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Wright & Anor v Cardinia Shire Council [2022] VBAB 58; (9 May 2022).txt

wright anor v cardinia shire council 2022 vbab 58 9 may 2022 last updated 24 may 2022building appeal board victoriabuilding act 1993bab case 453806appealcatchwordsappeal appeal pursuant tos 144 1 thebuilding act 1993against refusal council reg 80 thebuilding regulation 2018to consent proposed construction garage maximum average wall height 3600mm along northwest boundary lieu 3200mm maximum wall height 4590mm setback 980mm lieu 1 297m northeast boundary applicantsnadine wright jason stephen subject land owner respondentcardinia shire councilfirst interested partybrodie turner owner 51 clark road lang lang second interesteddwayne harvey kelly harvey owner ofparties19 baker street lang lang relevant municipalitycardinia shire councilsubject land53 clark road lang lang 3984beforephillip davy chairperson marie otteren peter bettess member hearing typeon papersdate hearing3 february 2022date determinationand orders9 may 2022citationwright anor v cardinia shire council 2022 vbab 58determination ordershaving considered submission information placed board determines 1 pursuant tos 149 1 thebuilding act 1993 act decision respondent refuse report consent dated 8 october 2021 set aside substituted board decision consent proposed shed maximum average wall height 3600mm along northwest boundary maximum wall height 4590mm setback 980mm northeast boundary 2 liberty apply question cost subject liberty exercised within 14 day date determination _______________________ ________________________chairperson registrarreasonsbackground1 allotment located residential estate property township lang lang 53 clark road subject land area 701m² width approximately 17m depth approximately 41m subject land located amongst property mostly similar size exception contain allotment larger subject land ambience area residential estate home built boundary existing dwelling outbuilding sited accordance withpart 5of thebuilding regulation 2018 regulation 2 proposed construct shed property dimension 8 8m long 7 4m wide metal gable roof shed external wall height 3 6m height top central roof 4 59m proposed use shed storage caravan trailer equipment vehicle proposal therefore shed maximum wall height average wall height 3600mm along northwest boundary lieu 3200mm maximum wall height 4590mm setback 980mm lieu 1 297m northeast boundary 3 applicant applied respondent report consent respect proposal respondent rejected applicant application applicant sought appeal refusal respondent reg 80 regulation reduced side setback proposed shed site address submission applicant4 applicant justified application lodged respondent following way existing driveway line proposed shed site location dwelling allow vehicle access shed location b shed located rear property disrupt current street view c shed located rear also keeping shed local area proposed shed impact neighbouring property current prescribed streetscape local area e purpose proposal construct garage storage caravan height 3 6m required applicant submit unable locate garage due access restriction 5 reference relevant decision guideline minister guideline mg 12 mg 12 following comment offered applicant short applicant considered proposed height garage appropriate taking consideration objective decision guideline 6 particular respect mg 12 decision guideline h applicant believe clearly demonstrated wall height result disruption streetscape 7 applicant also point interested party oppose proposal aspect proposal submission respondent8 8 october 2021 respondent refused application applicant report consent 9 respondent submits subject land 718m² width 17m considered large enough cater proposed garage shed setback title boundary applicant offered respondent option wall height 1m setback applicant responded advising suitable due location existing access way subsequently requested application determined favour 10 respondent also referred discussion applicant respect alternative design considered achieves compliance relevant regulation alternative also caters applicant need contends respondent however applicant rejected alternative requested respondent determine application 11 respondent submits benefit hindsight applicant may caused construction onsite dwelling different location enable subject building garage achieve setback title boundary 12 respondent contends proposal satisfy decision guideline set mg 12 set analysis application mg 12 wall boundary mg 12 objective ensure location length height wall boundary respect existing preferred neighbourhood character limit impact amenity existing dwelling b respect objective respondent responds follows proposed design respond appropriately objective respect existing preferred character neighbourhood c short respondent satisfied proposed height garage appropriate taking consideration objective decision guideline preferred neighbourhood character identified lang lang township strategy however existing neighbourhood character still respected submits respondent building area reasonable height distance boundary respondent belief siting shed approved would set precedent area would encourage building sited similar manner e respondent submits applicant identified allotment area proposed similar wall height f specifically respondent considers respect mg 12 preferred character area setback away boundary predominantly based restriction building envelope associated subject land restriction associated subject land required setback 2 5m boundary encumbered two year date occupancy permit issued respondent acknowledges occupancy permit issued however date occupancy permit 19 october 2020 therefore building envelope still encumbers land refusal regard construction building along boundary also regarding additional 400mm additional average height maximum height 4 59m rear setback 0 98m proposed height regard slope subject land subject land abut side rear lane height required screen box gutter 13 moreover respondent considers matter interpretation decision guideline f g h read together based word case reason approval must regard decision guideline f g h enable support proposed dispensation 14 respondent make following submission applicant provided wall height result disruption streetscape respondent submits applicant considered streetscape regard subject regulation application based mg 12 considered proposed wall height may result significant impact amenity existing dwelling nearby allotment based building envelope introduced however comment relating amenity obtained owner existing dwelling nearby allotment indicated objection proposal guideline g h shown applicable decision guideline g applicant provided response guideline submits respondent submits land subject building envelope approved planning permit requiring 2 5metre setback northwest boundary 4m setback rear northeast boundary guideline would met proposal within approved building envelope envelope indicates 3 6m high wall acceptable b decision guideline h applicant appropriately responded guideline h submits respondent submits allotment subject relevant neighbourhood character objective policy statement set relevant planning scheme promotes increased wall height along boundary c respondent concludes applicant demonstrated proposal approved based decision guideline f g h submission first interested party second interested parties15 interested party indicated content proposal applicant findings16 board basis submission evidence provided party considers appeal applicant upheld decision respondent refuse report consent set aside short find evidence support view proposed height garage appropriate taking consideration objective substance thedecision guidelinesunder mg 12 regard note respondent understands preferred neighbourhood character identified respondent lang lang township strategy view existing neighbourhood character respected present proposal 17 accept evidence submitted respondent view building area reasonable height distance boundary consequence reject respondent assertion siting shed approved circumstance would set precedent area would encourage building sited similar manner accept view applicant shed located rear property disrupt current street view evidence panel indicates shed located rear also keeping shed local area 18 persuaded argument respondent relation decision guideline f h inclusive find respect decision guideline h wall result disruption streetscape 19 see also significant first interested party second interested party oppose proposal aspect proposal applicant dated 9 may 2022

Lipman Pty Ltd v Empire Facades Pty Ltd (formerly known as Empire Glass and Aluminium Pty Ltd) [2017] NSWCA 217 (31 August 2017).txt

