardiomegaly atrial enlargement might feeding difficulty necessarily get severe oesophageal obstruction first principle one thing would considering interpretation sign relation finding 796 16 796 23 356 asked explain role geneticist pregnancy said dr maclean might come specific diagnosis chromosomal abnormality common one might syndrome generally well understood people population foetal medicine specialist something little might asked come assist explain family chromosome result meant would mean future child option midst pregnancy subspecialists example may wish discus helping inform family implication finding pregnancy situation pregnancy might number finding suggestive individual genetic diagnosis often genetics rare condition work much part team work subspecialists might trying pull together thread pathology necessarily make sense example might bring back case might considering okay well feature present might telling u come together individual diagnosis certainty uncertainty around way able add certainty pregnancy additional test might done establish something given diagnosis dealing family work much genetic counsellor non directive approach helping family understand information often helping assisting foetal medicine specialist busy foetal medicine specialist might amount time geneticist afforded able sit family go information much basing discussion foetal medicine specialist say taking u series finding talking family might mean might link say case involving neonatologists much multidisciplinary approach certain instance may question depending stage pregnancy termination likelihood question arising context sometimes context individual family previous experience may make easier topic raise discus pregnancy getting second third trimester obviously topic becomes much sensitive often led family certain instance 797 28 798 18 357 also asked doctor whether important distinction parent informed possible tof immediately high risk meeting 6 september 2011 28 week 2 day gestation informed 22 september 2011 30 week 4 day gestation answer little different opinion expressed report exhibit 2 page 226 thought parent told earlier time caveat matter would reviewed 358 dr schmidt obstetrician gynaecologist first report dated 5 october 2012 asked two question reflect primary issue case whether plaintiff adequately informed birth twin degree abnormality gastrointestinal tract including oesophagus duodenum anus w hether termination pregnancy could offered mr m nouri known abnormality antenatally 359 dr schmidt give definitive answer first question essentially lack certain information second question set legislation new south wale australian capital territory said conclusion single ultrasound scan 30 week 4 day gestation twin pregnancy suspicion tracheo oesophageal fistula would sufficient ground termination pregnancy 30 week 4 day gestation radiologist concerned enough suggest neonatal review arranged sic antenatal geneticist consulted vacterl syndrome may well diagnosed antenatally 360 second report dated 23 may 2017 dr schmidt asked ethic committee canberra new south wale would sufficient ground termination pregnancy 28 week 2 day geneticist suspicion fetus may suffering vacterl syndrome answered taking consideration mental health mother probability severe genetic defect fetus committee comply request mother treating practitioner termination pregnancy 361 dr schmidt also dealt second question w hether ethic committee canberra new south wale advised mother want risk abnormal child would guideline allow sufficient ground termination pregnancy 28 week 2 day 362 dr schmidt responded considering mental health mother circumstance whereby aware could severely affected child wish proceed pregnancy termination offered 363 dr schmidt opinion think generally accordance dr maclean albeit additional consideration mental health mother evidence given plaintiff mother mental health 364 dr schmidt final report dated 12 september 2017 report asked discus risk air travel america mother decided seek termination country concluded einas nouri could given green light travel following amnioreduction would recommended treated anticoagulant compression stocking mobilise regularly throughout flight drink large quantity fluid water 365 doctor opinion canvass flight america deal return flight particular danger identified dr hern also suggests precondition flight would amnioreduction procedure recalled m nouri asked second procedure underwent stopped due discomfort would suggest dr schmidt precondition would met m nouri give evidence would undergone another amnioreduction suggested 366 dr schmidt also asked plaintiff referred clinical geneticist paediatric surgeon neonatologist unfortunately question include specific point gestation term question addressed dr schmidt answered combined problem twin 2 indicate need antenatal diagnosis parent make informed choice regard option mr m nouri well educated given accurate truthful advice advice given specialist field genetics geneticist may diagnosed vacterl information presented although speculative parent would better understanding le anxiety alternative regard diagnosis excluded doubt generalist obstetrician confronted diagnostic dilemma presented twin 2 would sought advice geneticist referred einas foeto medicine unit care pregnancy 367 report dr sella practice albuquerque new mexico usa apparent whether qualification beyond general practitioner nevertheless appears work practice devoted female issue called southwestern woman option state abortion provider provided first second third trimester abortion woman around world including australia 368 dr sella go say m nouri presented 28 week gestation would assessed abortion provided obstetric issue contradiction outpatient termination pregnancy addition would required plaintiff understand twin would aborted selective termination performed clinic would also needed satisfied termination absolutely necessary mother physical emotional well 369 think implicit last quoted passage dr sella report would wanted consult m nouri treating doctor would find extraordinary would example form conclusion absolutely necessary based consultation immediately performing procedure procedure available termination respect twin 370 another difficulty dr sella report starting point contacted shortly 28 week gestation say would occurred contact made around 31 week ie shortly 22 september 2011 factoring logistics getting america cannot said dr sella would still necessarily prepared perform termination stage would involved termination viable healthy fetus twin 1 371 limitation qualification precise implicit dr sella report allow conclude dr sella would performed termination contacted 22 september 2011 372 turning defendant medical evidence first report dr challis associate professor executive medical adviser obstetrics sydney child hospital current purpose head fmu child hospital asked number question firstly explained two vessel cord referred single umbilical artery said finding generally clinical significance prompt careful review fetal anatomy exclude presence associated abnormality 373 finding led referral canberra hospital fmu step taken unit 15 july 2011 dr challis said step including amniocentesis reflected correct approach said step taken fetal medicine unit appropriate thorough respect appropriate normal practice fetal medicine unit 2011 carefully repeated morphology scan fetus became suspicious cardiac abnormality growth problem twin 2 addition sua anatomical feature twin 2 found normal time including head brain spine face neck skin abdominal wall gastrointestinal tract kidney bladder extremity skeleton 374 dr challis conducted examination chronology treatment view identifying disability might revealed continuing ultrasound examination came consultation dr robertson 22 september 2011 said 22 september dr robinson sic appropriately carefully examined fetus structural cause polyhydramnios sac b per list noted stomach twin small thus suspicious swallowing problem twin cause polyhydramnios postulated report may due pressure fetal chest possibly trachea oesophageal fistula tef 375 important remember negligence alleged case medical action diagnosis doctor canberra hospital rather directed told tell plaintiff twin b 376 dr challis asked vacterl diagnosed pregnancy responded possible make diagnosis vacterl stage pregnancy vacterl syndrome diagnosis exclusion baby known exhibit multiple compatible anomaly syndrome genetic cause found may suspected never confidently diagnosed antenatally diagnostic karyotypic finding amniocentesis case available sonographic finding diagnosis vacterl could made confidence antenatally stage anal malformation diagnosable antenatally meckel diverticulum abnormal pouch intestine diagnosable antenatally duodenal atresia cannot diagnosed presence oesophageal atresia 377 statement suggestive advocacy dr challis go commend staff canberra hospital even suspecting pathology may well right point issue whether become suspicious suspicion communicated parent 378 dr challis asked availability termination 20 week said selective termination would available canberra would available sydney performed number procedure next question examine possibility termination gestation progressed said opinion request selective feticide would agreed stage pregnancy based contemporaneous information available time principally stage pregnancy anomalous twin diagnosed anomaly anomaly would likely result dismal outlook baby believe unlikely foetal medicine specialist department would even undertook take committee case committee agreed selective feticide anomalous twin structural genetic abnormality committee confident would lead dismal outlook risk welfare co twin could justified aware case presence sua polyhydramnios suspected oesophageal atresia resulted request late termination finding non specific would impossible committee conclude likely compatible poor outlook baby 379 asked approach question relation termination pregnancy dr challis said principle response question 12 selective termination apply possibly strongly feticide forbothbabies would required subsequent induction labour 24 week baby could born alive survived complication extreme prematurity confidently state fetal medicine unit nsw would undertaken double feticide gestation vague apparently minor abnormality seen one twin pregnancy 380 dr challis dr schmidt dr cole gave evidence conclave dr cole telephone nevertheless able participate helpfully conclave useful particularly despite objection taken defendant conducted non adversarial manner opinion expert discussed addition benefit answer question generally absent doctor cross examined separately 381 dr schmidt emphasised generalist answer given standpoint nevertheless input assistance particular position person refers patient fmu think convenient way approach oral evidence summarise consider main point arising amniocentesis test revealed chromosomal abnormality normal course parent would spoken need testing appropriate might involve ultrasound regular interval monitor fetus b dr cole added would appropriate maintain high index suspicion parent would counselled effect still concern although still possibility normal outcome c relation termination pregnancy dr challis said issue complex one complication pregnancy anomaly discovered 20 week gestation meaning new south wale ethic committee would need convened approve termination dr challis ultimately said termination would discussed raised parent background dr murphy report indicating structural cardiac abnormality view dr robertson added namely right atrium enlarged contrary dr murphy opinion dr challis said would follow distinction would counsel parent still concern functional status baby think plain counselling never occurred dr robertson difference opinion also never chased dr cole said circumstance would either arrange second opinion repeat echocardiogram cardiologist dr schmidt agreed also observed simple phone call cardiologist might order dr challis outlined risk carrying selective termination 22 23 week gestation agreed viable option wait 32 week gestation protect second fetus e dr challis said seen venous drainage anomaly type diagnosed dr robertson observed gave advantage experienced think dr challis overstated position opinion dr robertson experienced something like condition make specialist condition rather emphasised need follow difference opinion dr murphy f dr cole agreed dr robertson diagnosis anomaly g dr challis said tof bread butter condition fetal medicine specialist extent dr challis suggesting easily correctable opinion different dr robertson dr challis dr cole agreed absence fetal stomach strong indicator tof however presence stomach necessarily exclude tof although made le likely none doctor saw significance delay discussing tof parent 6 22 september 2011 h doctor asked comment dr robertson opinion polyhydramnios product enlarged right atrium placing pressure oesophagus think fair say doctor disagreed possibility although different degree dr challis referred likelihood multiple rare thing thought hypothesis reasonable dr cole different view said think something would list explanation situation dr schmidt even stronger view stating simply see relationship enlarged right atrium oesophagus j dr challis gave detailed statement would said parent following appearance polyhydramnios plaintiff version nothing close dr challis explanation provided dr cole endorsed type explanation dr challis suggested dr schmidt said frank conversation intelligent people going raise concern discussion go k asked sort counselling would given possible ramification tof dr cole dr challis said content conversation would depend degree parent response would dictate amount detail would given dr schmidt different view stating parent needed given detailed description aspect tof including risk involved nature procedure would necessary dr schmidt said would defer opinion fetal medicine specialist point l dr schmidt view good deal counselling called appearance polyhydramnios particular stage lot going wrong thought astute geneticist could reached diagnosis vacterl least would high list dr challis dr cole different view relation vacterl diagnosis exclusion constellation many finding dr challis said enough information available saba birth reached unifying diagnosis still range possibility see need involved clinical geneticist although dr cole agreed dr challis add thought necessary provide counselling revolving around uncertainty explaining parent potential unifying condition evidence pointing particular condition point time even defendant version counselling type took place n doctor asked parent bringing issue termination pregnancy 30 week gestation suspicion tof dr challis said would inform parent absent definitive diagnosis would unlikely termination would approved dr cole said long uncertainty around diagnosis prognosis situation challenging noted however parent persistent meeting hospital ethic committee would convened dr cole stated parent advocate ethic committee particular case would difficult case sell dr challis said approval given would carried procedure doctor agreed approval given unlikely procedure would carried doctor australia outside public hospital system p doctor generally united opinion risk would faced parent decided travel outside australia termination dr schmidt said however window opportunity first amnioreduction mother long cervix 3 1 cm q doctor referred risk going labour air risk healthy baby born prematurely risk procedure performed doctor known parent r minor disagreement doctor regarding medication might taken guard risk deep vein thrombosis relevant medication clexane dr schmidt dr cole difficulty use dr challis would prescribed drug mother high risk postpartum haemorrhage history condition parent insisted travelling would provided letter introduction much detail possible assist overseas doctor asked doctor state note particular error concerning amnioreduction procedure twin found exhibit 2 page 105 u dr challis dr cole generally agreed mistake significant product busy practice found response surprising particularly regard need accurate note dr challis dr cole significantly disagree overall standard note dr challis said brief note dissimilar note might made unit dr cole responded would take different view dr challis honest would think role clinical note several folder sic obviously medico legal document much important role term internal working hospital recognises multiple party usually involved area sic patient documenting medical issue thought process care provider thought process patient direction care enable others followed insight think extremely important would think quality extent documentation clinical interaction case fall well would consider personal standard certainly junior staff produced lack note like complex case like would extraordinarily disappointed behaviour would see important issue case honest 892 42 893 15 v dr challis described procedure involved selective termination also referred counselling social worker psychiatrist psychologist would involved said procedure done case outlook fetus dismal think make world better place think point endeavouring make highlight distinction current case prenatal indication dismal course contrasted dismal eventuality 382 leaving conclave think appropriate express view difference opinion note entirely agree dr cole think busy practice excuse inferior note note may important possible litigation purpose certainly important continuing management patient fact doctor time prepare proper note excuse indication either inefficiency doctor preparedness see patient seen also accept could product doctor overworked time resource complete note distinct impression fmu busy 383 far mistake concerned concerning obstetric history amnioreduction carried twin think carry significance excused simple error presence note discussion procedure carried never actually occurred view capable significant consequence doctor may busy mistake may easily made mistake view bespeaks negligence although negligence type alleged present case 384 state note regard brevity error however assist defining overall picture working fmu degree accept version event unit doctor advanced absence detailed note set background many thousand patient seen unit since 2011 strongly point favour acceptance plaintiff version conversation occur 385 dr evans neonatal specialist report commences page 353 exhibit 2 dr evans appropriately indicates area think necessary expertise answer question posed gained benefit report area plainly expert 386 discussing conversation plaintiff dr evans make comment 34 bearing mind diagnosis tof uncertain stage 28 30 week counselling abnormality would depend cue parent wanted go detail often parent want much detail stage important tailor counselling individual concerned 387 impression plaintiff parent intelligent well educated would interested know detail occurring condition twin b assumption dr evans continued 35 indicated wanted detail would discus abnormality including chromosomal abnormality excluded case 10 tof case may vacterl association highlighting abnormality association difficult diagnose antenatally outcome vacterl association usually good 388 find difficult imagine even outcome good would still substantial effect newborn child importantly however even dr robertson version vacterl association discussed parent 389 dr currie paediatric surgeon report commences page 365 exhibit 2 first question asked dr currie whether reasonable hospital arranged prenatal consultation paediatric surgeon possibility tof raised parent 22 september 2011 question course assumes possibility raised parent 390 dr currie response seems cover side argument believe unreasonable arrange prenatal consultation paediatric surgeon prenatal diagnosis tof unreliable made certainty ultrasound low specificity sensitivity condition condition diagnosis known immediate post delivery treatment needed believe paediatric surgical consult prenatally vital case tof given uncertainty diagnosis clinically paediatric surgeon cannot add much prenatal treatment except insist child born unit offer specialised paediatric surgical service said prenatal consult often parent driven wish available fact presented case child tof 391 understood dr currie report think prenatal consultation parent paediatric surgeon necessary tof suspected recognises parent might wish informed possible consequence tof case wish taken account already said plaintiff impressed parent would wished informed addition note dr maclean gave evidence suspicion tof existence number abnormality 392 think medical evidence taken whole unquestionably support plaintiff contention informed suspicion tof also possible ramification newborn child observed identified heart anomaly issue doctor nature heart condition least effect evidence shortened femur history small stomach return polyhydramnios 22 september 2011 enough issue necessitate discussion parent outlining meaning tof manner could addressed relevance twin b fetal state likely condition birth 393 also draw following conclusion medical evidence including report oral evidence doctor note taking record keeping fmu well acceptable standard b ethic committee state territory australia would approved selective total termination 22 week gestation c termination would available australia outside public health system assuming parent informed tof 22 september 2011 make difference informed high risk meeting 6 september 2011 e vacterl association could conclusively diagnosed saba birth suspicion presence available f even without diagnosis vacterl association indication high probability saba would born disability particular tof might significant effect future life would probably require corrective surgery expert travel evidence394 two report travel agent mr mcnamara mr sheikhdin tendered plaintiff exhibit l respectively mr sheikhdin previously made travel arrangement plaintiff 395 report deal rule relating pregnant woman flying later stage pregnancy essentially apparent flight america taken without medical support 32 week pregnancy united airline allows travel 36 week pregnancy delta seem restriction 396 however travel agent view notwithstanding airline selected possibility upon presentation airport airline staff could potentially