lipman pty ltd v empire facade pty ltd formerly known empire glass aluminium pty ltd 2017 nswca 217 31 august 2017 last updated 11 september 2017court appealsupreme courtnew south walescase name lipman pty ltd v empire facade pty ltd formerly known empire glass aluminium pty ltd medium neutral citation 2017 nswca 217hearing date 23 august 2017decision date 31 august 2017before mccoll ja 1 macfarlan ja 2 gleeson ja 3 decision 1 grant leave appeal 2 direct applicant file notice appeal form draft notice appeal white book within seven day 3 appeal dismissed 4 applicant pay respondent cost court catchword contract dispute resolution clause provided progression senior executive negotiation expert determination litigation relation dispute party final binding nature expert determination qualified party given notice appeal within specified timeframe right litigate relation dispute determination expert resolve dispute whether litigation clause read subject pre condition invalid expert determination resolve dispute legislation cited supreme court act 1970 nsw 101 2 e case cited badgin nominee pty ltd v oneida ltd 1998 vsc 188cessnock city council v aviation leisure corporation pty ltd 2012 nswsc 221empire glass aluminium pty ltd v lipman pty ltd 2017 nswsc 253legal general life australia ltd v hudson pty ltd 1985 1 nswlr 314lipman pty ltd v emergency service superannuation board 2011 nswca 163category principal judgmentparties lipman pty ltd applicant empire facade pty ltd formerly known empire glass aluminium pty ltd respondent representation counsel mr miller sc mr b le plastrier applicant mr faulkner sc respondent solicitor vincent young ccl pty ltd vincent young applicant dentons australia pty ltd respondent file number 2017 111351publication restriction nodecision appeal court tribunal supreme court new south walesjurisdiction equity divisioncitation empire glass aluminium pty ltd v lipman pty ltd 2017 nswsc 253date decision 17 march 2017before ball jfile number 2016 380549 note theuniform civil procedure rule 2005provide rule 36 11 unless court otherwise order judgment order taken entered recorded court computerised court record system setting aside variation judgment order dealt byrules 36 15 36 16 36 17and36 18 party particular note time limit fourteen day inrule 36 16 judgmentmccoll ja agree gleeson ja macfarlan ja agree gleeson ja gleeson ja application leave appeal appeal leave granted concern final binding character determination expert appointed dispute resolution clause building contract applicant lipman pty ltd lipman seek leave appeal order primary judge ball j 17 march 2017 dismissing lipman application permanent stay dismissal proceeding commenced respondent empire facade pty ltd empire formerly known empire glass aluminium pty ltd lipman respect dispute subject earlier expert determination empire glass aluminium pty ltd v lipman pty ltd 2017 nswsc 253 order interlocutory lipman requires leave appeal supreme court act 1970 nsw 101 2 e backgroundlipman empire party contract dated 21 november 2014 pursuant empire agreed supply lipman design supply construction associated work refurbishment lobby premise 580 george street sydney contract price 3 750 000 excluding gst contract contract contains dispute resolution mechanism cl 42 relevant part dispute resolution clause provide follows 42 1 notice disputeif difference dispute together called dispute party arises way connection subject matter thesubcontract including adisputeconcerning asubcontract superintendent direction b claim either party shall hand registered post give thesubcontract superintendenta written notice ofdisputeadequately identifying providing detail thedispute clause 42 2 provides dispute referred nominated senior executive meet undertake genuine good faith negotiation view resolving thedisputeor agree writing method resolving thedispute thedisputeis resolved party agreed method resolving thedispute within specified period cl 42 3 requires thedisputeshall referred expert determination nature expert determination process dealt cl 42 4 42 10 clause 42 11 42 12 provide follows 42 11 determination expertthe determination expert must writing b substituted relevant direction subcontract superintendent ii final binding unless party give notice appeal party within 15 business day determination c given effect party unless reversed overturned otherwise changed procedure following subclauses 42 12 litigationif determination expert resolve dispute subject clause 42 11 either party may commence proceeding relation dispute clause 42 14 provides cl 42 survive termination thesubcontract part p general condition annexed contract included form expert agreement term relevantly provide cl 7 decision bindingunlessprovided subcontract expert determination dispute final binding main contractor subcontractor emphasis original dispute arose empire lipman concerning performance subsequent termination contract notice dispute issued party pursuant dispute resolution clause contract required cl 42 dispute referred senior executive negotiation subsequently expert determination expert appointed contract entered agreement party dated 4 october 2016 expert agreement form part p general condition contract including cl 7 referred 10 two expert determination made expert 29 november 2016 setting amount subject award expert found favour lipman amount 106 943 63 19 december 2016 empire solicitor gave notice appeal accordance cl 42 11 day empire commenced served proceeding lipman technology construction list equity division seeking agitate issue considered expert notice motion filed 30 january 2017 lipman sought permanent stay dismissal proceeding ground dispute party resolved expert determination open empire agitate issue court dispute primary judge court discretionary power stay proceeding party contract agreed dispute determined expert badgin nominee pty ltd v oneida ltd 1998 vsc 188at 36 gillard j lipman pty ltd v emergency service superannuation board 2011 nswca 163 cessnock city council v aviation leisure corporation pty ltd 2012 nswsc 221at 31 hammerschlag j party competing argument belowlipman identified issue construction whether empire permitted cl 42 litigate court dispute already resolved adversely expert determination pursuant cl 42 11 lipman contended cl 42 permit party litigate dispute unless determination expert resolve dispute word described lipman express condition cl 42 12 lipman argued determination dispute made expert accordance requirement contract expert agreement must follow determination expert resolve dispute purpose cl 42 circumstance neither party entitled litigate dispute lipman preferred construction giving notice appeal cl 42 11 necessary step order party become entitled commence proceeding relation dispute sufficient step condition introductory word cl 42 12 must also met lipman contended condition cl 42 12 determination expert resolve dispute met expert make determination accordance requirement contract made circumstance expert carried task required undertake contract expert agreement response empire advanced two reason litigation procedure cl 42 12 limited recognised avenue challenge determination accordance requirement agreement first party need cl 42 12 invoke common law right challenge expert determination conformity agreement second reference cl 42 11 c appeal procedure could result expert determination reversed overturned otherwise changed natural reading word include proceeding declaration nullity respect expert determination empire contended prescribing appeal cl 42 12 procedure cl 42 11 party expressly agreeing litigation part appeal process relation thedispute word broadly construed judgment belowafter summarising party competing argument primary judge expressed preference interpretation advanced empire convenient set honour dispositive reason full 20 29 20 opinion case party made clear intended appeal process involve rehearing court 21 relevant bear mind question case whether party taken agreed dispute resolution process chosen apply situation others operate parallel normal court process allsop p pointed lipman pty ltd v emergency service superannuation board case compelling reason adopting liberal approach construction relevant clause applies dispute party connected contract question 22 however present case question dispute resolution clause broadly drafted applies dispute party rather issue dispute resolution clause requires although commercial reason thinking party may preferred avoid necessity agitating issue plain also important incorporate appeal process mechanism adopted appeal process involves fresh hearing uncommon particularly context initial decision undertaken specialist tribunal obvious party must taken intended reject process case contract substantial sum money empire liable liquidated damage 3 000 per day capped 30 percent contract sum liquidated damage payable head contract 3 000 per day would commercially unreasonable incorporate substantive right appeal dispute resolution process circumstance 23 opinion difficulty interpretation advanced lipman sit easily word contract really provide right appeal 24 clause 42 11 c state party must give effect determination reversed overturned otherwise changed procedure cl 42 12 lipman right cl 42 12 operates determination resolve dispute sense determination effective made accordance contract therefore void seems odd circumstance party agree would nevertheless give effect reversed overturned otherwise changed cl 42 12 true position right appeal exists respect determination void comply contract difficult make sense agreement party bound determination reversed overturned otherwise changed 25 moreover lipman accepts determination resolve dispute sense contends irrespective operation cl 42 12 one party would liable commence court proceeding declaration determination void comply contract consequently interpretation appeal right conferred cl 42 12 extend circumstance determination expert could challenged relief could obtained claiming determination comply contract court could declare determination void could substitute view expert however could cl 42 12 doubtful party intended confer right appeal effectively expands remedy otherwise available unclear commercial purpose limited right appeal rationale extending remedy party seek party give notice appeal within 15 business day expert determination party entitled commence proceeding determination declared void even given notice appeal 26 addition natural read word determination expert resolve dispute connecting word referring back previous subclause rather word introduce completely new condition exercise right appeal arising service notice appeal within timeframe specified cl 42 11 condition exercise right appeal set cl 42 11 nature appeal set cl 42 12 27 lastly precondition expressed condition right commence court proceeding precondition make sense condition service notice within specified time make le sense condition failure part expert comply requirement contract lipman interpretation question would determined part court proceeding rather precondition commencement 28 lipman submitted interpretation prefer make word subject clause 42 11 redundant already explained case word make clear notwithstanding commencement court proceeding party remain bound determination reversed overturned otherwise changed make commercial sense right general right appeal 29 might thought word precondition merely connecting word party would used word closely aligned connection sought made example might said party serf notice appeal accordance clause 42 11 equally intended right commence court proceeding depended expert failure comply contract might specifically said mr kidd sc appeared lipman acknowledged fact party could expressed clearly little assistance case determining meaning word chose use disposition applicationthe argument lipman court essentially repeated argument primary judge rejected lipman contended opening word cl 42 12 determination expert resolve thedisputethen impose pre condition right litigate word lipman submitted read meaning agreement finding established determination expert resolve dispute according lipman purpose cl 42 12 set option party giving notice appeal litigate dispute rather dispute referred another expert determination two condition satisfied first notice given cl 42 11 within specified time period second found court agreed party expert determination accordance agreement senior counsel lipman submitted construction reference determination expert opening word cl 42 12 mean purported determination expert valid determination made accordance term contract legal general life australia ltd v hudson pty ltd 1985 1 nswlr 314at 336 mchugh ja agree reason given primary judge cl 42 preclude empire litigating dispute subject earlier expert determination honour correctly observed fundamental difficulty construction advanced lipman sit easily word contract really provide right appeal would add following brief observation ordinarily meaning conveyed expression determination expert valid determination thea hudsonsense determination accordance term contract contrast acceptance lipman argument would give expression determination expert cl 42 12 unusual meaning purported determination done accordance term contract determination would also involve giving expression different meaning cl 42 12 meaning expression preceding sub clause cl 42 11 lipman correctly accepted expression determination expert refers valid determination thea hudsonsense cl 42 11 42 12 read together linear sequence expression determination expert plainly intended meaning sub clause opening word cl 42 12 given usual meaning valid determination thea hudsonsense supported term cl 42 11 c sub clause contemplates appeal may result determination reversed overturned otherwise changed curial proceeding may result different outcome determination however nothing cl 42 11 42 12 suggests reversing overturning otherwise changing outcome determination expert contingent upon prior agreement party finding court determination expert nullity lipman preferred construction right appeal cl 42 12 subject pre condition expert determination nullity involves reading opening word cl 42 12 saying purported determination expert resolve dispute valid determination accordance contract unreasonable unnatural reading cl 42 12 inconsistent language cl 42 12 would substantially constrain right appeal party expressly agreed finally insofar lipman contended honour construction would unbusinesslike consequence agree cl 42 11 b qualifies final binding nature expert determination appeal procedure cl 42 12 expressly contemplates party commencing proceeding relation thedispute present case unlike dispute resolution clause considered court inlipman pty ltd v emergency service superannuation board 2011 nswca 163 include sub clause like litigation cl 42 12 present case party may taken intended progression different chosen method dispute resolution cl 42 senior executive negotiation expert determination litigation expert determination resolve dispute either party give requisite notice appeal within specified timeframe consistent language cl 42 3 speaks dispute referred expert determination dispute resolved expert determination nothing unbusinesslike giving effect bargain party chosen conclusion ordersin view lipman demonstrated error honour construction dispute resolution clause cl 42 contract matter fully argued grant leave appeal appeal dismissed cost propose following order 1 grant leave appeal 2 direct applicant file notice appeal form draft notice appeal white book within seven day 3 appeal dismissed 4 applicant pay respondent cost court amendments11 september 2017 3 last line amend 101 1 r read 101 2 e

Eden Construction Co Pty Ltd v Grigor [2016] NSWCATAP 182 (10 August 2016).txt

eden construction co pty ltd v grigor 2016 nswcatap 182 10 august 2016 last updated 15 may 2017civil administrative tribunalnew south walescase name eden construction co pty ltd v grigormedium neutral citation 2016 nswcatap 182hearing date 8 june 2016date order 10 august 2016decision date 10 august 2016jurisdiction appeal panelbefore patten principal memberd robertson senior memberdecision 1 appeal application leave appeal dismissed 2 order made tribunal confirmed 3 appellant pay respondent cost appeal agreed assessed cost ordinary basis except additionally incurred respondent becoming obliged brief new counsel hearing appeal payable full indemnity basis catchword building case claim quantum meruit justified evidencelegislation cited civil administrative tribunal act 2013civil administrative tribunal rule 2014cases cited damberg v damberg 2001 nswca 87 2001 52 nswlr 492friend v brooker 2009 hca 21 2009 239 clr 129henderson automotive technology pty ltd liq v flaton management pty ltd 2011 vsca 167 84 acsr 93lumbers v w cook builder pty ltd 2008 hca 27 2007 232 clr 635skilled group ltd v csr viridian ltd 2012 vsc 290category principal judgmentparties eden construction pty ltd appellant warwick robert grigor respondent representation j cameron applicant gracie instructed bygadens lawyer respondent file number ap 16 02219decision appeal court tribunal nsw civil administrative tribunaljurisdiction consumer commercial divisiondate decision 16 december 2015before p boyce senior memberfile number hb 13 11162reasons decisionthis appeal decision tribunal senior member p boyce published 16 december 2016 tribunal dismissed application gave direction regarding cost notice appeal itemised following ground appeal least arguably raise question law member erred misdirecting sic mind reasonable person could expected pay service rendered b member misconstrued evidence finding value claim zeroc learned member misconstrued evidence erred finding letter 15 october two tear sic contract accepting one part letter dismissing finding influenced member decision c question law e constitute error law tribunal decision occupying 35 page followed 3 day hearing 3 4 april 1 july 2015 case concerned residential building work remote country location carried eden construction co pty ltd builder warwick grigor owner building site yaouk building site cooma monaro shire council area builder based queanbeyan appellant commenced carrying construction work building site 2010 appellant continued carry construction work site july 2012 proceeding commenced 2013 consumer trader tenancy tribunal cttt upon abolition tribunal proceeding continued civil administrative tribunal preliminary determination 10 december 2013 cttt found applicant licensed carry residential building work entitled claim pursuant contract work performed respondent party compromised claim respect work performed prior 29 december 2011 applicant may pursue amount way quantum meruit equitable basis work done 1 january 2012 decision appeal senior member determined appellant entitled payment way quantum meruit notice appeal filed appellant specify amount sought rather seek order decision set aside case heard applicant entitled compensation original application appellant sought payment amount 331 414 92 amount sought appellant reduced opening hearing 230 591 97 set paragraph 28 31 tribunal decision appeal made follows 1 labour related claim 56 205 36 2 plant equipment claim 156 722 52 3 associated expense claim 17 664 11 tribunal recorded appellant written submission amount sought expressed alternative 173 975 94 including plant hire 18 832 04 without plant hire deduction amount sought respect plant equipment hire calculated 155 143 90 submission filed reply hearing appellant pressed appeal respect disallowance plant equipment claim thus amount issue appeal 155 143 90 opening appellant case hearing mr j cameron appeared appellant said two issue viz 1 whether expectation respondent pay truck back hoe hire whether hire charge included appellant charge labour 2 event liability arising truck back hoe hire quantum liability issue dealt para 82 86 reason given 82 nevertheless applicant continued engaged respondent day labour basis invoiced respondent work invoice 14 34 basis claim relied charge previously made agreement applicant respondent arising letter 10 october 2010 legal relationship party 83 letter 29 january 2012 applicant sought unilaterally change basis charge introducing paragraph 3 amount amended mr henderson letter forwarded respondent consideration respondent reply proposal however applicant continued employed respondent paid invoice presented applicant invoice 34 84 applicant asserts respondent took step communicate rejection expectation tribunal satisfied find 29 january 2012 agreement applicant respondent would provide day labour invoice submitted date paid respondent applicant rewarded supply day labour 85 applicant business includes earthmover equipment operator mr filardo carried day labour personally equipment site assist applicant perform task required remoteness site 200 km applicant yard dictated fulfilling work agreed applicant respondent required equipment stored applicant site isno evidence tribunal applicant work time mr filardo site equipment used necessary assertion applicant respondent known would expected pay dry hire equipment respondent contemplation notion completely odds former agreement respondent 29 january 2012 term continuing provision day labour date tribunal satisfied applicant established respondent could reasonably expected known applicant expected paid charge included invoice 35 respondent terminated applicant service 86 tribunal satisfied applicant proposal hire equipment rejected respondent project manager mr henderson considered applicant letter 29 january 2012 applicant belated claim arose applicant service terminated respondent reward applicant use equipment stored site claimed dry hire applicant contemplation respondent noted 2010 appellant commenced carry construction work respondent building site two letter appellant respondent october 2010 relevant present dispute first 7 october 2010 dear mr grigor ashley vale manor forecast work expense october december 2010 keeping expectation regarding monthly cash flow provide herewith approval estimated cost related construction basement structure top ground level including slab top meeting last night messrs dowse selleck view trash minor detail drawing structural architectural consensus mostly prevailed apart minor issue also agreed precondition going ahead mr selleck particular visit site thursday 14th october ass bearing capacity ground cbr rating release hold point set inspection test plan copy provided mr dowse tuesday 5th october also asked mr dowse whether done costing project compared forecast costing appear done point time may fortuitous however instruct mr dowse work costing piece mind want seen either overcharge undercharge work turning costing worked construction basement task anticipate even good intent purpose take u least 22 december 2010 weather permitting course christmas closedown milestone achieved would happy soffit false work left place resumption activity mid january 2011 thus enabling concrete fully cure stripping form cost material incidental required complete milestone enable orderly forecast make appropriate budget allowance estimated worked following dig stockpile excavation ground slab including 0 700mm past line working space say 14 3m2 x 1 65 339 29m3 18 87 m3 6 402 51 b dig form pour perimeter foundation 50 890 linear metre x 0 600 wide x 0 300 thick 9 160m3 487 50 m3 4 465 50 c dig form internal thickening beam slab support 32 87linear metre long x 0 2 deep x 0 4 wide 2 62m3 487 50 1 277 25 form perimeter supply fix reinforcement supply concrete pump ground basement slab 12 735mx12 710 161 86m2 197 65 m2 31 991 62 e erection formwork supply fix reinforcement pour concrete perimeter wall basement 50 890m long x 0 170m wide x 2 4m high 20 76m3 987 45 m3 20 499 46 f erection formwork supply fix reinforcement pour internal wall 25 76 metre combined length x 0 150 thick x 2 4 high volume 9 28m3 987 45 m3 9 163 53 g erect formwork form suspended slab basement 161 86m2 387 65 m2 62 745 02 h supply fix reinforcement supply pour concrete161 86m2 197 65m2 31 991 62 incidental say 6000 00 j sub total 174 536 52 k add gst 17 453 65 1 total cost 191 990 17the costing extracted based upon previous project ingebyra carried 2008 9 costing also compatible previous estimate project given indecember 2007 copy enclosed advised however raw material cement like increase 21 october 7 5 increase passed quote managed keep pre increased level end year think left missed item query please hesitate contact u trusting keeping expectation concurrence appreciated looking forward service meet site leisure earliest convenience sincerelyces filardo signed managing directoreden construction co pty ltdthe letter dated 15 october 2010 dear mr grigor ashley vale manor quotation concrete work construction quotation dated 7th october 2010 keeping undertaking mr henderson hereby confirm total lump sum part worksthat associated civil structural work packagethere still issue minor design detail need yet resolved mr henderson architect mr dowse aware considered allowed accordingly price detail provided messrs dowse architect shall effect would alter price lump sum price fixed end december 2011 increase c p beyond 2011 labour material reasonable adjustment cost negotiated u around coffee table scope work outlined includes excavationfor foundation pier slab accordance latest construction drawing presided mrdon selleck site morning b supply fixing reinforcement c supply pour finish concrete work inclusive labour material ii pumping equipment iii formwork wall iv falsework suspended floor tanking water proofing please note detail came concept meet designer approval basement perimeter wall propose thus wrap around outside wall 0 002 heavy duty plastic similar vapour barrier floor slab ii protect plastic single iayer 5mm equivalent villa board sheetingiii supply install 100mm subsoil drain connect outfall line building creek iv supply place 200mm thick 20 40mm crushed gravel drainage surface water e construction reinforced concrete staircase monolithic finish two access basement first floor area f clean reinstate landscape effected area work ease reference total cost based upon pro rata previously accepted quotation dated 5th october 2010 cost inclusive previous quote therefore quotation work calculated thus 1033 81m2 1 084 07 m2 1 120 722 40 add gst 10 112 072 24 total cost work 1 232 794 60further would also offer service men machinery help mr henderson completing task truss roofing well fitting window door scaffolding rock work etc required rate day work required follows 32 ton excavator 200 00 ex gst ce foreman 80 00 ex gst carpenter 55 00 ex gst skilled labourer 40 00 ex gst machinery operator 40 00 ex gst 24 ton tipper work around site cost fuel back hoe front end loader ditto fuel small tool equipment costtrusting keeping expectation query please hesitate contact u earliest convenience sincerelyces filardo signed managing directoreden construction co pty ltdthe relationship party continued dispute arose 2011 noted cttt determined subject compromise agreement towards end year extent recapitulated 29 january 2012 another letter appellant respondent dear mr grigor ashleighvale construction reconciliation cost work thank letter dated 17th january 2012 response isnoted effectively concert mr henderson cancelled contract 15th october 2010 notion contract quote may basement part contract quote 15th october intent purpose approved amended along way certified explained letter competitive contract price indeed account point paramount importance need clarified set record straight clear abused position either site representative cooma council contractor site misunderstanding animosity u goingforward construction project appropriate transparency outline following 1 costingof project far caused cost blow excel work outi provided site total payment made eden construction co pty ltd tax invoice 19 515 329 95 attachment amount included tax invoice 1 2 day work prior contract date 15th october 2010 therefore sum 25 300 00 come handwritten notation added equation sake exercise fair maurie itshould counted within cost blowout underground beam work total cost including variation 1 2 3 work associated basement tax invoice 3 tax invoice 14 330 110 65 attachment b actual cost however incurred eden construction co pry ltd period relation construction work basement excluding wage 347 436 32 attachment c henceforth cost exception tax invoice 1 2 associated removal old house prior peripheral attributed work related underside beam caused much controversy council engineer animosity within relationship whilst cost blow attributable maurie design theunderground work fairness maurie however credit must given innovative idea designing underside beam support pier although cost extra 250k side coin solid structure quake proof account stand test time beyond regrettably view overrun costing cause induced prompted rescind mycontract prematurely record actual cost construction basement work incurred eden 1 867 93m2 opposed 1 084 07m2 quoted october 2010 wish discus glen dowse maurie think merit saying relation cost please reconsider still prepared reconfirm price 15 october 2010 contract would save several hundred thousand whichever alternative may opt choose2 material equipment site light discussion yesterday stocktaking jointly carried one would think fairly expect maurie come reasonable compromise fair equation cost