seek medical proof passenger fit fly would generally form letter doctor addition mr sheikhdin said made aware complication pregnancy passenger seeking ticket would first clear issuing ticket relevant airline 397 think limit draw evidence travel agent airline ticket could purchased m nouri may required production medical material always subject right airline refuse accept passenger 398 one mean ameliorating risk involved would take flight stopover example hawaii flight lengthy longest sydney dallas 17 hour operated qantas mr mcnamara sure flight operation 2011 duty care399 although thecivil law wrong act 2002 act always starting point action negligence real issue case defendant could potentially liable unders 43or standard care defined in 42 applicable issue case confined content duty care whether breach duty 400 defendant conceded owed plaintiff duty care 401 general duty medical negligence matter described inrogers v whitaker 1992 hca 58 175 clr 479at 5 neither court appeal court dispute existence duty care part appellant respondent law imposes medical practitioner duty exercise reasonable care skill provision professional advice treatment duty single comprehensive duty covering way doctor called upon exercise skill judgment 2 sidaway v governor bethlem royal hospital 1985 ukhl 1 1985 ac 871 per lord diplock p 893 extends examination diagnosis treatment patient provision information appropriate case 3 gover v south australia 1985 39 sasr 543 p 551 course necessary give content duty given case 402 asked party note respectively submitted content duty note outset different formulation party distinguish parent word suggested duty care owed mother father also suggested distinction could made content duty care mother father 403 defendant note took form primary position backup position primary position follows respect claim damage wrongful birth putting aside specific enquiry parent duty provide information parent unquantifiable risk consequential associated condition possibility tof present could diagnosed birth b consequential associated condition could diagnosed birth c risk unquantifiable small reasonably foreseeable mother would seek could obtained termination pregnancy gestation twin pregnancy properly advised unavailability late termination locally danger twin flew overseas e absence specific enquiry doctor position defendant would reasonably regard information small unquantifiable risk consequential associated condition material decision mother needed make circumstance termination pregnancy would reasonably thought available available locally 404 defendant primary position clearly extended beyond content duty question causation breach 405 defendant secondary submission circumstance matter accepted duty warn possibility tof small stomach noted 22 september 2011 notwithstanding tof possibility 406 plaintiff submission follows duty care exercise reasonable care skill provision professional advice treatment instance plaintiff contend content duty inform possible disability anomaly twin 2 saba timely manner could make informed decision whether continue pregnancy 407 final written submission plaintiff position refined following instance plaintiff maintain content duty care includes obligation part defendant medical staff keep plaintiff informed abnormality detected pregnancy including providing sufficient information make informed decision whether continue pregnancy option termination event plaintiff desire 408 taking cue respective submission come view content duty care case expressed follows defendant duty care inform parent enable make informed decision treatment including termination pregnancy matter reasonably relevant wellbeing mother fetus including condition might reasonably expected materially affect fetus following birth duty inform arose defendant possessed enough reliable information allow reach conclusion 409 plaintiff submitted three obligation arose duty care raise plaintiff anomaly disclosed upon ultrasound testing b explain plaintiff possible significance anomaly c refer plaintiff appropriate counselling option available informed decision might made continue pregnancy breach duty care410 already made number factual finding indicate acceptance plaintiff version told told follows find breach duty care think finding reflected observation dr cole already quoted combination major cardiac abnormality oesophageal atresia tracheo oesophageal fistula carry significantly worse prognosis either condition isolation thus condition suspected opinion would reasonable proper discus suspicion parent including information regarding poorer prognosis diagnosis later proved correct 411 also taken following account reaching conclusion although tof possibility significant enough condition brought attention parent defendant submitted diagnosis tof bread butter fetal medicine specialist evidence dr challis accepting case condition bread butter potential parent parent would entitled informed possibility condition even probably capable early correction likely require treatment newborn baby possibly continuing treatment child grew b defendant submitted regard advice provided parent arising various option number possible diagnosis surgically correctable one would know baby born precisely point must case parent informed possible diagnosis require surgery c even tof possibility nevertheless possibility real condition nature parent would entitled informed defendant written submission repeated number occasion parent sophisticated clearly able understand information people needed shielded bad news complicated information also relevant possible cardiac abnormality often discussed possibility separate condition would formed part overall discussion fetus 412 however accepted defendant submission earliest date duty inform might arisen 22 september 2011 although suspicion tof 6 september 2011 reasonable matter considered scan conducted noting last scan occurred 5 september 2011 dr cole agreed proposition 870 23 413 plaintiff submitted cardiac condition also feature breach debate point made failure inform parent cardiac issue prior 22 september 2011 indicated attitude defendant provision information also delayed consideration preparation termination 22 september 2011 reject submission following reason case run basis failure inform tof b prefer plaintiff evidence failure inform tof accept given information cardiac issue reason fmu cause going dr murphy raised frequently dr robinson relation another opinion c importantly dr maclean said sufficient feature 28 week fm specialist raised diagnosis tef high risk meeting one two differential diagnosis polyhydramnios fetus 2 ground established tef provisional working diagnosis may reasonable await review following next ultrasound 30 week raising possibility tef well difficulty establishing definitive diagnosis parent oral evidence confirming view delay giving information parent 30 week emphasised probable significance possible tof cardiac condition could paraphrase question accumulation 15 polyhydramnios whilst diagnostic individual problem would heighten likelihood obstructive would speak severity problem non obstetrician potential earlier delivery discomfort diagnostically would add greater weight obstruction versus narrowing versus cardiac problem individual opinion 801 13 19 october 2017 e oral evidence well explained dr maclean report page 191 exhibit 2 interpretation cardiac anomaly together sonographic finding context polyhydramnios small stomach possible tof oa identified 30 week gestation becomes nuanced important counselling prospective parent know identified factor directly impact predicted outcome equally important communicate difference direct evidence serious pathology marker increased risk biomarkers sometimes termed soft marker fetal medicine 414 add stage implicit finding breach duty satisfied necessary find breach took account entitlement plaintiff certain damage flowing negligence defendant area mostly dealt damage mentioned defendant submission concerning breach duty purely economic loss 415 defendant referred number english authority concerning breach duty damage case referred ismeadows v khan 2017 ewhc 2990 qb meadow decision justice yip high court england wale honour conducted useful summary relevant english authority 416 inmeadowsa claim made cost raising child born haemophilia autism negligence case failure defendant inform plaintiff child haemophilia known condition would undergone termination pregnancy although negligence admitted honour nevertheless examined authority concerning damage might flow breach duty contested damage awarded cost associated haemophilia disputed entitlement expense related autism 417 one issue identified honour examining authority referred defendant case ofparkinson v st james seacroft university hospital nh trust 2000 qb 266and alsogroom v selby 2001 ewca civ 1522 2002 lloyd rep med 1 whether autism consequence falling within responsibility defendant assumed honour said 61 thrust defendant argument summarised paragraph 38 skeleton argument additional loss associated adejuwon autism fall outside scope duty owed claimant accept already said focus defendant duty purpose service claimant sought provide necessary information allow terminate pregnancy afflicted haemophilia birth adejuwon resulted pregnancy afflicted haemophilia autism bad luck way meningitis ingroomwas bad luck equally condition natural consequence pregnancy would continued doctor duty performed correctly scope duty case extended preventing birth adejuwon consequence brought reason reject submission loss flowing adejuwon autism fell outside defendant assumption responsibility true defendant assume particular responsibility relation autism neither doctor inparkinsonassume particular responsibility learning difficulty doctor ingroomfor meningitis case doctor assume responsibility properly fulfilled would avoided birth child question 418 view defendant assumed responsibility inform plaintiff possibility saba would born tof properly fulfilled would avoided birth saba 419 reached conclusion notwithstanding conversation concerning termination concerned suspected cardiac condition view condition required parent informed also carried inference informed mother might seek termination especially case condition tof even without ultrasound confirmation possibility numerous condition disability existed see exhibit q causation420 causation governed bys 45of thecivil law wrong act 2002 act clw state 45 general principle 1 decision negligence caused particular harm comprises following element negligence necessary condition happening harm factual causation b appropriate scope negligent person liability extend harm caused thescope liability 2 however person theplaintiff negligently exposed similar risk harm number different people thedefendants possible assign responsibility causing harm 1 court may continue apply established common law principle responsibility may assigned defendant causing harm b court must consider position defendant individually state reason bringing defendant within scope liability 3 deciding scope liability court must consider among relevant thing whether responsibility harm imposed negligent party 421 clear authority thats 45 1 like 5d 1 thecivil liability act 2002 nsw cla establishes test also plain onus respect causation always plaintiff section 46of clw state 46 burden proofin deciding liability negligence plaintiff always bear burden proving balance probability fact relevant issue causation 422 agree defendant formulation primary debate concerning causation defendant submitted key issue relation causation whether first plaintiff would obtained termination pregnancy relation twin 2 something different done tch done 423 following primary problem faced plaintiff causation important remember starting point plaintiff case information possible tof given 22 september 2011 date 30 week four day pregnancy termination considered counselling provided travel arrangement made time would short effect everything would needed fall place b plaintiff say duty care owed included obligation refer counselling cannot said effect counselling would pre determined idea termination could well affected consideration explained counselling example likely effect twin danger mother associated termination travel possibility extent saba likely condition known might influenced post natal treatment c likelihood travel occurring seem likely one airline another may issued ticket plaintiff may nevertheless even boarded plane particular medical clearance required dr cole 902 28 said week preparation would necessary travel included possibility second amnioreduction required counselling occurring affecting parent intention logistics travel would need factored notably joint statement exhibit 40 page 2 plaintiff say wife roughly 32 week asked u go sydney said happy go back sydney see cardiologist wife position travel neither car normal passenger plane e plaintiff thought m nouri well enough fly canberra sydney 32 week gestation one wonder could well enough fly america time even week two earlier notably 18 october 2011 m nouri much pain could undergo amnioreduction f parent said would able fund exercise evidence cost practical accommodation requirement limited also know immigration difficulty may arisen mr shaor said would made online application visa known esta evidence american immigration authority point note mr shaor refused entry usa refugee military history however note plaintiff australian citizen may negated history mr shaor relation american border authority g perhaps importantly probability termination would conducted america clear dr hern evidence would performed selective termination simply requested would satisfy appropriate procedure take place especially regard assessment mother condition history think evidence make finding balance probability dr hern abortionist would prepared carry termination h dr hern also said would wanted see definite diagnosis serious condition proceeded qualify evidence suggesting would least needed see relevant documentation point however remains cannot satisfied balance probability dr hern would carried procedure yet impossible know condition m nouri would arrival america plaintiff evidence never rose point described opening either plaintiff telling dr robertson termination would chosen told twin b disability evidence went possibility termination related cardiac condition j stated limitation attach dr sella report k accept plaintiff adamant would sought termination important remember looking back benefit hindsight knowledge disability affected saba 424 think plaintiff surmounted problem m nouri unlikely able travel absent second amnioreduction procedure able complete 18 october 2011 would presented airport obviously pregnant pain could satisfied relevant airline would allowed board satisfied doctor would provided supporting documentation second amnioreduction fit state fly 425 satisfied dr hern like doctor would prepared carry abortion fact dr hern said carried similar procedure mean would performed procedure m nouri state evidence taken say might carried procedure enough establish causation 426 hindsight point also important doubt plaintiff living severely disabled child life livelihood severely affected convinced would found way achieve termination unknown counselling say would effect risk logistics travel america would either beyond viewed risk prepared take doctor agreed m nouri faced substantial risk travelling america 427 follows plaintiff established balance probability could would obtained termination breach duty care outlined accordingly plaintiff must fail liability damages428 decision liability intend deal damage fairly briefly hopefully explaining sum would awarded found favour plaintiff 429 looking individual head damage important remember saba disability product alleged negligence assuming born would disability plaintiff case born financial effect flowing birth met defendant 430 plaintiff say born would able carry working therefore earned money would endured grief anguish associated raising disabled child would expense raising saba even healthy child would certainly cost associated extra need 431 plaintiff claimed damage future whole saba life expectancy 31 year defendant said whatever damage awarded could extend beyond saba reaching 18 year age parent legal obligation support came end 432 defendant submitted plaintiff could receive cost commercial care economic loss going provide care saba therefore would incur cost commercial care commercial care awarded agreed appropriate rate 43 per hour 433 plaintiff claimed 200 000 general damage defendant said award conceded plaintiff suffered psychiatric disorder entitled claim nervous shock 434 view plaintiff entitled damage type claim see basis authority awarding general damage see support incattanach v melchior 2003 hca 38 215 clr 1 cattanach claim similar claim received scrutiny beech jones j inneville v lam 3 2014 nswsc 607 honour said 166 166 discussion level generality cannot advanced partly becausecattanachdid directly address partly also conditioned issue causation remoteness however least various judgment incattanachsuggest part claim non pecuniary loss pitched manner necessarily involves requires assessment relative benefit detriment rearing child cannot entertained 435 plaintiff relied queensland supreme court decision de jersey j inveivers v connolly 1995 2 qd r 326 case honour awarded general damage 50 000 compensate mother severely disabled child award pain suffering loss amenity particular anguish suffered pregnancy birth gravely handicapped child subsequent care child continue view decision longer supported followingcattanach 436 respect claim economic loss commercial care defendant pointed following concession made senior counsel plaintiff 27 august 2018 said mr cranitch degree honour opening exercising mind end day two people providing support one backing going change lifetime particularly point view course damage mr shaor m nouri going change really m moylan say probably relevant context claim damage additional matter would got evidence would pay separate carer pocket intend continue care child mean put equation honour able give honour definitive answer learned friend m moylan 437 final submission plaintiff senior counsel present due ill health junior counsel said case always run basis claim commercial care concession made learned leader withdrawn accept claim commercial care pursued case take account concession apparently made however imply acceptance claim commercial care least total effect claim economic loss also remove plain fact parent likely continue provide least majority care saba 438 basis upon future economic loss could claimed plaintiff would unable work providing care saba accordingly would commercial care expense think caveat apparently simple approach 439 agreed saba required 24 hour care 168 hour per week ndis provides 15 hour care per week mean plaintiff unassisted would providing 153 hour care per week 440 plaintiff working also caring child capacity continue provide 153 hour per week would severely strained view legitimate scope award plaintiff economic loss together amount commercial care could reflected example overnight carer perhaps carer one two day per week 441 view approach compensates plaintiff economic loss also allows degree commercial care allow 14 hour per week commercial care 442 relation general entitlement economic loss satisfied parent entitlement think made clear high court incattanach 443 next point whether economic loss allowed beyond saba 18thbirthday need care certainly end 18thbirthday continue level increased level balance life expectancy child incattanachwas born healthy without disability suggestion loss provided child turned 18 444 observation gleeson cj heydon j incattanachsuggest damage might extended beyond age 18 however judgment minority judge would allowed damage 445 authority clear matter english authority likegaynor n v warrington health authority 2003 lloyd rep med 365which suggest damage could continue long child need care 446 inwaller v james 2013 nswsc 497 first instance hislop j awarded damage would restricted child reached 18 honour conducted comprehensive review authority said 277 277 accepted defendant keeden need care remainder life 278 defendant however contended scope defendant liability identified reference nature harm compensation awarded relevant harm burden raising child case child disability harm plaintiff incur parent legal responsibility care maintain keeden family law act 1975 cth s 60b 61 c 1 66c child support assessment act 1989 cth 3 luton v lessels 2002 hca 13 2002 210 clr 333at 6 accordingly claim limited period time plaintiff legal responsibility care keeden legal obligation plaintiff cease keeden attains majority upon eighteenth birthday 279 incattanachmchugh gummow jj 68 said burden legal moral responsibility arise reason birth child contention kirby j judgment also made reference legal moral responsibility plaintiff contended reference moral responsibility judgment extended responsibility beyond statutory legal obligation plaintiff submitted moral obligation care keeden rest life may however context probable comment referring parent responsibility child age 18 year contention incattanach 280 reference also made decision kirby j incattanachwhere honour said full damage tortfeasor cost rearing child must taken reasonable cost rearing unplanned child age child might expected economically self reliant whether child healthy disabled plaintiff submitted keeden would never position would eye community become economically self reliant commenced receive full pension 281 defendant contended conclusion liability cease upon keeden obtaining majority would impose intelligible limit recoverable damage would keep law negligence within bound common sense practicality cattanachat 32 per gleeson cj dissenting 282 binding authority issue decided incattanachbecause claim limited claim care age 18 authority referred inconsistent mcdonald v sydney south west area health service 2005 nswsc 924at 88 harrison asj held responsibility parent child always cease age 18 may continue tertiary study ing v armellin 2008 actsc 68a claim cost continuing support additional child tertiary education refused court noting part legal responsibility