compensation original cumulative cost 100 000 presented schedule based upon actual statement timber new 3 new condition rate given october 2010 remain unchanged due lapse time however would like approve 30th january 2012 following rent cost accommodation ce 200 00 per week b hire rate back hoe front end loader 110 00 h exclusive gstc hire rate 24 ton tipper truck 110 00 hexclusive gstd labour hire unchanged 15 october 2010 e excavator hire unchanged 15 october 2010 200 hour initial added given fact benefit equipment cost fuel since september 2010 one would think fairly expect bit good part would reciprocated time around especially need minor earthwork greatly reduced somewhat trusting order give due consideration looking forward continue long lasting harmonious relationship maurie sincerelyces filardo signed managing directoreden construction co pty ltdcc maurie hendersonon copy letter 29 january 2012 evidence reproduced sum 110 00 h paragraph 3 b 3 c ruled sum 200 hour handwritten end 3 e evidence apparently accepted tribunal alteration made mr ferguson employee respondent indicating item 3 b 3 c agreed give rise seems issue case accordance mr cameron opening recognised learned member para 26 reason 26 applicant submits primary issue determined tribunal whether respondent ought known applicant expected paid service whether defendant take opportunity reject service b value service service referred paragraph seem claim reflected para 29 29 particular plant equipment claim hire back hoe truck excavator 30 week 5 625 00 per week totalling 151 875 00 weekly rate made hire charge 5 day week back hoe 250 00 per day truck 275 00 per day excavator 600 per day le allowance payment made 9 400 00 plus gst added 14 247 50 applicant claim entitled 156 722 50 equipment hire dispute tribunal whether mr henderson authority approve charge rate proposed appellant tribunal made finding mr henderson authority view nothing turn basis seems clear respondent agree term letter 29 january 2012 reason tribunal considered basis upon appellant claim could succeed 74 applicant contends building work carried respondent benefitted back hoe tipper site period 29 january 2012 1 july 2012 therefore expectation respondent ought known would pay dry hire equipment 75 applicant respondent contractual relationship prior 1 january 2012 based term set letter dated 7 october 2010 work carried invoiced applicant paid respondent invoice 3 14 clearly based term applicant letter 7 october 2010 invoice referred letter cttt ordered part preliminary finding matter 10 december 2013 part dispute resolved compromise party dated 29 december 2011 clearly agreement existed party carrying work term applicant letter dated 7 october 2010 80 applicant asserts entitled bring claim respondent known applicant expected financially compensated use plant equipment offered applicant free expectation arises applicant letter dated 29 january 2012 proposing lump sum contract work carried rate basis plant material argument presented applicant respondent fully set previously reason decision 81 however respondent refutes reasoning relies fax 17 january 2012 clearly state position ended discussion matter took place prior 29 december 2011 matter resolved order cttt applicant letter 29 january 2012 another attempt applicant salvage involvement future building work throwing respondent applicant previously aggressively pursued respondent proposal set letter 15 october 2010 rejected respondent 82 nevertheless applicant continued engaged respondent day labour basis invoiced respondent work invoice 14 34 basis claim relied charge previously made agreement applicant respondent arising letter 10 october 2010 legal relationship party 83 letter 29 january 2012 applicant sought unilaterally change basis charge introducing paragraph 3 amount amended mr henderson letter forwarded respondent consideration respondent reply proposal however applicant continued employed respondent paid invoice presented applicant invoice 34 84 applicant asserts respondent took step communicate rejection expectation tribunal satisfied find 29 january 2012 agreement applicant respondent would provide day labour invoice submitted date paid respondent applicant rewarded supply day labour 85 applicant business includes earthmover equipment operator mr filardo carried day labour personally equipment site assist applicant perform task required remoteness site 200 km applicant yard dictated fulfilling work agreed applicant respondent required equipment stored applicant site isno evidence tribunal applicant work time mr filardo site equipment used necessary assertion applicant respondent known would expected pay dry hire equipment respondent contemplation notion completely odds former agreement respondent 29 january 2012 term continuing provision day labour date tribunal satisfied applicant established respondent could reasonably expected known applicant expected paid charge included invoice 35 respondent terminated applicant service 86 tribunal satisfied applicant proposal hire equipment rejected respondent project manager mr henderson considered applicant letter 29 january 2012 applicant belated claim arose applicant service terminated respondent reward applicant use equipment stored site claimed dry hire applicant contemplation respondent consequence reasoning appellant claim dismissed mr cameron challenged tribunal finding reasonable expectation respondent would pay disputed hire charge relation paragraph 82 tribunal reason pointed evidence letter 10 october 2010 suggested erroneous reference letter 15 october 2010 reproduced obviously error unclear u whether reference intended letter 7 october 2010 15 october 2010 event submitted correctly think contractual relationship party payment hire back hoe truck subsequent january 2012 simply unresolved matterthe appellant submission relied onlumbers v w cook builder pty ltd 2008 hca 27 2007 232 clr 635and opening word para 53 paragraph part reason gleeson cj read full concept free acceptance invoked majority full court whatever exact scope commonly related defendant take reasonable opportunity open reject proffered service situation lumber present case similarly sought characterised incontrovertible benefit son undertaken provide lumber lumber agreed pay son principle relied upon builder extends claim builder lumber difficult see would extend also work performed numerous sub contractor engaged son later builder much perhaps physical construction work site performed many physical material brought site supplied sub contractor builder different position vi vi lumber explained broad colloquial sense conferring benefit lumber lumber accepting benefit legal sense footnote omitted inlumbersthe quantum meruit claim made different context effect building contract largely performed company related contracting builder without knowledge home owner gleeson c j rejected claim reason given para 54 54 argued lumber received windfall would unconscionable refuse pay builder work question characterisation proceeds upon assumption respective right obligation lumber son builder reason already stated justified far lumber relieved liability pay full agreed price work done property appears principally consequence builder failure make pursue prompt claim son builder failure pursue claim son present proceeding claim pursued may well resulted claim son lumber alternatively may consequence unexplained attitude son letter written mr malcolm cook early 1999 procedural evidentiary deficiency case make impossible conclude conduct lumber refusing pay builder unconscionable enriched expense son party enriched expense builder son member court gummow hayne crennan kiefel jj also rejected claim concluding reason issue 124 account taken contractual relationship lumber son several observation may made 125 first lumber accepted benefit expense builder would unconscionable retain lumber made contract son either fully performed party son made arrangement agreement builder either fully performed either agreement son lumber agreement arrangement son builder fully performed owed one party paid matter party relevant agreement failure performance either agreement reason conclude builder claim lumber party builder contract 126 builder dealing lumber builder claim lumber price work labour builder performed money builder may paid relation construction builder claim point request lumber directed builder builder work pay money reference whether lumber accepted work builder accepted benefit money paid irrelevant irrelevant distracts attention legal relationship three party lumber son builder impose lumber obligation pay builder would constitute radical alteration bargain party struck right obligation party thus assumed warrant 127 second observation made general identification right obligation party matter requires close attention particular fact circumstance case necessarily requires close attention contractual obligation owes concept free acceptance referred gleeson cj passage quoted discussed court appeal indamberg v damberg 2001 nswca 87 2001 52 nswlr 492and learned member quoted relevant passage decision appeal 191 acceptance could found subsequent evaluation benefit consent take corresponding non acceptance would refusal take acceptance could also found expression willingness take benefit provided request provided corresponding non acceptance would expression unwillingness take benefit provided request provided 192 goff g jones law restitution 5th ed 1998 18 19 discussing need establish provision service benefited defendant say defendant contractually bound may benefited service rendered circumstance court hold liable pay case hefreely acceptsthe service view held benefited service rendered reasonable man known plaintiff rendered service expected paid yet take reasonable opportunity open reject proffered service moreover case cannot deny wasunjustlyenriched said recognition free acceptance defined principle objectionable erodes right person determine choice hasrequestedservices said chosen gained abenefit principle free acceptance recognised defendant may compelled pay service asserts honestly perversely benefit may indifferent caring one way whether service rendered defendant may concede service beneficial plead important thing spend money exceptional circumstance burden defendant reasonable man immediately tell plaintiff perverse indifferent important thing money cannot deny gained benefit true judge explicitly adopted principle freeacceptance principle enshrined concept satisfactory explanation decision recognised plaintiff claim service requested benefited defendant 194 goff jones law restitution 5th ed 63 discussing principle plaintiff act officiously conferring benefit defendant cannot succeed restitutionary claim say judge jurist sought express limiting principle number different way statement principle recovery denied plaintiff isofficious hethrusthimselfon defendant intervened without adequate justification expression officiousness mere volunteer thrust another simply form legal shorthand conceals conclusion defendant required pay benefit plaintiff know defendant neither solicits desire take risk defendant pay benefit conferred risk head cause complain hope disappointed consequently irrelevant whether defendant gained incontrovertible benefit tribunal also quoted fromfriend v brooker 2009 hca 21 2009 239 clr 129at para 7 general bare fact conferral benefit upon another suffice establish obligation repay expenditure providing benefit second proposition concept unjust enrichment may provide link otherwise appears variety distinct category liability may assist ordinary process legal reasoning development legal principle concept unjust enrichment principle taken sufficient premise direct application particular case set passage fromhenderson automotive technology pty ltd liq v flaton management pty ltd 2011 vsca 167 84 acsr 93at para 56 cited skilled group ltd v csr viridian ltd 2012 vsc 290at para 29 even claim restitution properly brought primacy given legal relationship exist party moreover aslumbers v cookmakes clear agreement party scope agreement almost invariably govern relationship party independently question called incontrovertible benefit unconscionability principle considered context lengthy period relationship party governed letter expressly denied appellant right paid dry hire tipper truck back hoe front end loader moreover item equipment already building site 200 kilometre appellant yard equipment remained site throughout period 29 january 2012 party terminated relationship period appellant invoiced respondent work done made mention claim hire charge respect two item equipment doubt appellant wanted paid hire 29 january 2012 letter 29 january evidence view basis appellant expectation receiving payment unless proposal made letter 29 january 2012 accepted term last two paragraph letter make clear view appellant seeking reasonably unreasonably impose new term relationship respondent failure accept term left appellant several option could removed equipment could ceased perform work respondent could continued work without benefit new term face appellant chose third option including invoice 34 relationship terminated sought recover hiring charge circumstance opinion occurred case constitute free acceptance unjust enrichment tribunal correct reject claim appeal dismissed note notice appeal appellant sought leave appeal basis decision tribunal equitable weight evidence reason set consider decision equitable weight evidence therefore application leave appeal also dismissed appeal brought decision consumer commercial division tribunal amount claimed dispute proceeding exceeded 30 000 circumstance pursuant torule 38 2 thecivil administrative tribunal rules2014