parent support child university many parent 283 united kingdom number first instance decision inrand v east dorset health authority 2000 lloyd rep med 181the parent disabled child awarded damage reflecting cost raising child age 25 inhardman v amin 2001 pnlr 11the damage extended lifespan claimant parent see alsogaynor n v warrington health authority 2003 lloyd rep med 365at 16 284 authority reference made provide little guidance beyond age 18 issue appears open one entitlement beyond 18 year depend upon policy consideration stage development law awarding damage would limit period keeden 18th birthday 447 reluctance come view notwithstanding moral obligation continue motivate parent saba turn 18 entitled damage time decision reinforced fact saba reach 18 legal obligation ndis support doubt extent obviously excellent care receives parent nevertheless entitled support scheme 448 next point quantum economic loss awarded plaintiff claimed weekly sum earning working saudi arabian embassy claim gross figure former wage following difficulty claim awarding damage lost income purpose place plaintiff position would defendant negligence b plaintiff evidence assuming twin born without complication disability would returned sudan mr shaor involved commercial development evidence suggest amount might earned development m nouri would doubt spent time concerned rearing twin idea whether would sought employment sudan c good deal reason doubt mr shaor evidence economic loss generally whether working since birth saba found explanation reason going embassy receipt amount equal wage loan respect work done difficult accept fact accept evidence also note mr shaor obstructive refusal provide supporting evidence claim example refused provide authority addressed australian taxation office ato although apparently change mind also initially agreed provide authority release centrelink document later refused refusal extend document relevant carer pension m nouri needed look healthy twin event unlikely returned full time employment reached school age e relation claim gross wage accept wage plaintiff subject assessment tax ato interpretive decision would suggest contrary example australian taxation office ato interpretative decision 2003 617 15 july 2003 449 doubt plaintiff claim economic loss led conclusion established acceptable basis damage past however satisfied awarded damage future saba reach 18 amount seek difficult come logical conclusion appropriate amount decided ass claim basis average weekly earnings net basis 450 calculation net weekly wage male currently 1 300 per week female 1 079 451 11 year saba reach 18 3 multiplier 490 relatively short period time apply deduction vicissitude 10 calculation mr shaor 1 300 x 490 x 9 573 300 calculation m nouri 1 079 x 490 x 9 475 839 452 although party address point see plaintiff entitled lost superannuation benefit economic loss ass lost benefit 13 453 said think plaintiff joint partial claim care 14 hour per week 43 per hour calculation 43 x 14 hour x 490 294 980 454 effectively suggested mr shaor fund paid ndis saba account inappropriately used wife rejected assertion saying monies reimbursement expense wife paid therefore free withdraw equivalent account 455 next claim plaintiff past pocket expense 186 300 defendant suggested 20 000 plaintiff claim based mr shaor oral evidence paying 3 000 per month ndis started pay medical expense november 2016 thereafter claim 300 per month 456 almost impossible ass claim lack documentary evidence however guidance taken exhibit 45 assuming core support amount 72 297 80 includes care 43 per hour 15 hour per week balance 38 757 80 52 week equal 745 per week roughly equivalent 3 000 per month claimed include amount damage would awarded together 300 per week november 2016 word accept plaintiff claim 186 300 457 future would continued claim 300 per week next 11 year 3 table 300 x 490 147 000 458 table summary damage would awarded future economic loss m nouri 475 839lost superannuation benefit m nouri 61 859future economic loss mr shaor 573 300lost superannuation benefit mr shaor 74 529commercial care plaintiff 294 980past pocket expense 186 300future pocket expense 147 000total 1 813 807459 make following order judgment defendant b plaintiff pay defendant cost proceeding 460 hear party cost order sought note outstanding issue certain cost paid personally plaintiff solicitor certify preceding four hundred sixty 460 numbered paragraph true copy reason judgment honour justice elkaim associate date |
Construction, Forestry, Mining and Energy Union re Austfloor Pty Ltd t_a Harvey Norman Commercial Flooring and CFMEU (FFTS Branch) Enterprise Bargaining Agreement 2011 [2011] FWAA 6198 (9 September 2011).txt | construction forestry mining energy union austfloor pty ltd harvey norman commercial flooring cfmeu ffts branch enterprise bargaining agreement 2011 2011 fwaa 6198 9 september 2011 fair work australiadecisionfair work act 2009s 185 enterprise agreementconstruction forestry mining energy union ag2011 2197 austfloor pty ltd harvey norman commercial flooring cfmeu ffts branch enterprise bargaining agreement 2011building metal civil construction industriescommissioner blairmelbourne 9 september 2011application approval austfloor pty ltd harvey norman commercial flooring cfmeu ffts branch enterprise bargaining agreement 2011 1 application made approval enterprise agreement known theaustfloor pty ltd harvey norman commercial flooring cfmeu ffts branch enterprise bargaining agreement 2011 agreement application made pursuant tos 185of thefair work act 2009 act made construction forestry mining energy union cfmeu agreement single enterprise agreement 2 satisfied requirement ofss 186 187and188of act relevant application approval met 3 cfmeu bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 act note agreement cover organisation 4 agreement approved accordance withs 54of act operate 16 september 2011 nominal expiry date agreement 1 february 2012 commissionerprinted authority commonwealth government printer price code g ae888216 pr514441 |
DPP v Webb [2012] VCC 1818 (12 November 2012).txt | dpp v webb 2012 vcc 1818 12 november 2012 last updated 21 december 2012in county court victoriarevisednot restrictedsuitable publicationat melbournecriminal divisioncase cr 11 01925director public prosecutionsvtyrone webb judge honour judge maidmentwhere held melbournedate hearing 12 november 2012date sentence 12 november 2012case may cited dpp v webb tyronemedium neutral citation 2012 vcc 1818reasons sentence subject catchword legislation cited case cited sentence appearance counselsolicitorsfor dppms j l piggottoffice public prosecutionsfor accusedms f e holmeshis honour 1 tyrone webb pleaded guilty one offence affray two related summary offence failing appear answer bail serious offence carry term imprisonment maximum term imprisonment affray five year imprisonment failing answer bail 12 month imprisonment 2 going repeat summary prosecution opening exhibit incorporate document reason sentence 3 affray ugly affair serious offence court required mark seriousness sort offending generally term imprisonment come sentence within month two three event occurred likelihood would received immediate term imprisonment seems though relevant case take account occurred since event little two year ago 4 impressed fact presented behalf counsel evidence given m taggart bad record particularly driving offence ignore offence violence unimpressive criminal record 5 25 year age seems showing sign maturing inclined accept evidence ofms taggart genuinely effectively turned new leaf note come family none sibling got trouble police accept conscious need set example ensure stay trouble future 6 think much credit good work record seems good job good income able provide m taggart child 7 think deserve significant credit plea guilty accept indicates remorse behalf accept deserve significant credit saving court time would recognised reasonable possibility might acquitted charge fought matter nevertheless faced responsibility pleaded guilty say saved court victorian public expense trial 8 matter suggest said behalf substance reasonable prospect putting behind staying trouble future hope true recognise always easy group friend law abiding put one side change life seems set largely successful think need encouragement court maintain process 9 ordinarily say would regarded term immediate imprisonment obligatory case participated affray nature change life change attitude suggests reasonable investment future inclined accede counsel submission sentence require immediate incarceration open 10 conscious need pas sentence capacity deter others general deterrence clearly important sentencing consideration think need deter le significant heard evidence submitted behalf think circumstance open suspend term imprisonment intend impose upon 11 would imposed sentence two month seems one come conclusion term imprisonment necessary offending kind two month unduly light however conscious fact co offender apparent instigator affray received sentence two month imprisonment magistrate court dealt time seems quite likely would received similar sentence although ringleader seriously injured result therefore would reduction sentence apparently effected relation mr masson 12 circumstance prepared impose term imprisonment suspend sentence notice mr masson also two offence failing answer bail although ordinarily would given sentence addition appropriate affray think necessary impose sentence par imposed upon mr masson 13 would stand please 14 offence affray sentence two month imprisonment two offence failing appear answer bail sentence one month imprisonment convict relation three offence order total effective sentence two month imprisonment suspended period oftwo year 15 mean hanging head period time commit offence punishable imprisonment two year period starting today serve thetwo month sentence imposed however commit offence punishably imprisonment period almost certainly required serve whole two month sentence well sentence imposed offence put breach suspended sentence order 16 plea guilty would sentenced total effective sentence four month imprisonment think unlikely would suspended sentence 17 m piggott honour plea 18 m holmes one matter section 6aaa thesentencing act note honour said would mr webb plea guilty 19 honour yes four month 20 m holmes would imposed sentence two month honour able state much honour would imposed 21 honour yes four month 22 m holmes sorry 23 honour four month declared 24 m holmes sorry 25 honour right 26 m holmes talking instructor giving 27 honour four month would suspended 28 m holmes thank 29 honour right way foot declaring 30 m holmes thank honour 31 honour right pre sentence detention take account 32 m holmes honour 33 honour order need make 34 m piggott order honour 35 honour right suspended sentence order drawn client may leave dock 36 m holmes thank honour 37 honour nicely possible mr webb hope see 38 offender hope see honour thank |
Australian Education Union-ACT Branch [2013] FWCD 7429 (26 September 2013).txt | australian education union act branch 2013 fwcd 7429 26 september 2013 2013 fwcd 7429fair work commissiondecisionfair work registered organisation act 2009s 159 alteration rule organisationaustralian education union r2013 264 mr enrightmelbourne 26 september 2013alteration rule organisation 1 12 june 2013 act branch australian education union branch lodged fair work commission notice declaration setting particular alteration rule australian education union 2 particular provide alteration act federal branch rule 31 34 alteration made purpose complying provision thefair work registered organisation amendment act 2012 amendment act regarding rule registered organisation particular alteration provide specified disclosure implementation policy relating expenditure mandatory training officer duty relate financial management organisation 3 information contained notice satisfied alteration made rule organisation 4 3 july 2013 fair work commission regulatory compliance branch wrote branch relation alteration correspondence requested submission whether act tafe division branch branch organisation noted act tafe division branch act branch rule notified sufficiently cover disclosure requirement act tafe division branch need make alteration provide disclosure 5 branch provided written response 3 september 2013 submitted aeu act tafe division branch structure aeu act branch incorporates tafe member within single branch separate administrative financial decision making process referring number act federal branch rule view supported submission also noted practice tafe council make recommendation branch executive may may accepted body addition rule 51 e state branch tafe council shall power office defined section 9 fw ro act 2009 6 accept submission regard submission act federal branch rule rule organisation whole consider act tafe division branch result alteration pertaining act tafe division necessitated amendment act 7 amendment act1provides alteration rule organisation purpose making provision required amendment act certified general manager transition period commenced 29 june 2012 alteration rule certified transition period however take effect date certification commencement part 2 schedule 1 amendment act whichever occurs later part 2 schedule 1 amendment act commences 1 january 2014 2 8 opinion alteration comply contrary thefair work registered organisation act 2009 ro act amendment act thefair work act 2009 modern award enterprise agreement otherwise contrary law certify accordingly subsection 159 1 ro act modified item 38 schedule 1 amendment act delegate general manager1see item 38 schedule 1 amendment act 2see section 2 amendment act printed authority commonwealth government printer price code pr542476 |
Singarayar, Suganthi --- "Book Review - Songlines" [1989] AboriginalLawB 12; (1989) 1(36) Aboriginal Law Bulletin 19.txt | singarayar suganthi book review songlines 1989 aboriginallawb 12 1989 1 36 aboriginal law bulletin 19book review songlinesobituary bruce chatwinbook review songlinesby bruce chatwinvintage 1989 293 ppreviewed suganthi singarayarbruce chatwin came australia find aboriginal songlines idea interested long period time process wrote book australia land people black white tried answer question question nature human restlessness songline aboriginal concept dreamtime ancestor walked land singing left behind dreaming track songline every aborigine owns part dreaming track totemic ancestor duty ensure song remembered sung country stay existence using song move across safety without losing way language along line may change melody remains acting map guide concept aboriginal songlines creates amount legal minefield aboriginal idea territory block land hemmed frontier rather interlocking network line way aboriginal belief aborigine meant one land cannot sell posse keeper land land regain way songline sacred site songline today must land western sense ownership property one line land one justify comprehend ownership block land belongs one everyone australia viewed standpoint songline sacred site one sort western legal ramification concept one reconcile two different cultural concept ownership land bruce chatwin also writes people inhabit land aborigine live white station pub white work aborigine white happen live land without intentionally bruce chatwin contrast 40 000 year aboriginal culture 200 year white settlement attitude outback white aborigine often demeaning degrading respect aboriginal people culture many northern territory racism way life elsewhere australia article roberta sykes thegood weekend17 9 88 said belief australia still appallingly racist country spin story story prove pryor boy suicided daily evidence uncovered muirhead inquiry townsville thing changed much reading songlines said alice spring katherine bruce chatwin need spin story story includes intended shock rather illustrate journey australia bottled authentic northern territory gin piss burnt flat hotel policeman hotel glenn ormond knew aborigine different different urinary tract white man concept aborigine different may account part way continue treated white school teacher popanji said awesome power apparently passive people would sit watch wait manipulate white man guilt strange statement almost universal reaction white man fact conquering people culture seemingly conquered yet managed elude comprehension african indian chinese seeming passivity mask almost supernatural force black magic used manipulate white man difference colour skin black brown yellow weight white man guilt post colonial time almost heavy white man burden colonial time white treatment aborigine reaction fear guilt live closest aborigine land feel like interloper therefore treat aborigine bruce chatwin write stagnant culture somewhere past many aborigine foot world like people everywhere faction infighting survived 40 000 year land many white still find inhospitable 200 year mr chatwin writesof culture firmly set present firmly brought home sound plane flying alice dead night way american base pine gap aborigine red centre much closer centre world stage average city dweller television set daily news bulletin setting songlines take greater significance part world nasa nato arm race important right belief many world indigenous culture australia aborigine form small backdrop greater wider quest nature restlessness bruce chatwin take u africa europe beginning time present search answer eventually songlines becomes story search journey many year different land people leaf u question beginning thinking future planet also leaf u deep respect human everywhere obituarybruce chatwinbruce chatwin died january 17 1989 rare debilitating bone marrow disease contracted trip western china early 1980s wanderlust taken remote corner world including part australian outback researched gathered story last novel songlines published amongst international acclaim |
Ge, Feng Ying [2000] MRTA 4178 (17 July 2002).txt | ge feng ying 2000 mrta 4178 17 july 2002 last updated 24 january 2003 2002 mrta 4178catchwords partner provisional class uf visa subclass 309 spouse genuine relationshipreview applicant feng ying gevisa applicant qian jun lutribunal migration review tribunalpresiding member lindsay fordmrt file number v01 01937dept file number osf2000 136589date decision 17 july 2002at melbournedecision tribunal remit application department immigration multicultural indigenous affair reconsideration direction visa applicant meet requirement regulation 309 211 grant partner provisional class uf visa subclass 309 statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural affair delegate refuse grant partner provisional class uf visa 12 april 2000 qian jun lu visa applicant male national people republic china prc born 4 december 1954 applied partner provisional class uf visa t2 f 203 205 212 220 delegate decision refuse grant visa made 5 january 2001 t2 f 298 304 jurisdiction standing2 feng ying ge review applicant spouse visa applicant lodged valid application review tribunal 11 april 2001 t1 f 1 10 decision reviewable tribunal application review properly made person standing apply review legislation policy3 themigration act 1958 act various regulation made 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 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 relevant review legislation migration regulation 1994 regulation 1 15aand schedule 2 part 309policy procedure advice manual 3 regulation 1 15a interpretation spousecases minister immigration local government ethnic affair v dhillon federal court 8 may 1990 unreported r v cahill 1978 2 nswlr 453minister immigration multicultural affair v asif 2000 fca 228 7 march 2000nassouh v minister immigration multicultural affair 2000 fca 788bretag v minister immigration local government ethnic affair unreported federal court loughlin j 29 november 1991 minister immigration multicultural affair v pochi 1980 fca 85 1980 4 ald 139epeabaka v minister immigration multicultural affair 1997 150 alr 3976 tribunal generally regard regulation stood time visa application subsequent amendment may apply circumstance evidence7 hearing conducted 17 june 2002 tribunal received oral evidence review applicant friend wei ling zheng georgey yang victoria sottila giuseppe sottila tribunal also regard document department file document file material submitted behalf visa applicant tribunal following document available review t1 mrt case file v01 01937 folio numbered 1 376 t2 mrt case file v01 01937 folio numbered 203 3478 tribunal department file misplaced second mrt case file case dump note department party representative m veronica fu law partner solicitor also provided information received department relation foi request photocopy department file full comprises folio 1 120 9 visa applicant sponsored visa feng ying ge review applicant australian citizen since 17 february 1997 born prc 2 october 1954 t1 f 42 44 10 party previously married 8 may 1980 t2 f 301 first marriage ended divorce 23 june 1993 t2 f 230 one child marriage lu yi jing born 7 february 1981 t1 f 93 t2 f 300 11 review applicant also previously married joseph muscat 8 august 1994 marriage ending divorce 16 september 1996 t2 f 211 child marriage 12 review applicant submitted delegate statement stated met joseph muscat july 1990 australia fell love said april 1993 returned china settle divorce visa applicant june 1994 returned australia married joseph muscat due domestic problem divorced t2 f 259 260 delegate found review applicant granted 030 bridging visa 1 september 1994 granted spouse subclass 801 visa 12 september 1994 t2 f 301 delegate also found august 1995 lodged application sponsor visa applicant daughter application approved 4 october 1995 t2 f 300 1 delegate also found visa applicant lodged several business visitor visa application australia t2 f 300 two business visa application may june 1997 refused one visitor visa application 1997 refused two visitor visa application april september 1998 refused one visitor visa application july 2000 approved t2 f 300 13 statement tribunal visa applicant submits party initially divorced 1993 lot difference misunderstanding review applicant went australia 1990 developed feeling another person joseph muscat main reason