Jones v Return to Work Corporation of South Australia (Mader Contracting Pty Ltd) (No 2) [2021] SAET 216 (8 November 2021).txt

jones v return work corporation south australia mader contracting pty ltd 2 2021 saet 216 8 november 2021 last updated 8 november 2021jones v return work corporation south australia mader contracting pty ltd 2 2021 saet 216south australian employment tribunaljones ethanvreturn work corporation south australiaandmader contracting pty ltd 2 jurisdiction south australian employment court application directionscase no 01780 2019 et 20 02508hearing date 26 october 2021reasons fordecision anddecision honour deputy president judge rossidelivered 8 november 2021catchwords respondent sought order facilitate applicant attending two scheduled medical appointment employer supporting respondent application applicant opposing order sought basis already attended medical assessment arranged respondent submitting assessment unreasonable held proposed assessment reasonably required order respondent employer able properly present case whether applicant sustained injury compensable circumstance order sought made application respondent applicant pay cost application basis acted unreasonably conduct proceeding within ambit ofs 106 3 thereturn work act 2014 held applicant raise valid argument attend arranged appointment applicant acted unreasonably conduct proceeding enlivened exercise discretion conferred bys 106 3 thereturn work act 2014 applicant pay 50 respondent cost including respondent liability pay employer cost application direction event jones v return work corporation south australia mader contracting pty ltd 2021 saet 132dasreef pty ltd v hawchar 2011 hca 21billett v nominal defendant 1996 66 sasr 500wilson v cutovic 1979 23 sasr 77casly smith v district council stirling 8 1989 151 lsjs 135stace v commonwealth 1989 sasc 1508 1989 51 sasr 391 hill v worker rehabilitation compensation corporation 1997 191 lsjs 300matusha v return work corporation south australia 2020 saet 95storey v return work corporation australia 2021 saet 212australiancompetition consumer commission v cg berbatis holding pty ltd 2003 hca 18 2003 214 clr 51northern territory v sangare 2019 hca 25representation counsel applicant self representedrespondent mr doyleother party employer mr p walshsolicitors applicant self representedrespondent minter ellison lawyersother party employer dw fox tucker lawyersthe issue1 application direction dated 18 october 2021 reference circumstance set affidavit mr geoff wark solicitor dated 25 october 2021 evidentiary material put court issue whether court make order would require mr jones applicant substantive proceeding attend medical appointment appointment made respondent return work corporation south australia corporation examined dr gary champion rheumatologist 18 january 2022 dr dilip kapur pain specialist 10 february 2022 2 employer mader contracting pty ltd mader support application 3 mr jones opposed making order sought indicated attend directed court 4 reason follow order made would facilitate mr jones attending scheduled appointment background5 much relevant background set injones v return work corporation south australia mader contracting pty ltd jones 1 6 reason decision understood context background reasoning finding set injones 7 mr jones claiming ongoing weekly payment medical expense multiple severe injury ongoing impairment claimed arisen employment mader 2 8 mr jones assessed purpose treatment least eight medical practitioner multiple field specialty including general practice occupational medicine rehabilitation medicine neurosurgery orthopaedic surgery rheumatology 3 mr jones foreshadowed relying upon expert opinion least majority doctor trial 9 corporation rejected claim entitled weekly payment medical expense basis claimed injury arisen mr jones employment mader circumstance diagnosis claimed injury whether work activity mader significant contributing cause claimed injury important issue resolved court trial 10 decision injonesrelated application mader mr jones assessed request dr champion rheumatologist dr kapur pain specialist 11 time submitted mader whilst consistency position corporation mader compensability injury claimed mr jones may continue contended medical report commissioned point time corporation occupational physician dr munn dr hwang rheumatologist dr reiter inadequate history recorded based upon provided corporation commissioning letter mr jones time consultation work duty performed mr jones circumstance mader contended entitled obtain assessment reference proper history work performed 12 mader submitted medical evidence refers inconsistency pain experience reported mr jones would expected objective evidence medical condition may suffering circumstance mader contended entitled mr jones assessed pain specialist 13 injones mader application dismissed lack merit concerning submission would appropriate mr jones assessed dr champion dr kapur application dismissed exercise court discretion mader failed first approach corporation request relevant medical assessment arranged accordance 181 rtw act noted corporation foreshadowed assessment mr jones dr reiter evidence time corporation would decline put dr reiter aspect history advanced mader relation dr kapur evidence court mader explained position corporation requested arrangement made corporation mr jones assessed dr kapur reference history work activity raised mader 14 court also took account mr jones raised objection time reviewed dr reiter reviewed occupational physician although indicated preference dr hwang rather dr munn 15 course reason decision injones addressed factual aspect gave rise corporation entitlement mr jones medically reviewed majority case proceed hearing tribunal concern disputed claim compensation rtw act case involve medical evidence frequently differing expert medical opinion important matter diagnosis need treatment extent ongoing impairment extent incapacity work may often subject varying expert opinion corporation routinely arranges medical assessment worker continuing analysis 181 helpful consider context factual aspect matter tribunal case since rejection claim compensation mr jones undergone significant medical investigation undergone surgery whilst claim form mr jones identified arm neck lower back affected diagnosis referred bilateral carpal tunnel syndrome comparison corporation mader confronted numerous severe injury impairment ongoing incapacity referred earlier reason specific incident work asserted mr jones cause claimed injury impairment radiological investigation cervical spine interpreted medical expert revealing degeneration much advanced would expected someone born 24 january 1986 corporation informed court arranging mr jones reviewed dr munn dr reiter evidence currently court entitled mr jones reviewed doctor time previous assessment mr jones dr reiter provided report recommended certain test undertaken would relevant consideration whether mr jones suffering rheumatological condition could explain symptom impairment incapacity multiple part body reported mr jones informed court since preparation report test recommended dr reiter performed mr jones baldly asserted court result confirm suffering relevant rheumatological condition corporation entitled circumstance mr jones reviewed dr reiter result test provided consideration 4 16 aspect matter support position mader assessment pain specialist would reasonable would assistance court trial 17 claim form dated 14 january 2019 refers mr jones stopped work month earlier 2 september 2018 result claimed injury multiple part body way bilateral carpal tunnel syndrome injury neck arm lower back attributed gradual onset date 18 report dated 17 april 2019 occupational physician dr josh munn reported relation claimed bilateral carpal tunnel syndrome nerve conduction study indicated evidence condition finding described dr munn incongruous mr jones symptom relation claimed injury cervical spine dr munn recorded report 27 march 2019 mr jones become scared prognosis provided dr bhandari rehabilitation physician result mr jones ceased work returned full time study dr munn also considered degree foraminal stenosis level c5 6 demonstrated radiologically inconsistent report mr jones work activity mader period 12 month total 19 dr reiter indicates doubt causal link widespread symptom reported employment considers important exclude rheumatological cause 20 since delivery reason decision injones appointment made mr jones reviewed dr munn mr jones attended appointment dr munn since provided report dated 31 august 2021 suggestion dr munn impeded way carrying review assessment mr jones 21 nevertheless mr doyle set detail oral submission corporation chronology appointment made mr jones medically examined corporation contends obstructive process instance appointment made intimation solicitor mr jones time would attend subsequent change date accommodate suggested availability mr jones position would attend suggested relevant history predates decision injones although basis concern expressed corporation generally mindful prior delivery reason decision injoneson 1 july 2021 situation complicated mader application dismissed situation post 1 july 2021 complication 22 day following delivery reason injones solicitor mader conformity reason wrote solicitor corporation requesting corporation make arrangement mr jones assessed dr kapur context understanding time corporation would arrange mr jones reviewed dr reiter 23 corporation able proceed intended review assessment dr reiter resides melbourne circumstance covid 19 pandemic lockdown result corporation accepted request mader arranged mr jones examined dr champion 18 october 2021 light reason injonesand subsequent application mader solicitor corporation wrote mr jones advised corporation made appointment assessed dr kapur 29 september 2021 24 direction hearing 22 september 2021 mr jones informed party proceeding court intend attend scheduled examination dr kapur 29 september 2021 scheduled examination dr champion 18 october 2021 essence objection raised mr jones time appointment necessary circumstance corporation previously made arrangement doctor essentially bidding mader despite mr jones benefit reason injonesand assurance given court 25 august 2021 solicitor representing mr jones would attend scheduled appointment dr kapur 29 september 2021 25 position mr jones reiterated 22 september 2021 circumstance court exploring whether impasse could resolved agreement party corporation foreshadowing application would seek order court court referred mr jones process referred decision injones pointed dismissal mader application based upon unreasonableness associated selecting dr champion dr kapur event application order corporation would need carefully consider valid objection proposed examination 26 corporation filed foreshadowed application direction 18 october 2021 seeking order court facilitate attendance mr jones medical examination undertaken dr champion dr kapur 27 submission corporation mader upon hearing oral argument consistent 28 reference made substantial potential liability claim pursued mr jones average weekly earnings rate relation entitlement weekly payment would 2 999 20 gross per week mr jones returned work since 2 september 2018 widespread substantial ongoing impairment accepted court compensable contended likely give rise substantial lump sum payment permanent impairment could result mr jones treated seriously injured 21 rtw act 29 accept claim potentially give rise large liability 30 mader also submitted mr jones rendered wholly unfit work ongoing basis also potential implication mader provide suitable employment accordance 18 rtw act 31 accept mader legitimate interest outcome proceeding injones stated matter whether mr jones entitled compensation way weekly payment payment medical expense currently dispute primarily reference whether able prove work related injury basis incapacity work need treatment medical assessment fundamental claim compensation decision corporation potential significantly affect right entitlement mr jones potential affect liability mader relation impact upon premium claim weekly payment accepted tribunal would surprising parliament intended decision would immune review tribunal 5 32 mader reiterated submission initially made time application effect current medical evidence provide explanation symptom reported mr jones 33 corporation additionally submitted mr jones acted unreasonably conduct proceeding noting content reason injones initial intimation would attend examination dr kapur refuse attend without valid reason failure advance valid reason attend examination dr champion 34 difficult follow submission made mr jones opposing order would require attend scheduled appointment lack focus relation submission advanced corporation mader referred matter logical connection application court submission involved bald assertion bar table without appropriate evidence put court course submission mr jones asserted would undergoing surgery january detail provided court arrangement made surgery month january 2022 instead mr jones referred appointment cartwright neurosurgeon 18 november 2021 view scheduling spinal surgery hospital also referred appointment 6 december 2021 foot specialist discus bilateral foot surgery 35 satisfied evidence court surgery performed month january 2022 indeed specific date evidence establish even surgery required surgery cannot proceed date would allow attend scheduled appointment given scheduled appointment two month date hearing argument surgery date proven set satisfied proposed surgery urgent 36 mr jones also referred element coercion corporation mader relation scheduled appointment respect objected none established 37 mr jones referred considers poor legal representation past none substantiated logical connection complaint expressed refusal attend scheduled medical appointment 38 mr jones submitted requirement examined rheumatologist given examined previously dr reiter submitted written report investigation undertaken whether suffering rheumatological condition could sent dr reiter victoria could still provide supplementary report basis suggested require assessed dr champion would unreasonable submission overlook appropriateness review mr jones person result investigation 39 relation dr kapur submission essentially medical basis requiring assessed pain specialist consideration40 reason set injonesand also addressed earlier reason corporation entitled mr jones examined rheumatologist time rheumatologist may review result investigation undertaken since assessment undertaken dr reiter satisfied examination need undertaken person physical examination undertaken dr reiter 17 january 2020 included examination various part body view ascertaining whether swelling joint body corporation entitled mr jones examined person rheumatologist evaluate whether evidence swelling joint addition dr reiter examined mr jones also addressing extent tenderness various part body whether sign elicited upon physical examination consistent traumatic injury degenerative process progressive rheumatological condition result investigation since undertaken may inform assessing rheumatologist matter physical examination undertaken circumstance unavailability dr reiter proceeding dr champion sensible alternative 41 essentially reason advanced corporation mader summarised earlier reason also reasonable appropriate mr jones examined pain specialist evidentiary material put court suggests reported way symptom impairment inconsistent evidence nature severity particular injury condition 42 respect dr champion dr kapur accept submission mader circumstance case trial involving different picture demand job performed mr jones presented corporation doctor assessed court trial would assisted expert opinion reference mader position role discharged mr jones whilst employed aspect important part necessary assumption made assessing doctor relevant court evaluation whether expert opinion admissible weight attached opinion 6 43 injonesi noted order worker required attend particular medical examination must established circumstance arrangement made reasonable includes matter location date time whether particular requirement patient examination performed whether invasive aspect examination 7 44 case matter raised mr jones unreasonableness particular detail scheduled examination suggestion undergoing surgery january 2022 set earlier reason reject submission satisfied evidence court could reasonably lead conclusion required attend scheduled appointment reference surgery performed treat claimed work injury 45 injonesi addressed source power conferred court order worker attend scheduled medical examination 8 46 circumstance exercise discretion order made directs mr jones attend scheduled appointment dr champion dr kapur 47 mr jones advance arguable case order made relation dr kapur benefit legal advice appointment originally scheduled 29 september 2021 reference advice court informed would attend appointment arguable basis advanced mr jones explain change position since time acted unreasonably 48 relation dr champion mr jones acknowledged since report dr reiter undergone test ascertain whether suffering rheumatological condition view reason set position necessary physical examination rheumatologist unreasonable 49 finding mr jones acted unreasonably taken account history matter including difficulty experienced number month mr jones medically assessed number variety medical expert mr jones relies upon potential liability claim succeed mr jones benefit reason injonesand legal advice reference surgery january 2022 without foundation 50 observed full bench tribunal recently instorey v return work corporation australia 9 matter potential adverse order cost proceeding act issue two judgment called first tribunal must make evaluative judgment whether party acted unreasonably frivolously vexatiously purpose 106 3 b c act judgment made adversely party tribunal must make discretionary judgment deciding whether reduce amount award cost party would otherwise entitled decline make award cost favour party make award cost party involve process reasoning partly analytical partly intuitive 10 51 find mr jones acted unreasonably conduct proceeding within ambit 106 3 iv rtw act enlivens exercise discretion referred 106 3 c rtw act 52 relation aspect exercise judgement taken account time hearing argument mr jones self represented also taken account various time legally represented received legal advice concerning proposed arrangement examined dr kapur 53 justice served order mr jones pay 50 cost corporation related application direction cost include corporation liability pay mader cost application regard find reasonable mader regard legitimate interest proceeding separately represented upon hearing oral argument 54 certify hearing oral argument fit counsel 55 note mr jones worked since 2 september 2018 whilst impecuniosity factor relevant whether adverse cost order made 11 may taken account order come effect number medical report obtained mr jones support claim compensation specialist jurisdiction permitted know medical expert may require assurance professional fee give oral evidence paid agreeing legally represented involvement solicitor may provide assurance mr jones currently self represented possibility adverse order cost payable could impede mr jones ability present case trial balance convenience prospect 56 circumstance order mr jones pay cost adjudicated tribunal default agreement event orders1 mr ethan jones ordered attend medical appointment arranged corporation medically examined dr gary champion rheumatologist 18 january 2022 2 mr ethan jones ordered attend medical appointment arranged corporation medically examined dr dilip kapur pain specialist 10 february 2022 3 mr ethan jones pay 50 cost corporation including corporation liability pay cost mader contracting pty ltd relation application direction dated 18 october 2021 event 4 mader contracting pty ltd entitled cost application direction dated 18 october 2021 paid corporation amount cost adjudicated tribunal default agreement hearing oral argument certified fit counsel 5 liberty granted party make application ancillary order court 1 2021 saet 132 2 jonesibid 3 5 detail multiple injury claimed 3 jonesibid 6 4 jonesibid 108 110 5 jonesibid 129 6 dasreef pty ltd v hawchar 2011 hca 21 7 reference made decision ofbillett v nominal defendant 1996 66 sasr 500 wilson v cutovic 1979 23 sasr 77 casly smith v district council stirling 8 1989 151 lsjs 135 stace v commonwealth 1989 sasc 1508 1989 51 sasr 391 hill v worker rehabilitation compensation corporation 1997 191 lsjs 300 matusha v return work corporation south australia 2020 saet 95 35 36 per rossi dpj 8 see particularly conclusion analysis 99 9 2021 saet 212 10 ibid 13 16 quotation end passage fromaustraliancompetition consumer commission v cg berbatis holding pty ltd 2003 hca 18 2003 214 clr 51at 82 per kirby j 11 northern territory v sangare 2019 hca 25

Quant Australia Pty Ltd [2015] FWCA 8237 (30 November 2015).txt

quant australia pty ltd 2015 fwca 8237 30 november 2015 2015 fwca 8237fair work commissiondecisionfair work act 2009s 185 enterprise agreementquant australia pty ltd ag2015 6746 quant australia pty ltd amwu abbotsford cub site collective agreement october 2015 october 2018manufacturing associated industriescommissioner roemelbourne 30 november 2015application approval quant australia pty ltd amwu abbotsford cub site collective agreement october 2015 october 2018 1 application made approval enterprise agreement known thequant australia pty ltd amwu abbotsford cub site collective agreement october 2015 october 2018 agreement application made pursuant tos 185of thefair work act 2009 act made quant australia pty ltd agreement single enterprise agreement 2 satisfied requirement ofss 186 187and188as relevant application approval met agreement cover employee employer however taking account factor insection 186 3 3a satisfied group employee fairly chosen 3 automotive food metal engineering printing kindred industry union known australian manufacturing worker union amwu bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 note agreement cover organisation 4 agreement approved 30 november 2015 accordance withs 54 operate 7 december 2015 nominal expiry date agreement 16 october 2018 commissionerprinted authority commonwealth government printer price code g ae416864pr574502 var _gaq _gaq _gaq push _setaccount ua 9592794 1 _gaq push _trackpageview function var ga document createelement script ga type text javascript ga async true ga src http document location protocol http ssl http www google analytics com ga j var document getelementsbytagname script 0 parentnode insertbefore ga