divorce t1 f 92 submits year heard bit piece review applicant life australia daughter first contacted relation matter concerning daughter t1 f 92 visa applicant submits since daughter went live mother australia 1996 encouraging party talk make difference 1999 daughter review applicant china party met talked rebuilding family t1 f 90 party remarried china 12 january 2000 t2 f 226 evidence provided support includes marriage certificate t2 f 226 review applicant submits tribunal realised wrong thing done try change forget past really love love marriage genuine continues t1 f 89 14 delegate interviewed visa applicant 14 december 2000 t2 f 291 297 said review applicant daughter went back china nearly every year daughter always told review applicant hard time australia t2 f 296 stated speak except spoke child first spoke january 1999 daughter asked wanted see review applicant agreed t2 f 293 asked decided establish relationship said sake child reason t2 f 296 asked review applicant marriage joseph muscat ended said never spoken t2 f 294 delegate found visa applicant depth knowledge review applicant personal circumstance australia limited t2 f 299 15 delegate stated visa granted basis relationship party exhibit factor genuine continuing relationship within meaning set inregulation 1 15aand visa applicant meet requirement regulation 309 211 309 221 t2 f 298 criterion dispute 16 review applicant stated lodging application review party believe satisfy legal requirement delegate give sufficient weight evidence provided apply correct test deciding genuine nature relationship t1 f 6 17 following material submitted tribunal telephone account review applicant named dated august 2000 december 2000 t1 f 11 23 telephone card t1 f 24 190 192 transfer land form dated 24 february 2001 t1 f 25 certificate title dated 27 december 2000 t1 f 26 letter visa applicant review applicant postmarked march 2001 t1 f 27 29 money transfer receipt 2500 00 review applicant visa applicant dated 20 march 2001 t1 f 30 untranslated receipt t1 f 31 32 currency exchange receipt u 3000 00 dated 25 november 2000 t1 f 33 currency exchange receipt u 3200 00 dated 4 july 2000 t1 f 35 currency exchange receipt u 2000 00 dated 25 september 2000 t1 f 35 statutory declaration review applicant t1 f 45 46 statutory declaration friend family t1 f 49 65 67 70 77 78 81 84 85 photograph t1 f 66 71 79 98 110 142 146 statement visa applicant t1 f 89 92 certificate joint house china dated 13 march 2001 t1 f 94 declaration dated march 2001 visa applicant share 50 two company wife t1 f 96 certificate title dated 15 may 2001 t1 f 147 mail t1 f 148 150 179 81 untranslated chinese document t1 f 151 153 airline ticket dated 13 june 2001 t1 f 154 submission party representative t1 f 162 174 chinese foreign currency deposit receipt t1 f 178 sightseeing ticket t1 f 182 untranslated registration temporary address t1 f 183 chinese telephone account t1 f 184 189 191 telephone account review applicant name may 2001 september 2001 t1 f 193 200 18 information submitted includes statement review applicant t2 f 256 257 statement visa applicant t2 f 261 267 statement support party relationship t2 f 275 276 telephone account july 2000 june 2000 october 1999 december 1999 august 1999 t2 f 277 282 chinese telephone account t2 f 283 289 324 333 photograph t2 f 290 19 hearing review applicant reiterated material already provided document referred decision confirmed two marriage broken came reunited visa applicant said visa applicant ran business shanghai sent money sent money money forwarded whenever one short cash said reason put name title house visited australia last year paid remaining 20 000 outstanding mortgage spoken future propose shut shanghai business establish business allowed migrate said visited regularly last visit limited time available due work would like celebrate daughter 21stbirthday daughter unable attend hearing university exam however provided written statement confirmed mother said evidence witness said known review applicant personally several year believed marriage genuine findings20 time visa application lodged partner provisional class uf contained subclass 309 partner visa subclass 310 interdependency provisional visa subclass respect claim advanced subclass 309 evidence suggest visa applicant meet criterion subclass 310 visa21 time application visa applicant sponsored review applicant australian citizen therefore meet sponsorship requirement visa 22 visa applicant sponsor remarried china 12 january 2000 t2 f 226 time application visa applicant sponsor married marriage recognised valid purpose act time decision still married 23 grant visa conditional visa applicant meeting definition spouse core criterion visa defined inregulation 1 15a provides tribunal must satisfied party amutual commitment shared life husband wife exclusion others regulation 1 15a 1 b thatthe relationship genuine continuing regulation 1 5a 1 b ii thatthey live separately apart permanent basis regulation 1 15a 1 c ii context decision full federal court indhillon caseis relevant comment test genuine marriage adopting word street c j incahill caseat page 458 correct test party mutual commitment shared life husband wife exclusion others proper course therefore follow regulation apply fact excluding speculation notion idealised marriage consideration 24 determining question arising underregulation 1 15a 1 class visa tribunal required byregulation 1 15a 3 consider list factor indicator married relationship asif case applied date application nassouh case conduct pertinent indicator relevant time decision requirement visa tend logically show existence non existence claim made time application seebretag casewhere loughlin j quoted frompochi caseon point see page 160 25 regard factor considered pertinent necessarily exclusive spousal relationship set inregulation 1 15a 3 evidence issue discussed following headingsthe financial aspect relationshipthere substantial evidence party combined affair share asset liability extent unusual couple living different country sent one another gift whenever one needed money visa applicant paid review applicant mortgage leading putting name title nature householdthe review applicant gone back china husband several time marriage conceded earlier trip benefit daughter however later trip party marry together evidence went sightseeing visited relative friend social aspect relationshipphotographs statement party friend well evidence witness hearing evidence social aspect party relationship present photograph friend family statement evidence friend attest party relationship marriage nature person commitment otherthe party submit regular contact telephone call letter telephone account australian chinese telephone card show regular contact marriage earlier call daughter chinese household registration detail record party living together however registration longer enforced vigorously prc previous year 26 evidence elicited underregulation 1 15a 3 point genuine marriage however must counterbalanced matter point amongst factor delegate found visa applicant knew little review applicant previous marriage mr muscat explicable fact party communicated serious manner daughter urged reconcile well marriage ended b suspicion would inevitably arise party divorced spouse overseas migrated australia marry divorced australian spouse two year reconcile earlier spouse seek sponsor australia commonly seen spouse case however generally involve australian marriage breaking soon 2 year provisional period migrant spouse becomes eligible become sponsor case however 2 year provisional period visa applicant marriage mr muscat sponsored subclass 300 visa 2 year provisional requirement whilst suspicion may sound basis close examination application mere speculation evidence probative weight evidence seeepeabaka caseat page 406 c visa applicant clearly shown intention migrate australia previous visa application raising query whether remarriage genuine doubt visa applicant intends business australia however intention clearly involve sponsor well added fact evidence point genuine relationship envisaged byregulation 1 15a whilst amutual commitment shared life husband wife exclusion othersis central criterion visa fact applicant also additional motive mind necessarily fatal application unless sole dominant reason application dhillon case 27 balance tribunal find evidence support marriage meeting requirement ofregulation 1 15aoutweighs evidence accordingly tribunal find visa applicant meet requirement regulation 309 211 28 visa applicant represented m veronica fuconclusion29 visa applicant meet requirement criterion dispute grant visa subject review remaining criterion including time decision criterion matter department decision30 tribunal remit application department immigration multicultural indigenous affair reconsideration direction visa applicant meet requirement regulation 309 211 grant partner provisional class uf visa subclass 309 |
Indigo Blue Beachside Residences [2006] QBCCMCmr 99 (1 March 2006).txt | indigo blue beachside residence 2006 qbccmcmr 99 1 march 2006 last updated 19 july 2006reference 0800 2005order adjudicatormade part 9 chapter 6body corporate community management act 1997number scheme 30961name scheme indigo blue beachside residencesaddress scheme 186 esplanade burleigh head qld 4220take notice pursuant application made abovementioned act byedward eadeh owner lot 41i hereby declarethat resolution passed heading 3 3 meeting committee body corporate indigo blue beachside residence 15 october 2005 invalid basis issue restricted issue could determined general meeting statement adjudicator reason decision ref 0800 2005 indigo blue beachside residence ct 30961applicationindigo blue beachside residence community title scheme indigo blue 44 lot scheme thebody corporate community management act act act saccommodation module regulation accommodation module module commonly adopted scheme designed holiday letting body corporate indigo blue engaged caretaker letting agent undertake certain responsibility concerning scheme application edward eadeh owner lot 41 applicant seeking order body corporate indigo blue respondent dispute concern number committee resolution particular resolution relate agreement body corporate caretaker applicant seek resolution declared invalid submissionsthe applicant provided submission effect agreed amend caretaking agreement clarify caretaker must take rubbish street part normal duty without additional payment however committee subsequently resolved change minute say duty addition duty agreement motion heat pool defeated last annual general meeting caretaker claim body corporate required provide facility enhance rental pool heated committee called quotation established interpretation caretaking agreement favour caretaker committee irresponsible deciding recover 1395 overcharged building manager interpreting caretaking agreement favour caretaker relation claim caretaker essential body corporate get independent legal assessment caretaker claim submission behalf body corporate effect matter fully debated length committee member attendee present one motion put forward clarify requirement caretaker take rubbish never resolution vary agreement body corporate pool heating motion previous annual general meeting ruled order motion relating levy defeated therefore funding available subsequently survey indicates owner wanted pool heating put owner general meeting always intention committee recommend variation caretaking agreement general meeting clear certain matter complained construed variation example reimbursement caretaker cleaning water feature valid included caretaking duty also body corporate reimburse caretaker security monitoring body corporate us caretaker equipment purpose body corporate subsequently provided correspondence caretaker stating caretaker reimbursed amount 1395 avoid unnecessary complication even though amount genuine claim receipt forwarded body corporate concerning amount paid caretaker contractor carried work scheme correspondence also includes statement effect caretaker requested agree amendment caretaking agreement insert set amount various service would necessitate variation agreement possibly yearly basis decision1 motion correct minutesthere dispute party whether resolution passed rubbish removal manager clarify caretaking duty addition caretaking duty special requirement necessary body corporate amend caretaking contract committee agreed amendment caretaker term effect amendment need distributed owner allow owner vote proposed amendment accommodation module 85 instance applicant provided sufficient evidence satisfy initial meeting agreed resolution would clarify rather add something addition present duty event question appear real bearing affair body corporate minute annual general meeting 10 february 2006 indicate owner voted amend caretaking agreement regarding collection removal garbage bin 2 motion get quotation pool heatingthe applicant substantiated claim effect caretaker required pool heating right owner choose whether heat pool compromised minute annual general meeting 10 february 2006 indicated owner voted pool heater installed minute indicate australian energy preferred contactor presumably money available budget pay installation owner selected quotation specified actual cost however information apparent minute meeting provided case resolution may necessary specify amount authorised spent heater raise special levy pay cost 3 motion regarding payment reimbursement caretakerother motion committee meeting resolved caretaker would asked reimburse 1 395 caretaker reimbursed specified amount activity said included caretaking agreement caretaker since reimbursed 1 395 various resolution heading 3 3 minute propose caretaker paid additional amount specific service resolution appear invalid additional service would amount either amendment caretaking contract new engagement service contractor either matter require resolution owner general meeting accommodation module 85 initially submitted matter considered item 3 3 committee meeting would considered subsequent general meeting occur resolution passed item 3 3 committee meeting appear purport change right privilege obligation owner otherwise deal matter required dealt ordinary resolution owner general meeting therefore declare resolution invalid basis restricted issue committee could determined general meeting accommodation module 24 orderfor reason make order |
Nassif, Youssef [2000] MRTA 2804 (11 September 2000).txt | nassif youssef 2000 mrta 2804 11 september 2000 last updated 25 september 2000 2000 mrta 2804catchwords review visa refusal subclass 457 business sponsorship approved visa applicant youssef nassiftribunal migration review tribunalpresiding member maritsa eftimioumrt file number n97 01906dima file number 96 598643date decision 11 september 2000at sydneydecision tribunal affirms decision review finding visa applicant entitled grant temporary business entry class uc visa application review1 application review decision made delegate minister immigration multicultural affair delegate mr youssef nassif visa applicant national lebanon born 13 december 1966 applied temporary business entry class uc visa 11 september 1996 delegate decision refuse grant visa made 29 may 1997 delegate decision affirmed review officer 20 october 1997 jurisdiction standing2 visa applicant lodged application review immigration review tribunal 17 november 1997 became application review migration review tribunal 1 june 1999 way transitional provision themigration legislation amendment act 1 1998 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 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 criterion policy immediately relevant review legislation regulation 1 20a 1 20d regulationsitem 1223a schedule 1 regulationspart 457of schedule 2 regulationsdirections nilpolicy nilcases nil6 tribunal generally regard regulation regulation stood time visa application however subsequent amendment may apply circumstance evidence7 tribunal following document t1 mrt case file n97 01906 folio numbered 1 85 t2 mrt case file n99 05723d1 dima file 96 598643 folio numbered 1 86 8 visa applicant entered australia visitor visa 12 september 1995 4 march 1996 granted long stay visitor visa valid 12 september 1996 11 september 1996 applied class uc subclass 457 visa pastry cook sponsored mont blanc french patisserie since visa applicant held bridging visa granted basis application visa subject review 9 delegate stated visa granted basis proposed employer approved business sponsor 10 1 march 1999 immigration review tribunal held hearing matter evidence given visa applicant mr nassif owner mont blanc french patisserie sponsor matter visa applicant advised tribunal could meet requirement visa without approved sponsorship nomination findings11 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 12 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 13 visa application made basis visa applicant would employed mont blanc french patisserie pastry cook 14 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 however application approval business sponsor made mont blanc french patisserie refused delegate 29 may 1997 15 tribunal made separate decision relation application review decision approve proposed employer business sponsor see mrt case number n99 05723 decision affirm decision approve employer business sponsor decision made 26 june 2000 16 visa applicant sent letter 28 june 2000 inviting visa applicant provide comment information tribunal considered would reason part reason affirming decision review particular decision made tribunal 26 june 2000 refuse business sponsorship application lodged mont blanc french patisserie without approved business sponsorship visa criterion cannot met visa applicant failed provide comment response information within prescribed time 17 unless approved business sponsorship visa applicant cannot meet paragraph 457 223 4 c paragraph 457 223 5 c visa applicant cannot meet criterion necessary consider criterion set subclause 457 223 4 5 18 visa applicant proposed employed business activity pastry cook proposed employer mont blanc french patisserie mont blanc french patisserie subject business sponsorship application refused 26 june 2000 evidence tribunal proposed activity subject approved business sponsorship accordingly tribunal find visa applicant entitled grant subclass 457 temporary business entry visa conclusion19 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 decision20 tribunal affirms decision review finding visa applicant entitled grant temporary business entry class uc visa |
SZJYF v Minister for Immigration & Anor [2007] FMCA 627 (26 April 2007).txt | szjyf v minister immigration anor 2007 fmca 627 26 april 2007 last updated 3 may 2007federal magistrate court australiaszjyf v minister immigration anor 2007 fmca 627migration review refugee review tribunal decision refusal protection visa interlocutory dismissal show cause application arguable case federal magistrate court rule 2001 cth migration act 1958 cth 425applicant szjyffirst respondent minister immigration citizenshipsecond respondent refugee review tribunalfile number syg3914 2006judgment driver fmhearing date 26 april 2007delivered sydneydelivered 26 april 2007representationthe applicant appeared personsolicitors respondent m g broderickclayton utzinterlocutory order 1 application dismissed pursuant torule 44 12 1 thefederal magistrate court rule 2001 cth 2 applicant pay first respondent cost disbursement incidental application sum 2 500 accordance withrule 44 15 1 item 1 b ofpart 2of schedule 1 thefederal magistrate court rule 2001 cth federal magistratescourt australia atsydneysyg3914 2006szjyfapplicantandminister immigration citizenshipfirst respondentrefugee review tribunalsecond respondentreasons judgment revised transcript 1 application review decision refugee review tribunal tribunal decision signed 6 november 2006 handed 23 november 2006 tribunal affirmed decision delegate minister grant applicant protection visa applicant china made claim persecution reason christian faith claimed detained labour camp china religion 2 tribunal accepted applicant become christian china accept active christian china tribunal rejected documentary evidence presented applicant intended corroborate claim detention china court book page 99 tribunal also placed emphasis fact applicant able depart china without effort authority stop 3 tribunal accept applicant active christian religious activity particularly kind involves distributing christian material unacceptable chinese government tribunal accept applicant would wish active christian religious activity future otherwise engage anti government political activity foreseeable future 4 proceeding began show cause application filed 19 december 2006 application applicant asserted actual notification tribunal decision 27 november 2006 find show cause application filed within time gave direction matter 12 february 2007 bench sheet show applicant appear occasion although applicant reminded today arrived completed order file note deputy associate confirms circumstance 5 listed matter hearing pursuant torule 44 12of thefederal magistrate court rule 2001 cth thefederal magistrate court rule today also gave applicant opportunity file additional material applicant done prior today although told bar table instructed migration agent m qian filed court today leave statement reiterates protection visa claim 6 received court book evidence material tribunal process also received affidavit john douglas morgan sheehy made 4 april 2007 filed following day affidavit annex transcript tribunal hearing held 3 october 2006 applicant denied receipt copy document exhibit r1 r2 established satisfaction mr sheehy affidavit court book served applicant nominated address service post address service nominated post office box number applicant said belongs migration agent 7 applicant told bar table agent denied document relation matter despite repeated request note neither letter applicant returned think likely circumstance court book affidavit mr sheehy reached applicant migration agent remained 8 also applicant affidavit filed support application 19 december 2006 affidavit applicant repeat claim persecution china 9 ground review show cause application meaningless absence particular two ground simply bald allegation jurisdictional error procedural unfairness gave applicant opportunity explain ground review oral submission effect submission understand assertion tribunal breached obligation unders 425of themigration act 1958 cth invite applicant hearing doubt applicant invited hearing attended however applicant asserts hearing real opportunity present claim orally 10 explored strength assertion applicant reference transcript asserted interrupted sought give comprehensive answer transcript support assertion transcript also fails disclose expression concern applicant hearing procedure note page 18 transcript applicant invited submit evidence support contention detained labour camp china document appears page 79 court book english translation page 80 tribunal dealt document reason page 99 court book tribunal said applicant claimed arrested imprisoned two year 2003 2005 without formal legal procedure however also said document evidence gaol said left china scared carry left asked document referring said confused whether arrest warrant release certificate said passed solicitor migration agent know still existed could still hand agent tribunal note applicant also told delegate documentary evidence detention produce asked hearing applicant sent tribunal document purporting evidence applicant sent labour reform centre two year document poor photocopy said applicant obtained friend wife china refused give applicant name friend contact detail tribunal accept authentic document showing applicant spent time gaol 11 assuming document document appearing page 79 court book agree presiding member opinion document poor photocopy nevertheless regard tribunal dissatisfaction applicant oral evidence tribunal hearing view open tribunal reject document inauthentic 12 tribunal also appeared rely upon applicant passport finding applicant able leave china name pointed m broderick minister tribunal decision silent upon passport information came neither passport detail reproduced court book m broderick referred page 9 transcript invited infer said passport applicant presented passport tribunal hearing agree open draw inference 13 find applicant failed demonstrate arguable case jurisdictional error tribunal decision accordingly dismiss application pursuant torule 44 12 1 thefederal magistrate court rule 14 application dismissed cost follow event minister seek scale cost 2 500 applicant expressed concern received advice panel advice scheme correspondence file discloses panel adviser mr michael mcauley selected advised applicant contact detail applicant also advised mr mcauley contact detail letter registry dated 15 february 2007 letter directed applicant residential address applicant denies receipt letter 15 note 15 february 2007 registry informed minister department mr mcauley appointment m broderick tell mr mcauley provided copy court book applicant claim receive advice scheme appears fault either mr mcauley either case see issue reason court refrain making cost order 16 order applicant pay first respondent cost disbursement incidental application sum 2 500 accordance withrule 44 15 1 item 1 b ofpart 2of schedule 1 thefederal magistrate court rule certify preceding sixteen 16 paragraph true copy reason judgment driver fmassociate date 1 may 2007 |