RACQ Operations Pty Ltd [2013] FWCA 402 (25 January 2013).txt

racq operation pty ltd 2013 fwca 402 25 january 2013 2013 fwca 402fair work commissiondecisionfair work act 2009s 185 application approval single enterprise agreementracq operation pty ltd ag2012 14341 racq motoring service vehicle inspection motoring advice enterprise agreement 2013 2015manufacturing associated industriescommissioner simpsonbrisbane 25 january 2013application approval racq motoring service vehicle inspection motoring advice enterprise agreement 2013 2015 1 application made approval enterprise agreement known theracq motoring service vehicle inspection motoring advice enterprise agreement 2013 2015 agreement application made pursuant tos 185of thefair work act 2009 act made racq operation pty ltd agreement single enterprise agreement 2 satisfied requirement ofss 186 187and188of act relevant application approval met 3 automotive food metal engineering printing kindred industry union known australian manufacturing worker union amwu bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 act note agreement cover organisation 4 agreement approved accordance withs 54of act operate 1 february 2013 nominal expiry date agreement 31 july 2015 commissionerprinted authority commonwealth government printer price code j ae899437pr533287

Her Majesty's Attorney-General for the State of Queensland v The Honourable Justice Munro & Ors [1996] IRCA 653 (20 December 1996).txt

majesty attorney general state queensland v honourable justice munro or 1996 irca 653 20 december 1996 decision 625 96 industrial law jurisdiction industrial relation commission finding interstate industrial dispute non compliance log claim served employer teacher whether demand log fanciful extravagant incapable giving rise industrial dispute effect subsequent action state union obtain improved condition enterprise bargaining agreement registered state law workplace relation act 1996 formerlyindustrial relation act 1988 s 101and 412 qi 96 1051 majesty attorney general state queensland v honourable justice munro honourable deputy president harrison honourable commissioner jones honourable commissioner frawley australian education union qi 96 1052 majesty attorney general state queensland v honourable justice munro honourable deputy president maher honourable commissioner lewin honourable senior deputy president riordan australian education union coram wilcox cj spender moore jj place brisbane date 20 december 1996 order industrial relation court australia qi 96 1051 queensland district registry matter application writ prohibition certiorari majesty attorney general state queensland applicant honourable justice munro honourable deputy president harrison honourable commissioner jones honourable commissioner frawley first respondent australian education union second respondent coram wilcox cj spender moore jj place brisbane date 20 december 1996 minute order court order 1 application dismissed note settlement entry order dealt order 36 industrial relation court rule industrial relation court australia qi 96 1052 queensland district registry matter application writ prohibition certiorari majesty attorney general state queensland applicant honourable justice munro honourable deputy president maher honourable commissioner lewin honourable senior deputy president riordan first respondent australian education union second respondent coram wilcox cj spender moore jj place brisbane date 20 december 1996 minute order court order 1 application dismissed note settlement entry order dealt order 36 industrial relation court rule reason industrial relation court australia qi 96 1051 queensland district registry matter application writ prohibition certiorari majesty attorney general state queensland applicant honourable justice munro honourable deputy president harrison honourable commissioner jones honourable commissioner frawley first respondent australian education union second respondent qi 96 1052 matter application writ prohibition certiorari majesty attorney general state queensland applicant honourable justice munro honourable deputy president maher honourable commissioner lewin honourable senior deputy president riordan first respondent australian education union second respondent coram wilcox cj spender moore jj place brisbane date 20 december 1996 reason judgment court two application writ prohibition certiorari remitted court high court australia unders 44of thejudiciary act 1903ands 412of theworkplace relation act 1996 formerly theindustrial relation act 1988 case applicant attorney general state queensland second respondent australian education union aeu first respondent case member australian industrial relation commission airc commission submit order court participated argument fact matter qi 96 1051 arises service log claim employer technical education tafe teacher new south wale queensland tasmania aeu served log 30 november 1993 cover letter demanding compliance within five day log lengthy detailed divided twelve part entitled preliminary mode employment classification salary qualification professional development selection appeal attendance hour duty workload employee facility allowance expense leave absence part time employment personal travelling removal expense dispute settlement termination employment apparently none employer acceded demand conducting inquiry matter 2 december 1994 commissioner frawley airc one first respondent made finding unders 101of theindustrial relation actthat industrial dispute existed second respondent relevant employer application leave appeal full bench commission dispute finding made employer queensland new south wale application came full bench comprising three first named first respondent except relation argument implied limitation power application unsuccessful 15 september 1995 full bench made order following term circumstance grant leave appeal respect much matter appeal pertains jurisdictional point raised whether finding dispute infringes implied limitation however merit appeal determine confirm decision frawley c finding dispute confirmed otherwise determination commission leave appeal refused appeal dismissed fact qi 96 1052 similar 20 april 1993 australian teacher union atu predecessor aeu served log claim letter demand relevant employer state claim made behalf employee working teacher government education system school college excluding tafe log also lengthy detailed contained 70 clause dealing aspect teacher working condition letter demand required compliance within seven day apparently compliance atu notified commission industrial dispute 22 june 1993 commission made decision matter new log claim served similar earlier log main difference modification monetary claim employer failed accede demand atu made application commission finding dispute 28 november 1994 senior deputy president riordan one first respondent qi 96 1052 found industrial dispute existed aeu employer new south wale tasmania queensland relation non compliance demand log claim employer queensland new south wale sought leave appeal finding application came full bench constituted three first named first respondent 15 september 1995 full bench handed decision made order circumstance grant leave appeal respect much matter appeal pertains jurisdictional point raised whether finding dispute infringes implied limitation however merit appeal determine confirm decision riordan sdp associated variation finding dispute otherwise determination commission leave appeal refused appeal dismissed proceeding 20 march 1996 attorney general state queensland commenced two proceeding court filing high court two notice motion order nisi writ prohibition certiorari gummow j remitted application court 4 april 1996 heard together consent mr j douglas qc mr r jones appeared attorney general matter mr k bell appeared aeu mr douglas submitted commission exceeded jurisdiction making finding dispute case advanced four base submission claim made log claim fanciful according principle laid state public service federation ex parte attorney general western australia 1993 hca 30 1993 178 clr 249 spsf ii evidence established fact dispute involving queensland new south wale employee non compliance log claim capable giving rise genuine dispute iii evidence established log claim abandoned iv commission misdirected relevant onus proof deal base separately claim fanciful arguing proposition mr douglas took u claim made log claim referred way example salary claim tafe log proposed salary structure commencing 100 000 employee classified teacher 1 rising 250 000 executive teacher 5 casual rate 120 150 per hour sought school log claimed rate modest well current salary rate ranged 70 000 180 000 per annum log proposed fewer working hour present generous leave necessary go detail arguing ground mr douglas recognised decision court attorney general qld v riordan 1995 63 ir 317stood way case concerned log claim made behalf ambulance officer 326 331 wilcox cj spender j discussed submission claim made log plainly fanciful noted submission depended heavily spsf summarised content three log claim considered case 327 328 quoted extensively reason member high court spsf referring fact two case court summarised argument counsel course quoted passage joint judgment gibbs cj mason wilson brennan deane dawson jj queen v ludeke ex parte queensland electricity commission 1985 hca 55 1985 159 clr 178at 182 cited counsel respondent union passage stated legitimate objection genuiness dispute created non compliance log claim serving log claimant wished create industrial dispute would give commission jurisdiction make award point union serving log claim seek condition award making provision 331 riordan wilcox cj spender j said wage condition sought two log claim may fairly described optimistic even extravagant unlikely say least framed demand believed attainable short term think fairly described providing framework negotiation determining whether log claim regarded fanciful helpful calculate cumulative cost acceding separate demand compare result cost currently borne employer nobody would expect every demand granted full notion ambit requires union framing log claim exceed optimistic expectation relation item log benefit may provided different way example claimant cannot know advance whether commission minded fix relatively high wage rate special allowance relatively low wage rate substantial allowance necessary claimant make claim relation item sufficient cover likely award respect item selected preferment commission think passage applies equally present case mr douglas criticised word exceed optimistic expectation read context attainable short term unaccepted demand usually lead negotations arbitration immediate negotiated agreement everything claimed would rarely expected even optimistically would union ordinarily expect arbitrated outcome would satisfy claim short term although may satisfied long term wilcox cj spender went state belief spsf case log claim held fanciful found industrial dispute counsel present case informed u believe still position point significance comment made riordan foot 331 second third log spsf relation comment mention mr douglas appeared spsf informed u mr mason qc argued case behalf new south wale submit high court claim made second third log fanciful accept statement clear mr douglas turn accepts member high court examined question concluded see toohey j member court agreed point 300 301 see need discus detail claim made present two log claimed salary condition much higher enjoyed teacher think warrant epithet fanciful evidently wish aeu elevate general level teacher remuneration bringing closer enjoyed tertiary educated professional legitimate industrial objective moreover log must understood representing claim achieved time seems u riordan claim high represent comprehensible comprehensive framework negotiation necessary arbitration log stand marked contrast undiscriminating four paragraph spsf log high court held incapable giving rise industrial dispute evidence lack dispute support aspect case mr douglas referred evidence placed commission first item evidence contained statement made richard paul irving officer new south wale department school education referred conversation robert durbridge atu industrial officer meeting working party work organisation related pedagogical issue held sydney may 1993 mr irving said told mr durbridge new south wale government would strongly oppose move federal award covering new south wale government school teacher said mr durbridge replied atu interested gaining federal coverage victorian school teacher interested covering new south wale government teacher mr irving asked mr durbridge clarify atu intended proceed shortly afterwards mr irving received letter david robson federal secretary atu reading previously notified department matter listed riordan sdp june 2 pleased clarify view best way proceed response request intention day ask commission make finding dispute atu respondent employer direct party confer experience commission normal practice treat finding paper dispute largely technical matter eligibility service refusal grant claim right party preserved argue revocation dispute challenge jurisdiction commission apply commission refrain hearing pursuant tosection 111 1 g suggest expedite matter june 2 refusal grant claim made writing advance tender exhibit includes refusal suggest submission oppose finding dispute reserve right set support direction confer undertake refer matter nsw officer discussion arranged time place convenient nsw party wish supplant existing industrial consultation negotiation process established state territory service log claim although course named party dispute side atu wish discus suggestion could contact federal industrial officer rob durbridge office mr douglas also referred evidence service log claim teacher union registered legislation queensland new south wale conducted negotiation respective government relation possible enterprise bargaining agreement intended registered state law relevant time office queensland new south wale branch aeu held people held equivalent office state union seems u evidence fall short demonstrating absence real dispute aeu queensland new south wale government concerning condition employment teacher proposal consultation negotiation state level incompatible existence interstate industrial dispute national organisation employer several state rule aeu confer measure autonomy state branch interstate industrial dispute might resolved piecemeal way separate award applying different area employment member organisation see queen v isaac ex parte state electricity commission victoria 1978 hca 33 1978 140 clr 615at 619 627 631 635 negotiation state level might assist achievement result think mr robson saying letter significant although said atu wish supplant existing consultation negotiation process state level pressed claim interstate industrial dispute arisen non compliance log claim relation conversation mr irving mr durbridge make two observation first conversation took place time service either relevant log situation may subsequently changed second intimation informal occasion view one official appear intended formal statement organisation position mr durbridge authority make statement abandonment understand applicant argument aeu abandoned claim subsequently acquiesced state union pursuing improvement member condition employment enterprise bargaining queensland new south wale government already dealt argument negotiation state level aeu acquiesce state union entering enterprise bargain state level mean claim gave rise interstate dispute abandoned nationally registered organisation may wish procure federal award settlement interstate industrial dispute providing substantially improved condition member throughout australia yet prepared recognise take long time especially existing federal award order provide immediate relief member albeit limited may prepared acquiesce state union obtaining benefit without regarding benefit adequate onus proof counsel applicant contend party asserting existence genuine dispute onus establishing fact commission support cite passage spsf necessary set contention disputed go submit reasonable person could properly accept union really wanted claimed log evidence offered union service log claim rejection employer commission could properly satisfied union met relevant onus standard proof decision overturned ground alone although advanced separate argument seems u submission repeat applicant argument fancifulness improved repetition different name order opinion merit argument advanced applicant application dismissed certify preceding thirteen 13 page true copy reason judgment court associate dated 20 december 1996 appearance counsel applicant j douglas qc r jones solicitor applicant crown solicitor state queensland first respondent appear counsel second respondent k bell solicitor second respondent holding redlich date hearing 3 december 1996