ASIC v Sigalla (No. 5) [2012] NSWSC 82 (28 February 2012).txt | asic v sigalla 5 2012 nswsc 82 28 february 2012 last updated 19 march 2012supreme courtnew south walescase title asic v sigalla 5 medium neutral citation 2012 nswsc 82hearing date 5 may 2011 1 june 2011 written submission 15 16 june 2011decision date 28 february 2012jurisdiction equity divisionbefore white jdecision refer para 86 judgment catchword contempt court sentencing finding fact relevant defendant motif breaching court order sentencing consideration addressed community service orderedlegislation cited civil procedure act 2005crimes sentencing procedure act 1999australian security investment commission act 2001 cth crime sentencing procedure act 1999corporations act 2001 cth case cited asic v sigalla 4 2011 nswsc 62circuit finance australia limited v sobbi 2010 nswsc 912r v bottin 2005 nswcca 254curtis v r 2007 nswcca 11r v hamieh 2010 nswcca 189asic v sigalla 3 2010 nswsc 1076asic v sigalla 2 2010 nswsc 792wood v staunton 5 1996 86 crim r 183pearce v r 1998 hca 57 1998 194 clr 610tz limited v zms pty limited 2009 nswsc 1465sigalla v tz limited 2011 nswca 334registrar court appeal v maniam 2 1992 26 nswlr 309ncr australia pty ltd v credit connection pty ltd 2005 nswsc 1118vaysman v decker outdoor corporation inc 2011 fcafc 17tz limited v zms investment pty limited 2009 nswsc 1465mill v r 1988 hca 70 1988 166 clr 59bydand holding pty ltd v pineland property holding pty ltd or 2009 nswsc 959asic v sigalla 6 2012 nswsc 83texts cited thomas principle sentencing 2nd ed 1979 category sentenceparties australian security investment commission plaintiff andrew sigalla defendant representation counsel r stack plaintiff robb qc c botsman defendant solicitor conrad gray solicitor plaintiff file number 2009 290316publication restriction judgmentthe first defendant mr andrew sigalla found guilty contempt court respect charge subject paragraph 33 41 amended interlocutory process asic v sigalla 4 2011 nswsc 62 judgment deal appropriate sentence contempt court mr sigalla found guilty preliminary mattersinasic v sigalla 4 held application charging mr sigalla numerous contempt court criminal proceeding charge criminal contempt said 84 charge concerned civil contempt held proceeding included charge criminal contempt proceeding offence hence criminal proceeding within meaning thecivil procedure act2005 |
R v Cunningham [2017] NSWSC 1176 (5 September 2017).txt | r v cunningham 2017 nswsc 1176 5 september 2017 last updated 5 september 2017supreme courtnew south walescase name r v cunninghammedium neutral citation 2017 nswsc 1176hearing date 28 8 17 31 8 17date order 5 september 2017decision date 5 september 2017jurisdiction common lawbefore beech jones jdecision accused guilty reason mental illnesscatchwords criminal law murder judge alone trial killing elderly woman accused raise defence mental illness accused affected schizoaffective disorder psychiatrist agree accused know action morally wrong according ordinary standard right wrong significant body independent material pointing accused mentally ill period prior offence whether psychiatrist opinion rejected dependence upon unreliable version offence given accused whether accused action covering offence negates mental illness defence psychiatrist opinion accepted defence mental illness upheld legislation cited crime act 1900 nsw 18 1 23a 3 428ccriminal procedure act 1986 nsw 132 2 evidence act 1995 nsw 141 2 law enforcement power responsibility act 2002 nsw mental health forensic provision act 1990 nsw 38cases cited barca v queen 1975 hca 42 133 clr 82briginshaw v briginshaw 1938 hca 34 60 clr 336edwards v r 1993 hca 63 178 clr 193goodridge v r 2014 nswcca 37hawkins v queen 1994 hca 28 179 clr 500mcnaghten case 1843 cl f 200 8 er 718moukhayber v camden timber hardware co pty ltd 2002 nswca 58r v fang 3 2017 nswsc 159r v lane 2011 nswcca 157 221 crim r 309r v minani 2005 nswcca 226 63 nswlr 490r v papley 2017 nswsc 1068r v quinn 2 2016 nswsc 1244stapleton v queen 1952 hca 56 86 clr 358strong v woolworth ltd 2012 hca 5 246 clr 182the king v porter 1933 hca 1 55 clr 182wilson v queen 1992 hca 31 1992 174 clr 313zoneff v r 2000 hca 28 200 clr 234category principal judgmentparties regina crown marita therese cunningham accused representation counsel c patrick sc crown b rigg sc accused solicitor director public prosecution nsw crown legal aid nsw accused file number 2016 87940judgmenton 28 august 2017 accused marita cunningham arraigned court indictment charged murdering may ritchie freshwater state 20 march 2016 pleaded guilty commencement trial court advised order judge alone trial made 2 june 2017 accordingly trial proceeded sitting without jury final submission completed 31 august 2017 judgment reserved court raised issue party whether trial judge alone order fact made 2 june 2017 submission issue received shortly prior publication judgment court held order made respect trial regular sometime 8 00pm 20 march 2016 m ritchie found unit freshwater covered newspaper pillow covered bruise asphyxiated despite best effort police ambulance officer unable resuscitate pronounced dead scene time death m ritchie 81 year old m ritchie diagnosed dementia able live independently number statement tendered trial neighbour family friend spoke warmth friendly nature clearly missed post mortem examination revealed m ritchie suffered number blunt force injury cause death asphyxiation may strangled smothered throughout afternoon 20 march 2016 number person exiting unit block placed saw accused m ritchie unit together seen drinking wine various time talking interacting friendly manner although accused behaviour appears become disturbed afternoon progressed m ritchie last heard alive around 7 00pm around 8 00pm friend m ritchie robert bob lyford knocked door light unit turned used key enter unit found accused could see m ritchie accused tried push door pushed past conducted quick search unit could find m ritchie police called mr lyford followed accused unit attempted leave police arrived mr lyford asked apprehend meantime mr lyford found m ritchie floor unit first issue arose trial whether crown proved beyond reasonable doubt deliberate act accused caused death m ritchie reason set balance judgment satisfied next issue arose trial whether accused criminally responsible action behalf accused contended court satisfied balance probability mentally ill time m ritchie killing contention accepted court must return verdict guilty reason mental illness defence adduced evidence psychiatrist dr elli prosecution adduced evidence psychiatrist professor greenberg dr elli professor greenberg diagnosed accused suffering schizoaffective disorder crown dispute diagnosis dr elli professor greenberg concluded accused mentally ill time m ritchie killed considered know action morally wrong accordance ordinary standard right wrong adopted reasonable people conclusion contested crown reason follow accept crown contention uphold defence mental illness summary accept psychiatrist diagnosis opinion supported strong body independent evidence concerning accused conduct mental state right time killed m ritchie time arrested principle lawsection 133 2 thecriminal procedure act 1986 nsw requires judgment trial judge alone include principle law applied judge finding fact judge relied section 133 3 provides f act law requires warning given jury case judge take warning account dealing matter relevant finding fact set balance judgment point record applicable principle law warning taken account general principlesthe first principle concern onus standard proof respect defence mental illness partial defence substantial impairment crown carry burden proving guilt accused standard beyond reasonable doubt accused obligation prove anything respect mental illness substantial impairment accused bear onus proof standard balance probability second principle concern accused right silence accused required give evidence fact significance played role decision even respect matter upon bore onus proof third principle concern element offence murder order prove charge murder necessary crown prove beyond reasonable doubt deliberate act omission accused caused death deceased act omission carried intention either kill cause really serious bodily harm reckless indifference human life crime act 1900 nsw 18 1 stated case issue unders 38 1 themental health forensic provision act 1990 nsw mhfpa raised whether accused criminally responsible action contended mentally ill time supposedly killed m ritchie case accused charged murder issue arises unders 38of themffpa first issue must determined whether crown proven beyond reasonable doubt deliberate act omission accused caused death deceased proven necessary consider whether accused criminally responsible whether accused established balance probability mentally ill time purpose ofs 38 1 established court must enter verdict guilty reason mental illness however issue determined adversely accused becomes necessary consider whether crown established beyond reasonable doubt act omission accused accompanied one mental state necessary prove offence murder ie intention kill inflict grievous bodily harm reckless indifference seehawkins v queen 1994 hca 28 179 clr 500at 517 hawkins r v minani 2005 nswcca 226 63 nswlr 490at 32 per hunt aja spigelman cj howie j agreeing minani andr v papley 2017 nswsc 1068at 6 crown prove beyond reasonable doubt one mental state accused guilty murder event court must consider whether accused guilty manslaughter unlawful dangerous act act unlawful must proven inter alia committed selfdefence act dangerous reasonable person position accused would realised act deceased exposed appreciable risk serious injury wilson v queen 1992 hca 31 1992 174 clr 313 even issue resolved adversely accused found guilty murder two matter must addressed first self defence account given accused one psychiatrist capable raising issue whether accused acted self defence killing m ritchie accordingly accused convicted murder necessary crown disprove beyond reasonable doubt acted second even accused otherwise guilty murder contended behalf established partial defence substantial impairment provided in 23aof thecrimes act defence established culpability murder reduced manslaughter fourth principle concern drawing inference case crown invite court draw inference accused engaged deliberate act caused death m ritchie acted intention kill m ritchie intention inflict grievous bodily harm upon reckless indifference human life element crime murder must proved beyond reasonable doubt extent sought done inference follows draw inference unless rational inference circumstance barca v queen 1975 133 clr 82 1975 hca 42at 104 fifth principle concern expert evidence specifically psychiatric evidence expert evidence two psychiatrist admitted trial concerning accused mental state time m ritchie killed evidence relevant court assessment issue noted 12 14 including defence mental illness substantial impairment jury usually directed give evidence careful consideration recognise accept evidence act upon particularly fact upon opinion based accord fact jury find judicial commission new south wale criminal trial court benchbook 2 1110 jury also often instructed expert evidence either unchallenged unanimous inherently unbelievable jury would need good reason reject example fit fact jury found proved seegoodridge v r 2014 nswcca 37at 116 case crown contends good reason reject opinion psychiatrist accused mentally ill amongst matter crown contends opinion accord revealed close analysis accused behaviour immediately killing sixth principle concern circumstance lie told accused person constitute corroboration inr v lane 2011 nswcca 157 221 crim r 309 lane 56 simpson j howie j agreed 85 paraphrased requirement stated mchugh j inedwardsvr 1993 hca 63 178 clr 193 edward lie said told accused person constitute corroboration case specifically 1 lie must deliberate 2 lie must relate material issue 3 motive lie must realisation guilt fear truth 4 statement said constitute lie must clearly shown lie admission evidence evidence lie tendered corroboration evidence witness evidence showing statement lie must person witness case third requirement later said best expressed one requires accused know truth would implicate commission offence edwardsat 211 zoneffv r 2000 hca 28 200 clr 234at 16 zoneff per gleeson cj gaudron gummow callinan jj case crown prosecutor pointed certain statement made accused mr lyford attending police immediately m ritchie killed submitted lie could used manner contended inedwardsandlane considering submission necessary consider precise issue trial alleged lie said relate thus insofar crown seek prove accused committed deliberate act caused death m ritchie reasoning reference alleged lie manner provided inedwardsandlanemay appropriate however end result determining issue find necessary consider alleged lie told accused insofar crown relies alleged lie rebut defence mental illness appropriate address matter accordance withlane difficult envisage alleged lie told accused reveals consciousness person meeting definition mental illness instead fact alleged lie told accused may circumstance suggest appreciated moral wrongdoing act approach matter basis mental illnessas stated contended behalf accused court enter special verdict guilty reason mental illness section 37of themhfparequires trial judge provide explanation jury finding may made trial legal practical consequence finding include reference existence composition mental health review tribunal tribunal function tribunal including provision ofs 39of themhfpa suffices state aware matter power return verdict guilty reason mental illness provided bys 38of themhfpa provides 38 special verdict 1 indictment information act omission charged person offence given evidence trial person offence person mentally ill responsible according law action time act done omission made appears jury person tried person act made omission charged butwas mentally ill time person made jury must return special verdict accused person guilty reason mental illness 2 special verdict guilty reason mental illness returned trial person offence court may remand person custody making order undersection 39in respect person defence mental illness made accused establishes balance probability time act omission caused deceased death labouring defect reason disease mind know nature quality act omission know know wrong accordance ordinary standard right wrong adopted reasonable people mcnaghten case 1843 cl f 200 8 er 718 king v porter 1933 hca 1 55 clr 182 porter instapleton v queen 1952 hca 56 86 clr 358 stapleton 367 dixon cj webb kitto jj expanded upon meant limb test requires person know action wrong stating evident jury although satisfied capacity existed particular accused reason may think back awareness nature act fact people might regard wrong especially mean regarded law wrong would lead conviction jury understands given disease disorder defect reason enough governed faculty time commission act thatthe accused incapable reasoning moderate degree calmness wrongness act comprehending nature significance act killing emphasis added two matter made clear instapleton first question raised limb test case whether accused appreciated wrongfulness taking life generally whether cannot distinguish right wrong regard particular act stapletonat p 374 per dixon cj webb kitto jj second case distinction whether accused knew action wrong law whether knew right wrong according reasonable standard honour explained p 375 certain case insane motif accused arise complete incapacity reason right wrong insane judgment even treating act one inexorable obligation inescapable necessity may yet back mind awareness act proposes punishable law inr v fang 3 2017 nswsc 159at 74 112 fang 3 johnson j comprehensively reviewed authority concerning relevance intoxication defence mental illness honour concluded 94 authority new south wale support position drug induced psychosis intoxication alcohol drug constitute disease mind unless also separate psychiatric illness operative time act giving rise charge intoxication specific intentthere evidence accused consumed alcohol period prior m ritchie death evidence taken account determining whether accused intention cause death grievous bodily harm unless accused resolved become intoxicated allegedly killed m ritchie became intoxicated strengthen resolve kill inflict grievous bodily harm upon m ritchie crime act 428c evidence accused made either decision substantial impairmentthe partial defence substantial impairment provided in 23aof thecrimes act outlined legal principle concerning partial defence inr v quinn 2 2016 nswsc 1244at 22 34 judgment read passage self induced intoxication accused disregarded determining substantial impairment crime act 23a 3 backgroundoral evidence adduced two psychiatrist dr elli professor greenberg officer charge investigation detective senior constable vickery witness statement tendered crown prosecutor without objection senior counsel accused m rigg sc without request crossexamine author statement end result contest primary fact set unless otherwise stated satisfied following matter 20 march 2016 m ritchie 81 year age lived two bedroom unit foam street freshwater unit located ground floor apartment block unit faced wyadra avenue freshwater run perpendicular foam street entrance apartment block immediately adjacent door m ritchie unit door opened onto small balcony ground level immediate period death m ritchie son kenneth stayed unit three night week 1 sunday 20 march 2016 visiting child central coast 2015 m ritchie diagnosed dementia although still capable taking care m ritchie relatively frail weighed 59kg 1 61m height 20 march 2017 accused 49 year age 1 7m tall weight somewhere 80 90kg 2 lived unit ronald road narraweena accused mental history described detail point suffices state following birth child 2007 developed severe postnatal depression subsequently mental health deteriorated point developed schizoaffective disorder condition professor greenberg explained person schizoaffective disorder combination schizophrenic symptom ie episode psychosis involving hallucination delusion thought disorder disorganised behaviour also experience mood component result manic depressive symptom usually associated someone bipolar 3 explained period preceding killing m ritchie m cunningham behaviour become increasingly disturbed 20 march 2016 condition unmedicated robert lyford lived apartment block wyadra road opposite m ritchie unit apartment small balcony direct view m ritchie balcony 4 date m ritchie death mr lyford 69 year age moved unit 2010 death wife previously lived narraweena lived narraweena wife met became friend accused remained friend death wife early 2013 mr lyford accused commenced relationship engaged short period however relationship broke mr lyford stated january 2015 incident occurred house resulted apprehended violence order avo made accused preventing contacting period 12 month 5 20 march 2016between 6 30am 7 30am 20 march 2016 accused seen neighbour annette ottone ronald avenue narraweena m ottone noticed accused kept looking street talking 6 accused attended 8 00am service st john church narraweena parishioner matthew aylward observed woman satisfied later identified accused acting strangely described fidgety agitated said repeatedly creased folded church bulletin paper dropped picked saw accused clench fist time knuckle would turn white mr aylward said one point accused passed wind looked person behind made exaggerated gesture embarrassment placing hand mouth 7 sometime 11 00am 11 30am neighbour accused m hanson saw accused walking along street narraweena described accused generally unkempt dishevelled bad state m hanson attempted talk accused weather stated accused started ramble go tangent seemed bit confused 8 m ottone saw accused 12 00pm 1 00pm 20 march 2016 saw accused talking howl like dog 9 m ritchie visited mr lyford unit late morning 20 march 2011 left early afternoon stated would return 4 00pm watch afternoon football game 3 04pm accused boarded bus macintosh road narraweena travelled bus stop corner oliver street wyadra avenue freshwater exited bus 3 19pm 10 statement mr lyford recalled around 3 45pm accused knocked door unit answering door mr lyford asked accused home accused stated come watch football avo expired mr lyford said fuck never want see want know closed door 11 mr panayiotis menelaou lived block unit mr lyford statement mr menelaou said 4pm 20 march 2016 saw m ritchie standing outside front unit saw woman kiss m ritchie cheek stroke hair walk across road mr lyford unit heard woman talk mr lyford yell fuck want know 12 saw woman believed accused walk back m ritchie house start talking saw walk inside unit mr menelaou partner m brigid sheedy heard exchange accused mr lyford saw accused leave unit block walk across wyadra avenue m ritchie unit 13 time deceased standing front door accused walked patted deceased head shoulder m sheedy observed m ritchie accused talk minute said entered m ritchie unit 14 regard mr menelaou evidence accept accused alighted bus freshwater first went m ritchie unit walked across road knocked mr lyford door returning m ritchie unit sometime around 4 00pm 4 30pm another resident m ritchie unit block greg rhodes walked exit block looked m ritchie unit saw m ritchie another woman infer accused dancing 15 another resident keith burndred saw m ritchie talking woman balcony around 4 30pm 16 m ingher ohlsson also life block unit around 4 45pm saw woman porch outside m ritchie unit shaking cloth like trying get rid dust 17 satisfied woman accused around 5 00pm 5 30pm nicola dickie also lived m ritchie unit block heard may talking another female heard man upstairs talking m ritchie described man late 30 darker racial appearance 18 approximately 5 40pm paul edgar returned m ritchie unit block saw door m ritchie unit open inside saw m ritchie standing female crouching floor near mr edgar said m ritchie standing next looked bit worried 19 6 10pm football finished mr lyford walked balcony looked towards m ritchie unit saw accused m ritchie seated lounge room m ritchie unit mr lyford rang m ritchie son kenneth ritchie mr lyford statement suggests kenneth ritchie answered phone mr lyford told mr ritchie accused mother house suggested ring mother tell accused bugger 20 interview police 4 april 2016 mr lyford agreed left message mr ritchie mr ritchie returned call around 7 45pm 21 statement kenneth ritchie state received missed call notification mr lyford mobile phone 6 44pm rang back later calling mother 7 55pm 22 accept kenneth ritchie account respect shortly 6 45pm one m ritchie neighbour mr graham marr left unit block exit near entrance m ritchie unit saw m ritchie balcony unit accused come unit holding empty wine glass one hand empty bottle wine statement mr marr described accused dishevelled stumbling making noise mr marr saw m ritchie roll eye make gesture hand indicated mr marr m ritchie thought accused mentally impaired 23 m ritchie repeated gesture mr marr formed opinion accused heavily intoxicated something 7 00pm paul edgar partner nicola edgar heard m ritchie talking another female infer accused statement said conversation sounded normal although female speech slurred 24 sometime period m dickie heard m ritchie say true single whoever said liar heard noise woman voice scream 25 consistent finding 44 satisfied mr kenneth ritchie returned mr lyford call sometime prior 7 55pm 7 55pm mr kenneth ritchie twice called mother home phone answer mr ritchie called mr lyford mr lyford agreed go m ritchie premise check mr lyford key m ritchie premise walked front door statement mr lyford said knocked door sudden light went 26 recalled knocking door saying may bob alright love recalled answer could hear noise inside interview 4 april 2016 stated noise might television 27 mr lyford unlocked door entered front door lead immediately lounge room unit opening door mr lyford saw television lounge room accused standing meter half said accused replied saying get call police mr lyford said mean call police cause mr lyford saw blood floor said blood accused said mr lyford recalled accused moved forward started push back front door pushed past turned lounge room light accused immediately turned mr lyford walked past accused turned kitchen light mr lyford checked bedroom bathroom 28 accused remained lounge room mr lyford said may accused said got bottle wine headed place mr lyford believe around 8 10pm mr lyford rang police mobile phone asked attend 29 police officer received call recalled mr lyford stating marita going 30 could hear female background speaking 31 mr lyford observed accused rummaging bag ground floor lounge room recalled said something needing find key could leave mr lyford looked m ritchie bedroom bathroom could find returning lounge room checked m ritchie handbag could see purse mr lyford saw accused walk front door followed two police officer arrived officer recorded arrival time 8 17pm mr lyford asked officer stop accused believed taken deceased wallet one officer constable thompson saw accused quickly walking away scene officer said stop police come back twice accused kept walking constable thompson said stop walking make run accused continued westbound crossed road heading towards oliver street officer constable sherman called stop 32 officer stopped northern footpath wyadra avenue outside 21 wyadra avenue accused carrying number carry bag jacket officer constable sherman said accused marita said yeah constable sherman said stop wait second find happening accused said go statement constable sherman described accused appearing nervous fidgeting belonging spoke rambled mumbled 33 observed blood blue top wearing constable thompson walked speak lyford speaking kenneth ritchie phone mr lyford told constable thompson suspicion accused taken m ritchie purse constable thompson speaking mr lyford constable sherman attempted speak accused statement described dismissive distant question making lot sense continuing ramble asking leaving 34 constable thompson walked road constable sherman accused constable thompson said accused anything belongs may accused replied watching football 35 either constable thompson constable sherman asked blood shirt accused said got period constable thompson recall asking going replying home narraweena 36 constable sherman recall asked replying narraweena 37 nothing turn discrepancy statement constable thompson described accused anxious evasive asked question tone voice quiet sheepish meantime mr lyford entered m ritchie unit noticed lounge room messy newspaper cushion spread everywhere tried find remote control television moved newspaper floor found m ritchie leg covered newspaper cushion started chest compression called police constable thompson ran unit saw m ritchie lying motionless floor observed lying amongst newspaper red green shopping bag light coloured pillow around could see blood newspaper carpet surrounding m ritchie could see blood coming right ear distinctive bruise forehead blood top nose blood around mouth hair appeared thick blood saw cut m ritchie right hand skin appeared peeled upwards one knuckle wrist 38 ran doorway told constable sherman arrest accused constable thompson moved clutter top mr ritchie statement said m ritchie warm touch conscious breathing performed external cardiac compression constable sherman entered unit assist moved m ritchie body 1 foot towards centre room 39 two ambulance officer arrived 8 33pm 40 observed m ritchie unconscious breathing another ambulance arrived shortly afterwards attempted resuscitate m ritchie unsuccessful informed police deceased accused statement police officersafter assisting constable thompson arrested accused constable sherman cautioned accused accused said yes say anything 41 soon acting sergeant williams approached accused said name acting sergeant williams northern beach police arrest murder say anything want whatever say may recorded later used evidence understand accused said shit really 42 accused conveyed manly police station accused arrived manly police station around 10 00pm senior constable mackinnon met charge room accused asked last name answer senior constable mackinnon asked whether arrested last 48 hour recalled accused mumbled something smelled alcohol observed eye glazed watery appearance 43 asked question concerning health medical condition mental state continued rambling talking told story son beginning sounded though time period talking continually changed 44 senior constable mackinnon attempted explain right underpart 9of thelaw enforcement power responsibility act 2002 lepra concluded understand tried explain right number time asked repeat back explanation could recall told instead told unrelated story 45 constable cumming duty manly police station time noted accused appeared disorientated confused police custody recalled accused speech slurred asked arrive instruction repeated two three time accused understood 46 constable cumming observed accused dock said accused pac ing around circle hair placed face unable hold conversation made sense constable cumming record accused smelling alcohol point constable cumming senior constable mackinnon taped exhibit bag accused hand preserve forensic evidence detective senior constable white spoke accused one point asked local family member friend police could call accused responded raining hole roof house hole water come bucket overflowing need go fix bucket statement detective white described accused demeanour strange stated accused eye opened extremely wide spoke appeared attentive asking question however answer made appear listening understanding asking denied taking drug drinking alcohol 47 1 10am 21 march 2016 senor constable mckinnon spoke accused stated time accused appeared listen understand accused asked summarise paragraph document read concerninglepra able explain thought paragraph meant accused signed document appropriate section without pointed officer 48 shortly afterwards detective senior constable vickery spoke accused concluded accused eye wide open pupil small accused demeanour normal behaviour changed erratic rambling conversation calm could smell alcohol breath 49 asked whether remembered arrested replied yes state evidence detective vickery stated accused started rambling word really understand started walk around cell trying talk described mood erratic said raising lowering voice senior constable vickery asked accused understood arrested murder may ritchie accused stopped talking said dead 50 3 00am 21 march 2016 detective senior constable kylie morris spoke accused contacting member family statement detective morris recorded conversation accused started talking possum roof something making noise roof slept detective morris noted accused word jumbled place nothing making sense 51 due concern accused mental state need obtain support person interview delayed one officer detective pollard saw accused 10 20am 21 march 2016 attempted explain forensic procedure police wanted undertake observed accused vacant somewhat non understanding 52 11 10am solicitor support person saw accused however solicitor provided advice relation carrying forensic procedure police proposal interview 12 30pm electronically recorded interview accused presence support person commenced 1 26pm interview suspended enable accused obtain legal advice shortly interview resumed interviewing officer detective sergeant pooley stopped interview concluded accused understand seriousness allegation detective pooley also concerned accused either incapable understanding legal advice received adequate legal advice although brief question asked interview concluded shortly thereafter interview accused charged video recording interview played open court 28 august 2017 accused calm interview time appeared reasonably focused able provide responsive answer although answer tangential however accused demeanour suggested understand seriousness allegation predicament one point stated detective told m ritchie dead know whether believe 53 number answer confirmed poor recollection recent event accused stated slept late 20 march 2017 missed church 54 whereas eye witness recall attending see 33 accused also stated alighted bus wyadra street intending walk beach 55 stated m ritchie waved 56 said god may remember 57 accused stated talked child 58 m ritchie asked come drink 59 recounted discussion mr lyford referred big bob another man referred little bob blood dna sample taken accused around 5 25pm 21 march 2016 60 investigation post mortemshortly police arrived crime scene established m ritchie unit walking stick found near m ritchie body empty bottle wine located front patio alcohol container found one accused bag retrieved m ritchie unit contained swim wear 61 numerous bloodstain carpet near m ritchie body 62 blood stain found accused clothes hand 63 post mortem examination m ritchie pathologist m rebecca irvine found suffered extensive blunt force injury face scalp bruising also present trunk multiple area subcutaneous haemorrhage back upper extremity hand showed multiple blunt force injury consistent defence type injury evidence soft tissue damage neck fracture hyoid bone horseshoe shaped bone neck also fracture superior horn thyroid cartilage post mortem report also noted multiple rib fracture well fracture sternum accepted consistent chest compression performed m ritchie 54 64 m irvine concluded direct cause death asphyxia blood sample taken m ritchie revealed blood alcohol reading 0 054 65 blood sample taken accused revealed blood alcohol reading concentration tramadol le 0 01 mg l 66 tramadol synthetic opioid used treatment moderate pain 67 pharmacologist opined accused dosage normal therapeutic range treatment chronic pain 68 accused clothing examined blood subjected dna testing mixed dna profile recovered swatch bloodstain front black legging worn accused time arrest well singlet 69 major component mixture dna profile m ritchie 70 m ritchie dna profile also recovered swatch bloodstain front right sleeve accused jacket 71 walking stick found vicinity deceased body seized 72 appeared blood stain subject dna testing relevant result follows 73 trace swab taken middle section returned mixed dna profile m ritchie could excluded major contributor accused could excluded minor contributor mixture b m ritchie dna profile recovered trace swab curved handle section c m ritchie dna profile recovered swab blood stain mark underside curved handle section mixed dna profile recovered swab blood stained partial fingerprint towards end cane major component mixture profile m ritchie search warrant executed accused premise police seized teddy bear knife stabbed neck 74 accused mental historythe narrative event 20 21 march 2016 includes material addressing accused mental state time crown m rigg sc tendered evidence addressing mental state period prior 20 march 2011 incarceration consisted discharge summary hospital period 2007 2013 75 document created officer community correction reporting period january 2016 march 2016 76 justice health record documenting condition custody arrested 77 report mental health case worker saw accused week preceding m ritchie death 78 statement neighbour police officer interacted period summarise effect material unless otherwise stated satisfied following matter pre 20 march 2016as stated accused diagnosed suffering post natal depression 2007 admitted manly hospital 17 february 2007 discharged 8 march 2007 discharge summary record psychotic markedly disorganised paranoid felt watched persecuted well known businessman experiencing auditory hallucination 79 accused involuntarily admitted hospital 22 august 2008 accused found attempting bath creek seaforth electricity disconnected released 3 december 2008 admission 15 march 2013 accused called emergency service claiming poisoned chicken stir fry released 10 may 2013 case diagnosis relapse schizoaffective disorder 80 noteworthy period admission substantial interaction mr lyford period much evidence accused condition admission statement sister indicates release hospital received daily counselling appointment psychiatrist welfare worker 81 report 20 february 2017 dr elli reported sometime around christmas 2015 accused stopped taking medication condition want mix alcohol 82 although treat history given accused psychiatrist caution accept reasonably accurate consistent told community correction officer 19 january 2016 83 subsequent behaviour witness statement one accused neighbour paula brutnell described accused behaviour worsening time recall arguing backyard making noise sounded like smashing pot plant slamming various door garbage bin top m brutnell stated number occasion month prior 20 march 2016 saw accused footpath acting like cheer leader holding waving tea towel around pom pom also recalled occasion accused lifted top expose breast lifted skirt reveal vagina bottom passing car 84 m brutnell stated police called accused premise january 2016 yelling neighbour property throwing rubbish fence 85 another neighbour m ezzat shojaidini stated accused behaviour constantly always seemed drunk yelling loudly stated accused behaviour crazy month prior m ritchie death 86 one occasion abused husband telling go back country 87 m eleanor hanson work carer couple live near accused wheelchair bound observed accused neighbourhood singing exposing passing car m hanson stated month prior m ritchie death observed decline accused mood started ramble engaged odd behaviour knocking client door showing rosary bead handing car key without explanation one occasion accused complained m hanson one client tried run car pointed vehicle supposedly driven fact car owned m hanson client car cannot drive 88 27 january 2016 community correction officer rang accused recorded accused making much sense bad past couple day 89 accused attended interview officer 2 february 2016 officer recorded accused frazzled confused jumping topic topic paranoid adamant neighbour breaking house 90 officer spoke met accused number time next day made similar observation 91 included visit accused residence observed chaotic officer recalled visit accused became quite aggressive yelling someone roof 92 sake completeness note community correction officer made numerous call various service provider seeking advice assistance 10 february 2016 accused reported community correction officer accused reported present ing lot better last week still talkative would ramble 93 discussed admitting accused hospital accused recorded begg ing go back 94 part mental health plan arranged accused accused attended appointment mental health worker 12 february 2016 purpose sort ing mental health stress problem ultimate goal obtaining easier access son 95 accused met community correction officer 3 march 2016 officer noted accused unwell chaotic accused told officer someone stealing account officer recorded accused paranoid stated locked door window house also recorded marita state script thyroxine also tramadol pain relief epilim anti psychotic medication epilim mood stabiliser noted analysis blood sample taken accused death m ritchie detected tramadol epilim 96 8 march 2016 accused attended session mental health worker case worker recorded accused need review psychiatrist possibly involuntary treatment stabilise condition 97 11 10am wednesday 9 march 2016 police spoke accused near ivanhoe hotel corso manly bashed hand window police van transporting associate police station 98 observed intoxicated issued move order however advised member public abusive saw chase abuse female pedestrian 99 approached accused abused arrested 100 catholic priest tiziano torresan recalled day prior 20 march 2016 accused seen state confusion half dressed lying grass front st john catholic church waratah parade narraweena father torresan recalled another occasion late attending service arrived began shouting escorted church 101 accused missed appointment mental health case worker 16 march 2016 evening 16 march 2016 one accused neighbour jamie zonno observed accused hitting car cricket bat saw accused enter passenger side car reach driver side police attended formed opinion accused moderately intoxicated told police car belonged nicholas read police told accused would take personal violence order would come police station accused said okay feed rat first come inside get possum nicholas read roof attending police officer described accused continuously ramb ling topic conversation 102 afternoon friday 18 march 2016 accused rang m shojaidini door bell m shojaidini opened front door left security door locked accused holding cricket bat said m shojaidini angry voice sick dog 103 mid morning 19 march 2016 accused spoke neighbour mr john smith complained spoken previously accused said oh med someone getting med someone living roof one want believe mr smith previously observed accused talking yelling screaming one around 104 post 21 march 2016on 25 march 2016 accused admitted silverwater woman correctional centre behaviour screening process reported bizarre manic concluded accused understand seriousness charge 105 clinical note next day report happy confused 106 review accused 30 march 2016 described thought disordered engaging intense staring exhibiting generally bizarre behaviour 107 similar observation recorded almost daily basis 1 april 2016 13 april 2016 108 even though accused taking antipsychotic medication entry 13 april 2016 record accused suffering persecutory delusion seem keeping night delusion incorporated doctor nurse well corrective service staff 109 review conducted accused 22 april 2016 27 april 2016 23 may 2016 also recorded accused suffering persecutory ideation manic symptom despite continual increase medication 110 3 june 2016 improvement accused condition psychiatrist recorded speech le pressured compared last review still showed poor insight 111 progress although 20 june 2016 recorded thought disordered tangential 112 review 29 june 2016 concluded remain ed elated mood significant thought disorder 113 review accused 31 july 2016 recorded accused denying psychotic symptom perceptual disturbance 114 concluded mental state improving although presenting depressive symptom subsequent observation broadly consistent entry although 19 september 2016 reported accused thought disordered difficult redirect interrupt occasionally feel ing paranoid denying auditory hallucination 115 dr ellisms rigg sc tendered three report dr elli first two dated 6 august 2016 116 20 november 2016 117 respectively addressed whether accused fit tried third report dated 20 february 2017 118 addressed defence mental illness substantial impairment dr elli conducted clinical interview accused 17 june 2016 15 november 2016 24 january 2017 first two report dr elli diagnosed accused schizoaffective disorder substance use disorder report contain discussion accused personal psychiatric history consistent addition first report dr elli noted accused stated occasionally used cannabis december 2015 although entry medical record noted daily use 2 3 cone 119 dr elli third report contains recitation accused account event 20 march 2016 dr elli noted accused reported march 2016 taking medication regularly developed belief person roof accused told dr elli could hear music detected smell fried chicken coming roof accused stated week leading 20 march 2016 sleeping hearing voice sound like neighbour saying ice junkie booze slut 120 accused reported believing psychiatric patient manly ganging mr lyford follow ing around spy ing telescope wanted dead accused told dr elli placed knife teddy bear referred 73 hide case needed protect accused told dr elli could remember morning 20 march 2016 although remembered catching bus m ritchie apartment accused said took bottle wine missed m ritchie birthday wanted see also scared alone stated welcomed m ritchie went see mr lyford tell plan watching football afternoon 121 accused told dr elli returning m ritchie apartment spilled drink fell asleep cleaning m ritchie toilet remembers trying tidy lounge room visitor apartment left danced m ritchie fell dr elli reported following accused account point 122 said victim went said victim accused good mother think victim part conspiracy time angry victim criticising parenting think victim wanted harm point say point victim became noisy argumentative said remembers trying keep victim quiet said thought heard voice outside unit thought intruder related conspiracy mr lyford behind noise say time frightened wanted get away either conspirator mr lyford frightened noise victim would attract intruder later victim continued argumentative noisy thought victim might part conspiracy trying attract house order harmed say remembers using walking stick hold victim back pulling cushion head keep quiet remembers victim falling floor hitting head struggle think walking stick would struck victim head struggle said realise victim died think might knocked maybe made sic drunk asleep dr elli recorded accused denied wanted kill m ritchie stated want keep quiet believed noisy behaviour bringing attention flat exposing danger 123 third report dr elli maintained diagnosis schizoaffective disorder substance use disorder attributed improvement accused presentation since arrest sustained compliance psychiatric medication 124 dr elli addressed accused mental state time m ritchie killed dr elli noted number report neighbour parole officer concerned erratic behaviour given result blood test noted 70 dr elli concluded behaviour cannot explained effect drug use noted accused description experiencing hallucination persecutory delusion dr elli referred accused account time m ritchie death described hallucination thematically related accused delusion hearing people outside victim flat assuming conspirator ex partner coming physically harm kill dr elli noted accused began suspect m ritchie part conspiracy noted accused reported struggled m ritchie using walking stick pillow keep victim quiet rather response victim found dr elli noted covering m ritchie pillow newspaper appears attempt muffle sound consistent turning light apartment attempt found 12 125 dr elli reasoning conclusion mental illness follows 126 likely time experiencing significant thought disorder disorganisation thought process speech present initial review presentation police interview indicates perplexity disorganised thought process although likely knew struggling elderly person might cause harm therefore knowing nature quality actit likely able reflect composure held number emotionally salient delusion led significant degree fear combination thought disorder unlikely able consider action composed manner likely think action morally wrong time express aim keep victim quiet perceived persecutor outside house would notice felt threat time keeping victim quiet would form self defence report point thinking victim may part conspiracy deliberately trying attract attacker balance likely court could find defence mental illness open emphasis added cross examination dr elli expanded upon conclusion questioned accused action covering m ritchie body pillow newspaper 127 think behaviour positioning victim covering pillow newspaper likely due disorganised behaviour part mental illness indicating reflection composure action think sense ofwrongfulnesscomes term covering body ability think adegree sense composurein think knowledge wrongfulness impaired emphasis added aspect dr elli evidence reflects discussion instapletonof second limb mental illness noted 23 24 examination dr elli confirmed reference accused acknowledging wrongfulness action reference done something law opinion delusion would likely impacted understanding moral wrongfulness disturbance mood thought disorder would likely impacted ability reason composure action 128 128 ther aspect dr elli oral evidence addressed relation substantial impairment dr elli stated observation others including parole correctional officer well interaction police confirmed fundamental mental process impaired time m ritchie death dr elli concluded likely accused understanding event clouded delusional belief judgment around action ability control impulse similarly impaired 129 professor greenbergreports professor greenberg dated 3 may 2017 16 august 2017 tendered crown prosecutor 130 professor greenberg interviewed accused 19 april 2017 professor greenberg first report contains lengthy analysis accused personal psychiatric history broadly consistent dr elli set report also includes lengthy section addressing accused account killing m ritchie described given disjointed poorly sequential account 131 professor greenberg noted continually refocus accused attempting elicit version event dr greenberg record accused stating 20 march 2016 went m ritchie apartment celebrate m ritchie birthday took chocolate lolly bottle wine recount accused stating time arrived wet changed clothes brought swimwear intending go beach m ritchie want see later session accused also told professor greenberg mr lyford apartment aggressive told fuck 132 also told professor greenberg negro guy come m ritchie apartment door 133 professor greenberg recorded accused stating fell asleep m ritchie bathroom m ritchie danced together sang scottish song dancing fell accused hit head m ritchie said fine professor greenberg report state 134 claim m ritchie argument m ritchie yelled aggressive manner limited recall content argument recall m ritchie saying good mother claim m ritchie trying make fight want fight claim m ritchie attempted strike walking stick struggled claim memory next recall time feeling afraid mr lyford would m ritchie apartment accused claim believe m ritchie dead claim recall turning light phone rang wanted mr lyford think flat claim frightened yelled fuck earlier day accused report mr lyford came apartment called police state scrambled get stuff get away went outside police arrested alleged offence claim remember asphyxiating m ritchie questioning accused claim put hand m ritchie mouth wanted keep quiet questioned accused attempting leave scene alleged offence police attempted stop leaving claim wanted get away mr lyford scared claim remember police repeatedly telling stop walking away stated unless drunk consistent dr elllis professor greenberg diagnosed accused suffering chronic schizoaffective disorder alcohol use disorder history polysubstance use 135 professor greenberg addressed accused mental state time alleged offence important note professor greenberg set detail evidence noted concerning accused behaviour january 2016 morning 20 march 2016 arrest 136 professor greenberg concluded accused suffering disease mind time alleged offence 137 also concluded alcohol likely disinhibiting factor deteriorated mental state time alleged offence however primary significant factor underlying defect reason disease mind 138 professor greenberg conclusion mental illness part reasoning support conclusion follows 139 opinion balance m cunningham know action morally wrong time alleged offence labouring defect reason caused disease mind paranoid delusion auditory hallucination reportedly felt fearful anxious fear safety thought likely disordered time use alcohol likely sic exacerbating factor deteriorated mental state believed people including people roof neighbour unknown person trying harm time period m cunningham give limited account thought belief time one possible hypothesiswould telephone call knock door led heightened state psychotic anxiety struggled deceased claim trying strike walking stick thing sic may put hand deceased mouth keep quiet also claimed initially switched light pretend one home state psychotic fear therefore opinion balance defence mental illness available emphasis added professor greenberg stated similar reason accused suffering relevant form substantial impairment professor greenberg concluded accused capacity understand event judge whether action legally wrong concluded ability judge whether action morally wrong control substantially impaired professor greenberg second report addressed four specific question reflected submission put crown prosecutor first question extent opinion first report based upon history provided accused response professor greenberg acknowledged accused poor historian nevertheless stated gave weight self report likely suffering acute paranoid delusion hallucination time alleged offence 140 however stated gave considerable weight report condition behaviour week prior 20 march 2016 immediate aftermath m ritchie death professor greenberg noted accused provided slightly different information dr elli event 20 march 2016 stated may never know true rationale reasoning alleged co offending poor ability give coherent sequential account time alleged offence part parcel chronic mental illness 141 second question posed professor greenberg accused explanation offence rejected would affect opinion relation mental illness substantial impairment professor greenberg stated would willing review opinion accused explanation rejected added hoped court consider supporting material indicate accused acutely unwell mental illness time alleged offence impaired ability give logical sequential account time alleged offence 142 third question posed professor greenberg whether took account obvious difference history evidence extremely savage attack inflicted victim must involved blow professor greenberg answered yes fourth question posed professor greenberg concerned one possible hypothesis referred extract 112 asked whether possible scenario consistent fact know nature quality action know action morally wrong professor greenberg stated suggesting one possible hypothesis accepted scenario including know nature quality action know legally morally wrong 143 professor greenberg outlined various scenario reiterated balance view likely scenario hypothesis balance acute mental illness highly significant factor alleged offending behaviour oral evidence professor greenberg confirmed opinion accused mental illness defence premised hypothesis correct instead one possibility consistent opinion dr elli another 144 accused kill m ritchie consistent analysis 13 first issue arises whether crown proved beyond reasonable doubt deliberate act omission accused caused m ritchie death hawkinsat 517 minaniat 32 crown prosecutor contended given accused person m ritchie unit relevant time m ritchie frail physical condition m ritchie blood shirt forensic evidence inference overwhelming intentional determined act accused killed m ritchie 145 crown prosecutor contended prosecution establish precise mechanism m ritchie killing precise circumstance died accused motive reason killing m ritchie 146 m rigg sc dispute act accused caused death m ritchie 147 accept crown submission forensic evidence summarised reveals m ritchie beaten probably walking stick recovered scene otherwise assailant hand cause m ritchie death asphyxiation occurred either strangling hand smothered pillow combination evidence m ritchie neighbour mr lyford kenneth ritchie narrow time m ritchie killed flat sometime 7 00pm 7 55pm evidence point two people present within unit period namely m ritchie accused presence m ritchie blood accused shirt jacket point strongly attacker even weight placed accused admission scuffle psychiatrist alleged lie rational inference circumstance accused deliberate act caused m ritchie death conclusion strengthened regard account given accused dr elli professor greenberg noted 100 110 light forensic evidence satisfied beyond reasonable doubt accused attack m ritchie severe one frail 81 year old woman accused much stronger m ritchie numerous bruise m ritchie body many likely administered hitting walking stick damage neck occurred asphyxiation significant brutal act committed vulnerable person given potential significance next issue also record satisfied beyond reasonable doubt accused already killed m ritchie time mr lyford knocked front door following telephone call kenneth ritchie see 49 time knocking door entering unit short accused asphyxiated m ritchie covered body newspaper pillow accused guilty reason mental illness stated accused carry onus proof guilty reason mental illness standard proof balance probability evidence act 141 2 described undemanding standard see examplemoukhayber v camden timber hardware co pty ltd 2002 nswca 58at 23 per heydon j requiring preponderance evidence meet standard court must feel actual persuasion relevant fact occurrence established cannot reached mere mechanical comparison probability independent belief reality briginshaw v briginshaw 1938 hca 34 60 clr 336at 361 per dixon j nevertheless seems probabilistic reasoning lead court actually persuaded relevant fact strong v woolworth ltd 2012 hca 5 246 clr 182at 34 37 per french cj gummow crennan bell jj written submission m rigg sc pointed evidence concerning accused state mind arrest contended material suggested many instance accused rambling tangential confused apparently delusional indication intoxication 148 m rigg sc contended evidence unanimous accused suffers disease mind namely schizoaffective disorder time m ritchie killed accused labouring defect reason due disease mind 149 m rigg sc relied opinion psychiatrist effect accused know action wrong relevant sense time m ritchie killed submission crown prosecutor accepted accused suffered mental impairment however submitted court find accused discharged onus proving relevantly operative time killed m ritchie 150 crown prosecutor submitted court accept opinion professor greenberg dr elli accused affected mental illness killed m ritchie three related reason first psychiatrist opinion said dependent history obtained accused history demonstrably unreliable 151 crown prosecutor contended psychiatrist recorded accused stating put hand m ritchie mouth keep quiet whereas evidence suggests found m ritchie dead prior mr lyford knocking door crown prosecutor also referred difference account given psychiatrist thus professor greenberg record accused stating went m ritchie house celebrate birthday whereas dr elli recorded accused stating went accused unit missed birthday dr elli recorded accused stating fearful conspiracy involving others whereas account given professor greenberg involves conflict accused m ritchie see 100 110 152the second reason given crown prosecutor rejecting psychiatrist opinion accused engaged number act scene m ritchie killing crown contended conform history given psychiatrist psychiatrist engage 153 particular crown prosecutor pointed accused action covering m ritchie body 154 turning light mr lyford knocked door 155 confronting mr lyford entered pushing 156 lying mr lyford police blood floor blood 157 lying mr lyford stating m ritchie walking place bottle wine 158 third reason given crown prosecutor accused make reference delusional belief conversation police period immediately killing m ritchie crown prosecutor noted number instance anti social behaviour engaged accused prior 20 march 2016 accused made reference conspiratorial delusion example hit neighbour car 16 march 2016 accused made reference people living roof house see 88 crown prosecutor noted statement made accused around 3 00am 21 march 2016 made reference noise roof speaking detective morris see 62 159consistent obligation crown prosecutor took point dr elli professor greenberg address turn accused unreliable historianthe crown submission first point overstates significance attached dr elli professor greenberg much accused account could confirmed evidence aspect accused account psychiatrist time killing m ritchie fact reflects evidence source thus example alighted narraweena accused knocked door m ritchie unit went see mr lyford 40 accused ill formed plan go beach bag swimwear recovered m ritchie unit recollection negro guy visited unit find support m dickie evidence 42 recollection dancing m ritchie supported mr rhodes evidence evidence observation neighbour significant least extent negate suggestion accused went m ritchie unit thought harming adverse predisposition towards m ritchie nevertheless crown contention accused version event surrounding m ritchie killing inherently unreliable correct would persuaded accept psychiatric opinion solely largely depended upon acceptance much version event unsupported evidence however opinion dr elli professor greenberg dependent oral evidence dr elli repeatedly emphasised opinion largely dependent upon information received concerning accused behaviour condition time leading death m ritchie afterwards 160 dr elli accepted significant inconsistency accused account relevant event revealed post mortem m ritchie 161 could rely account specific thought specific time associated specific action 162 however considered evidence mental condition event meant could draw conclusion mental state period time flat m ritchie 163 according dr elli nature delusion tend remain may wax wane little tend relatively fixed belief persist result talking kind belief offence offence likely present throughout 164 hence dr elli accepted difference account given accused including nature delusion suffered given professor greenberg 165 nevertheless satisfied 166 sufficient information consider mental state affected delusion hallucination thought disorder time killing based account account behaviour beforehand afterwards account behaviour time killing incomplete inconsistency think sufficiently consistent account behaviour beforehand afterwards conclude suffering mental illness time word according dr elli accused account specific delusion operating unreliable conclusion relevantly affected delusion impaired mental functioning still drawn explained professor greenberg second report specifically addressed question directed extent opinion dependent upon accused version event noted oral evidence professor greenberg stated opinion premised upon acceptance hypothesis referred extract 112 like dr elli oral evidence professor greenberg emphasised material showed throughout january march 2016 accused mental state deteriorating presenting psychotic paranoia arrest hypomanic manic state 16 167 rofessor greenberg described weight attributed account follows 16 168 gave weight saying similarity saying evidence brief obviously discrepancy balance though balance rather strong firm witness balance opinion accused acutely unwell time likely manic state irritable angry paranoid action flowed defective reason time balance later discussing substantial impairment professor greenberg stated people schizoaffective psychosis acute psychosis change day day 169 subject considering next point accept either psychiatrist opinion substantially undermined inherent unreliability accused account precise action thought process time killed m ritchie large body evidence tendered concerning mental functioning period immediately killing period afterwards clearly demonstrate sustained period schizoaffective psychosis psychiatrist opinion effect particular delusion affectation suffering precise time killing m ritchie may unknowable sufficient material source accused support finding suffering delusion otherwise mentally ill time accused lie action covering m ritchie deaththe strongest point raised crown undermining conclusion psychiatrist concern accused action immediately killed m ritchie already noted dr elli evidence accused action covering m ritchie body newspaper pillow consistent acceptance legal wrongfulness action inconsistent knowing conduct morally wrong particular incapable reasoning moderate degree calmness wrongness act stapletonat 367 see 23 dr elli explained accused action covering body turning light mr lyford knocked door likely given persecutory delusion time disorganised attempt avoid perceived persecution 17 170 r elli gave explanation cross examined accused action pushing mr lyford even though stated scared 17 171 seeking ascertain accused version event led killing m ritchie professor greenberg took number point relied crown said demonstrate concealment crime acknowledgement wrongdoing see 110 oral evidence professor greenberg taken discussion point noted 126 accused 17 172 rofessor greenberg stated accused answer fixated upon supposed fear mr lyford said aspect delusion 17 173 n cross examination professor greenberg agreed number incident prior 20 march 2016 revealed fearful state including paranoid delusion someone living roof storing knife teddy bear 17 174 e also agreed hostile interaction mr lyford could led incorporated persecutory delusion 17 175 overall like dr elli professor greenberg concluded accused action covering m ritchie turning light suggest understood legal wrongfulness action balance moral understanding wrongfulness action 176 absence reference delusionsas noted crown submitted omission accused reference delusional belief conversation police period immediately killing m ritchie tended negate suggestion delusion operative killed m ritchie two point responding contention arise evidence dr elli professor greenberg first psychiatrist considered much anything flowed failure subject matter question asked accused concerned matter genesis development delusional belief 177 second aspect crown submission predicated assumption relevant manifestation accused psychiatric condition delusion hallucination set 30 professor greenberg explanation schizoaffective disorder involving symptom schizophrenia bipolar professor greenberg concluded accused reasoning rationale assault largely based paranoid psychosis emphasised schizoaffective disorder mood component 178 thus accused may relayed delusion police time arrest 3 00am morning 21 march 2017 doubt witnessed manifestation schizoaffective disorder similarly often questioning psychiatrist distinguished accused acting anger accused mental illness 179 regard dr elli accepted likely accused directed anger towards m ritchie would anger interacting symptom mental illness 180 many instance accused acting anger period prior 20 march 2017 nevertheless anger stemmed mental illness conclusionto point referred accused intoxication police witness interacted accused arrested referred smelling alcohol 181 others 182 one empty bottle wine found scene blood test accused reveal alcohol reading although blood sample taken approximately 24 hour arrested end result evidence substantially affected alcohol beyond acting disinhibiting factor event affectation alcohol preclude found guilty reason mental illness given clearly another operative condition namely schizoaffective disorder fang 3 see 25 force crown submission action accused immediately death m ritchie reveal appreciation moral wrongfulness action opinion professor greenberg dr elli accused mentally ill rested solely largely account delusion experienced time killed m ritchie given action immediately afterwards would concluded accused discharged onus proof however opinion dependent diagnosis opinion relied supported strong body independent evidence concerning accused conduct mental condition right time killed m ritchie time arrested weight material point strongly accused suffering mental illness killed m ritchie difference account given accused professor greenberg dr elli undermines attempt identify specific delusion affectation may experienced killed m ritchie however based independent evidence psychiatric evidence satisfied experiencing delusion affectation time consequence schizoaffective disorder accused action immediately killing equivocal consistent appreciated legal moral wrongfulness action however material available mean accused discharged onus satisfied balance probability accused could reason killing assaulting m ritchie moderate degree sense composure could know wrong porterat 189 190 stapletonat 367 accordingly satisfied balance probability time killed m ritchie accused labouring defect reason disease mind namely schizoaffective disorder effect know wrong accordance ordinary standard right wrong adopted reasonable people conclusionit follows must return verdict guilty reason mental illness 1 ex u tab 8 15 2 ex 1 ex u tab 30 20 3 30 08 17 p 115 45 116 16 4 ex b p 1 5 lyford 20 3 16 4 6 ex u tab 49 6 7 ex u tab 41 5 8 ex u tab 50 12 16 9 ex u tab 49 7 10 ex u tab 17 25 11 ex u tab 4 7 12 ex u tab 31 10 13 ex u tab 32 14 ex u tab 32 6 15 ex u tab 34 7 16 ex u tab 36 6 17 ex u tab 36 4 18 ex u tab 35 7 19 ex u tab 38 4 20 ex u tab 4 9 21 ex u tab 5 q217 q228 22 ex u tab 8 20 22 23 ex u tab 35 11 24 ex u tab 40 7 25 ex u tab 35 11 26 ex u tab 4 10 27 ex u tab 5 a247 28 ex u tab 5 q332 q339 29 ex u tab 4 11 ex u tab 6 5 30 ex u tab 6 5 31 ex u tab 6 9 32 ex u tab 12 8 33 ex u tab 12 9 34 ex u tab 12 10 35 ex u tab 12 11 36 ex u tab 10 11 37 ex u tab 12 12 38 ex u tab 10 16 39 ex u tab 10 17 40 ex u tab 11 7 41 ex u tab 12 13 42 ex u tab 12 16 43 ex u tab 22 8 44 ex u tab 22 10 45 ex u tab 22 10 13 46 ex u tab 21 9 10 47 ex u tab 16 6 7 48 ex u tab 22 14 49 28 08 2017 p 23 50 28 08 2017 p 23 51 ex u tab 15 24 52 ex u tab 20 7 53 ex u tab 19 a90 54 ex u tab 19 a99 55 ex u tab 19 a171 56 ex u tab 19 a176 57 ex u tab 19 a186 58 ex u tab 19 a187 a190 59 ex u tab 19 a198 60 ex u tab 30 61 29 08 2017 p 87 62 ex u tab 25 24 ex p 49 p 79 63 ex ex e 64 ex u tab 26 p 3 6 65 ex u tab 27 66 ex 67 ex u tab 30 21 68 ex u tab 30 31 69 ex p 1 70 ex u tab 28 p 13 71 ex u tab 28 p 13 72 ex p 69 p 70 73 ex u tab 28 p 9 74 ex g 75 ex 4 76 ex 77 ex 3 78 ex 79 ex 4 p 1 80 ex 4 p2 ex 4p 3 81 ex u tab 57 44 82 ex 5 p 3 83 ex p 1 84 ex u tab 48 5 7 85 ex pp 13 20 86 ex u tab 52 10 87 ex u tab 52 11 88 ex u tab 51 8 9 89 ex page 10 90 ex p 11 91 ex pp 11 15 92 ex p 12 93 ex p 16 94 ex p 16 95 ex 96 ex p 18 97 ex page 4 98 ex u tab 46 8 99 ex u tab 46 11 100 ex u tab 46 13 101 ex u tab 42 5 6 102 ex u tab 43 11 103 ex u tab 52 12 104 ex u tab 47 13 15 105 ex 1 p 10 106 ex 1 p 11 107 ex 1 p 13 108 ex 3 p 16 23 109 ex 3 p 26 110 ex 3 p 29 32 39 40 111 ex 3 pp 43 44 112 ex 3 p 46 113 ex 3 p 46 114 ex 3 p 53 115 ex 3 p 59 116 ex 1 117 ex 2 118 ex 5 119 ex 1 p 5 5 120 ex 5 p 3 5 121 ex 5 p 4 122 ex 5 p 4 6 123 ex 5 p 5 2 124 ex 5 p 5 9 125 ex 5 p 7 2 126 ex 5 p 7 3 127 28 08 2017 p 55 6 128 28 08 2017 p 67 39 129 ex 5 p 8 1 130 ex u tab 53 tab 54 131 ex u tab 53 p 3 1 132 ex u tab 53 4 9 133 ex u tab 53 5 1 134 ex u tab 53 pp 4 7 6 6 135 ex u tab 53 p 13 136 ex u tab 53 pp 14 18 137 ex u tab 53 p 19 3 138 ex u tab 53 p 19 10 139 ex u tab 53 p 20 7 140 ex u tab 54 p 3 8 141 ex u tab 54 p 4 10 142 ex u tab 54 p 5 143 ex u tab 54 p 5 7 144 30 08 2017 p 119 50 145 30 08 2017 pp 127 128 146 30 08 2017 p 127 39 147 outline submission accused 30 august 2017 1 148 outline submission accused 30 august 2017 6 149 outline submission accused 30 august 2017 7 150 30 08 2017 p 128 20 151 30 08 2017 pp 128 47 129 5 152 30 08 2017 p 143 15 153 30 08 2017 p 129 35 154 30 08 2017 p 129 38 155 30 08 2017 p 130 9 156 30 08 2017 p 130 23 157 30 08 2017 p 130 37 30 08 2017 p 134 23 see 49 53 158 30 08 2017 p 131 10 see 49 159 30 08 2017 p 139 30 160 28 08 2017 p 41 35 p 42 47 52 57 161 28 08 2017 p 48 11 162 28 08 2017 p 48 30 163 28 08 0217 p 48 49 164 28 08 17 p 43 1 165 28 08 17 pp 60 61 27 62 34 166 28 08 2017 p 63 10 167 30 08 0217 p 115 9 168 30 08 2017 p 117 40 169 30 08 2017 p 122 5 170 28 08 2017 p 54 43 171 28 08 2017 p 56 172 30 08 2017 pp 110 114 173 30 08 2017 pp 112 114 esp p 114 21 ex u tab 53 p 20 1 174 30 08 2017 p 123 175 30 08 2017 p 124 10 176 30 08 2017 p 118 10 177 28 08 2017 p 50 46 28 08 2017 p 116 49 178 30 08 2017 p 118 20 179 eg 28 08 2017 p 42 12 180 28 08 2017 p 42 19 181 see example 57 182 see example 58 61 |
Ankersmit, Leon Alexander [2003] MRTA 8591 (17 December 2003).txt | ankersmit leon alexander 2003 mrta 8591 17 december 2003 last updated 25 february 2004 2003 mrta 8590catchwords review visa refusal subclass 155 compelling compassionate circumstance lawfully present australia 5 year durationreview applicant leon alexander ankersmitvisa applicant paul ankersmitpietje damtribunal migration review tribunalpresiding member ricky johnstonmrt file number q03 01744dept file number 2002 rrv manila folder date decision 17 december 2003at brisbanedecision tribunal affirms decision review finding visa applicant entitled grant return residence class bb visa statement decison reasonsapplication review1 mr paul ankersmit primary visa applicant national netherlands born 25 july 1955 applied wife m pietje dam secondary visa applicant return residence class bb visa 29 august 2002 delegate minister immigration multicultural indigenous affair delegate decided refuse grant visa 13 november 2002 jurisdiction standing2 mr leon alexander ankersmit review applicant brother primary visa applicant lodged application review tribunal 12 february 2003 decision reviewable tribunal application review properly made person standing apply review legislation policy3 themigration act 1958 act various regulation made act principally themigration regulation 1994 regulation provide different class visa criterion grant visa reaching decision tribunal bound act various regulation written direction issued minister section 499 act matter may subject policy found publication theprocedures advice manual 3 pam3 themigration series instruction msis produced department immigration multicultural indigenous affair department tribunal required regard policy apply unless cogent reason departing policy 4 tribunal power affirm vary set aside decision refuse grant visa also power remit application visa department reconsideration remittal may accompanied direction visa applicant meet one criterion visa matter minister delegate consider remaining criterion review tribunal generally limited consideration whether visa applicant meet one essential criterion application remitted decision affirmed basis 5 generally member family unit applied visa together least one visa applicant must meet primary criterion visa applicant need meet secondary criterion 6 criterion policy immediately relevant review legislation item 1128 schedule 1 regulationspart 155 212 3 b schedule 2 regulationsdirections msi resident return visa application made 1 july 1999 general commentary rrvs particular see 4 visa subclass 155 five year resident return guideline visa subclass policy procedure advice manual 3 generic guideline visa generic policy guidance 7 tribunal generally regard regulation stood time visa application however subsequent amendment may apply circumstance evidence findings8 tribunal document content department file 2002 rrv manila folder tribunal file q03 01744 review applicant gave sworn oral evidence tribunal hearing held brisbane 5 august 2003 9 primary visa applicant movement 18 year summarised follows december 1984 primary visa applicant first entered australia permanent resident lived australia together spouse secondary visa applicant november 1989 departed australia holding resident return subclass 155 visa visa valid september 1994 10 9 june 1999 primary secondary visa applicant granted subclass 976 electronic travel authority eta visitor visa entered australia visa cease date 9 june 2000 25 january 2000 primary secondary visa applicant departed australia eta visitor visa june 2001 primary visa applicant lodged subclass 155 visa application refused 13 july basis relevant criterion met 11 29 august 2002 primary visa applicant together secondary visa applicant lodged new application subclass 155 visa hague 13 november 2002 delegate made decision refuse grant subclass 155 visa decision tribunal required review 12 primary decision record delegate stated visa granted basis primary visa applicant could meet requirement subclass 155 five year return visa particular delegate noted primary visa applicant meet criterion clause 155 212 3 b regulation compelling reason existed primary visa applicant absence australia 13 lodging review application 12 february 2003 review applicant submitted delegate erred making finding attached letter primary visa applicant claim secondary visa applicant cultural personal tie australia compelling compassionate reason kept away australia longer subclass 155 visa allowed particular reference made claim illness death secondary visa applicant father well secondary visa applicant illness prevented returning australia primary visa applicant explained secondary visa applicant illness resulted low energy particularly following emotional stress associated father death therefore consider lodging subclass 155 visa june 2001 secondary visa applicant made trip australia 1999 found exhausting number letter primary visa applicant friend former work colleague submitted support review application course review tribunal received material including letter general practitioner dated 21 june 2003 state secondary visa applicant diagnosed multiple sclerosis 1996 full detail submission letter may found tribunal file 14 hearing review applicant reiterated much evidence file indicated understood reason refusal decision referred illness subsequent death 1995 secondary visa applicant father emotional effect family member onset diagnosis illness 1996 review applicant belief factor amount compelling compassionate reason review applicant stated primary visa applicant close tie australia indicated primary visa applicant highly qualified teacher respected former work environment parent australian resident residing holland brother life australia tribunal note three brother two sister reside holland 15 time visa application lodged return residence class bb contained following subclass subclass 155 five year resident return subclass 157 three month resident return subclass respect claim advanced subclass 155 five year resident return evidence suggest visa applicant meet key criterion subclass 16 primary visa applicant lodged application resident return visa rrv form 1085 29 august 2002 visa application made basis primary visa applicant brother review applicant 17 one necessary primary criterion subclass 155 five year resident return visa clause 155 212 1 order meet criterion visa applicant must satisfy requirement subclause 155 212 2 3 3a 4 18 making refusal decision 13 november 2003 delegate found primary visa applicant failed meet requirement clause 155 212 3 b regulation delegate considered secondary visa applicant illness loss father satisfied demonstrated compelling reason absence australia 19 regard evidence tribunal find primary visa applicant cannot satisfy requirement subclause 155 212 2 4 evidence tribunal primary visa applicant held permanent visa time past five year 155 212 2 member family unit granted subclass 155 visa 155 212 4 20 issue tribunal consideration matter clause 155 212 3 provides 155 212 3 applicant meet requirement subclause applicant outside australia minister satisfied applicant substantial business cultural employment personal tie australia benefit australia applicant absent australia continuous period 5 year immediately application visa unless compelling reason absence applicant hold permanent visa ii last departed australia australian permanent resident iii last departed australia australian citizen subsequently lost renounced australian citizenship b australian citizen australian permanent resident le 10 year application absent australia period period total 5 year period date applicant last departed australia australian citizen australian permanent resident date application unless compelling reason absence 21 primary visa applicant business cultural employment tie australia however put forward close personal tie australia regard personal tie tribunal recognises primary visa applicant family tie namely brother australian citizen parent australian resident residing holland primary visa applicant claim close relationship tribunal note review applicant notification tribunal august 2003 would absent australia 12 month 22 primary visa applicant absent australia continuous period 5 year since left permanent resident 1989 tribunal find primary visa applicant satisfy requirement subclause 3 hold permanent visa held temporary subclass 976 eta visa last departed australia never gained australian citizenship 23 primary visa applicant reasoned close personal tie australia satisfies subclause 155 212 3 b basis compelling reason existed secondary visa applicant absent australia five year since date last departed australian permanent resident 24 assessing whether tie substantial tribunal mindful guideline set msi 285 resident return visa application made 1 july 1999 see 4 4 substantial tie australia 4 4 28 people last departed australia without permanent visa last departed temporary visa holder policy intention compelling reason continuous absence 5 year since last departing australia permanent resident 4 4 29 term compelling defined legislation ordinary meaning applies 25 departmental policy relation applicant absent australia 5 year state far relevant matter4 4 30the actual assessment compelling reason absence varies according whether applicant applying australia overseas application made overseas see paragraph 4 4 31 4 4 36 application made australia see paragraph 4 4 37 4 4 39 application made overseas 155 212 3 b 4 4 31there two test relating offshore applicant meet substantial tie requirement absent australia 5 year reg 155 212 3 relates reg 155 212 3 b relates applicant australian permanent resident australian citizen last 10 year travelled australia temporary visa example eta visitor visa since last holding permanent visa australian citizenship 4 4 32those people last left australia either australian permanent resident australian citizen must demonstrate compelling reason absent australia continuous period 5 year immediately application 26 tribunal regard primary visa applicant statement submitted review application stating secondary visa applicant may first experienced health problem 1988 primary visa applicant first entered granted permanent residence australia 1984 10 october 1989 granted subclass 155 visa expired 20 september 1994 primary secondary visa applicant departed australia subclass 155 visa 1989 returning 1999 676 eta visa primary visa applicant lodged subclass 155 visa application department hague office 29 august 2002 nearly 8 year primary visa applicant visa expired 27 tribunal considered primary visa applicant claim supporting documentation tribunal note 1989 urgent compelling reason primary secondary visa applicant depart australia rather stated compelling compassionate reason returning australia within valid time subclass 155 visa due death illness secondary visa applicant father died 1995 one year expiry subclass 155 visa secondary visa applicant illness diagnosed 1996 two year expiry subclass 155 visa tribunal note primary visa applicant absent australia continuous period 5 year since date grant recent permanent visa 28 considering available evidence regard policy tribunal find balance primary visa applicant fails satisfy criterion clause 155 212 3 b regulation tribunal satisfied reason provided primary visa applicant constitutes compelling reason intended msi referred 29 tribunal found compelling compassionate reason primary visa applicant absence australia tribunal find visa applicant fails meet criterion subclause 115 212 3 therefore follows primary visa applicant secondary visa applicant satisfy clause 155 212 schedule 2 regulation given finding made tribunal alternative affirm decision review tribunal note visa applicant currently australia decision30 tribunal affirms decision review finding visa applicant entitled grant return residence class bb visa |
Cheng v Waverley Council [2016] NSWLEC 1289 (30 June 2016).txt | cheng v waverley council 2016 nswlec 1289 30 june 2016 cheng v waverley council 2016 nswlec 1289 30 june 2016 last updated 13 july 2016land environment courtnew south walescase name cheng v waverley councilmedium neutral citation 2016 nswlec 1289hearing date 20 june 2016date order 12 july 2016decision date 30 june 2016jurisdiction class 1before pearson cdecision see paragraph 41 catchword development modification demolition existing dwelling construction new dwelling height setback amenity impact impact viewslegislation cited environmental planning assessment act 1979land environment court act 1979waverley local environmental plan 2012cases cited tenacity consulting v warringah 2004 nswlec 140category principal judgmentparties cheng cheng applicant waverley council respondent representation counsel m n hammond applicant solicitor mr h lu luminous legal applicant m e whitney wilshire webb staunton beattie lawyer respondent file number 2016 154117 formerly 10210 2016 publication restriction nojudgmenton 25 november 2015 waverley development assessment panel delegate respondent council granted development consent demolition existing dwelling construction new part two part three storey dwelling swimming pool 35 portland street dover height site development consent 252 2015 subject condition including condition 2 required following design change proposal shall amended follows comply objective waverley dcp 2012 preserve city view adjoining premise east overall height development lowered reduced level rl71 3 ahd b comply objective waverley dcp 2012 north south side setback rear three storey section development approximately 11 18m length provide setback 1200mm c preserve amenity adjoining site 1 8m high obscure glass privacy screen installed side elevation rear western deck floor level pool copping level exceed reduced level rl61 4 ahd e height front boundary fence match level front boundary fence 33 portland street proposed covered walkway 3m height 6 9m length deleted f preserve acoustic amenity adjoining premise north 33 portland street proposed plant room housing air conditioning condenser unit hot water unit relocated positioned directly opposite south facing window 33 portland street amendment approved council prior issue construction certificate theenvironmental planning assessment act 1979 25 january 2016 applicant lodged application unders 96 1a theenvironmental planning assessment act1979 |