The Australasian Meat Industry Employees Union v Network Personnel Pty Ltd [2007] AIRC 1012; (30 November 2007).txt

australasian meat industry employee union v network personnel pty ltd 2007 airc 1012 30 november 2007 2007 airc 1012ag845893 pr980054australian industrial relation commissionworkplace relation act 1996s 170lw prereform act appl n settlement dispute certified agreement australasian meat industry employee union theandnetwork personnel pty ltd c2007 3517 network personnel pty ltd cobram australasian meat industry employee union cobram meat processing agreement 2005 odn ag2005 8843 ag845893 meat industrycommissioner graingermelbourne 30 november 2007dispute entitlement guaranteed minimum weekly payment period plant maintenance shutdown decisionintroduction 1 12 september 2007 australasian meat industry employee union amieu applicant filed application commission requisite form r37 dispute resolution process conducted relation dispute pre reform agreement network personnel pty ltd network respondent regarding dispute application cl 4 3 network personnel pty ltd cobram australasian meat industry employee union cobram meat processing agreement 2005 ag845893 agreement matter subject conciliation proceeding commission 23 october 2007 unsuccessful party agreed matter proceed arbitration 2 question party agreed would put commission arbitration follows employee entitled guaranteed minimum weekly payment clause 4 3 2 network personnel pty ltd cobram australasian meat industry employee union meat processing agreement 2005 period plant recent maintenance shutdown circumstance employee accrued four week annual leave accordance clause 6 2 1 ii employee agreed advance annual leave accordance clause 6 2 3 3 arbitration heard commission 29 november 2007 amieu represented mr g bird union network represented mr silberer respondent legislation 4 section 170lw theworkplace relation act2006 act provides follows 170lwprocedures preventing settling disputesprocedures certified agreement preventing settling dispute employer employee whose employment subject agreement may commission approves empower commission either following settle dispute application agreement b appoint board reference described section 131 purpose settling dispute 5 clause 2 1 e schedule 7 post reform act provides relation pre reform ie 28 march 2005 agreement follows 2 continuing operation pre reform certified agreement old provision 1 subject schedule following provision pre reform act continue apply relation pre reform certified agreement despite repeal amendment made theworkplace relation amendment work choice act 2005 e section 170lw agreement 6 dispute party agreement pre reform agreement within meaning 2 1 e act certified commissioner grainger commission 10 january 2006 1 agreement relevantly provides follows 1 cl 2 1 1 2 condition employment2 1 contract employment 1 employee shall informed engaged nature engagement whether regular daily hire timeworker casual timeworker regular daily hire pieceworker casual pieceworker 2 cl 2 5 cl 2 6 2 5 deduction 1 employee attending performing duty shall except otherwise expressly provided agreement lose pay actual time non attendance non performance 2 employer may deduct payment day part day employee cannot usefully employed industrial action defined act b shortage animal carcass processing attributed adjacent industrial stoppage dispute c breakdown machinery industrial dispute involving employee authority organisation responsible supply electricity water gas sewerage essential continuance meatworks operation employer cannot reasonably held responsible e disruption production arising inspection conducted aqis similar authority 2 6 work performed 1 employer representative may direct employee carry task combination task competence task within limit employee skill competence training consistent classification direction issued employer representative consistent employer responsibility provide safe healthy working environment 2 employee responsibility allotted task normal starting time task 3 work performed agreement shall carried satisfaction employer system rotation employee task operate discretion employer employee must aware requirement standard necessary complete task competently considering request employee change work position major criterion continued performance work standard acceptable employer 3 cl 3 1 cl 3 2 3 1 regular daily hire timeworkersclassificationbase hourly ratehourly rate 90 efficiency bonushourly rate 95 efficiency bonusguaranteed minimum weeksick leave rate per daysick leave rate b per dayslaughterer 15 23 21 57 22 84 500 135 00 140 00labourer 15 03 16 20 16 89 400 100 00 110 00labourer b 13 99 14 29 14 60 400 100 00 100 00learner probation employee 12 69no bonus paidno bonus paidn abonus payment calculated accordance reward success policy appendix agreement3 2 regular daily hire pieceworkersclassificationbase payment per unitadditional efficiency bonustotal unit paid 8 hrsguaranteed minimum weeksick pay rate per daysick leave rate b per daybeef boner slicerper unit 0 75 2 56per unit 76 e b 0 79n 500 140 00 150 00lamb cutting room bonerper unit 0 84 2 07per unit 85 e b 0 58100 500 140 00 150 00saw manper unit 0 84 2 07per unit 85 e b 0 58110 500 140 00 150 00slicerper unit 0 80 1 87per unite b 0 2180 500 100 00 110 00calve mutton boner sliceper unit 0 84 2 07per unit 85 e b 0 58n 500 140 00 150 00 note total unit paid column subject operator producing product employer required specification production level daily basis e b efficiency bonus paid per unit calculated accordance reward success policy appendix agreementall labourer employed vodusek sic 21 october 2005 classified grade labourer 4 cl 4 3 1 cl 2 4 3 guaranteed minimum payment 1 regular daily hire employee present work accordance provision agreement day shall receive minimum four 4 hour pay based ordinary time rate applicable employee classification 2 regular daily employee present work accordance provision agreement whole pay week entitled receive either total amount money payable pay week work performed guaranteed weekly minimum payment le amount prescribed clause 3 whichever greater event stop work meeting strike employee minimum weekly payment entitlement forfeited equivalent amount payment time stoppage 5 cl 6 1 cl 6 2 6 leave provisions6 1 meaning ordinary pay employee ordinary weekly number hour work prescribed clause 2 8 hour work clause 2 10 shift work calculated ordinary time rate pay plus average additional earnings received employee work performed period respect right leave accrues payment specifically excluded provision agreement b ordinary time rate pay fixed employee work term employment ordinary time rate pay shall deemed average weekly rate earned period respect right leave accrues 6 2 annual leave 1 except otherwise provided agreement every employee casual employee shall end year employment become entitled annual leave four 4 week ordinary pay 2 employee entitled leave loading annual leave 3 employee employer agree annual leave may taken wholly partly advance employee become entitled annual leave 4 annual leave shall given employer shall taken employee expiration period six 6 month date upon right leave accrues 5 except otherwise provided clause payment shall made employer employee lieu annual leave part thereof employee entitled agreement shall payment accepted employee 6 unless otherwise agreed employer shall endeavour give employee least seven 7 day notice annual leave shall taken 7 public holiday provided clause 6 5 public holiday agreement occurs period annual leave taken employee clause period leave shall increased one day respect holiday 8 employment employee become entitled annual leave provided agreement terminated employee taken part leave employer shall deemed given leave worker date termination employment shall forthwith pay worker addition amount due ordinary pay period remaining annual leave 6 cl 7 1 7 consultative arrangements7 1 settlement dispute 1 work shall continue throughout negotiation 2 event dispute department representative concerned shall confer senior supervisor department failing settlement representative department supervisor shall notify work management shall negotiate dispute 3 event department stop work meeting resolution meeting taken senior management delegation two member remaining worker meeting resume without delay 4 failing settlement dispute delegate shall notify union work management may notify employer organisation work management worker department representative representative union appropriate employer organisation shall meet view settling particular dispute 5 agreement still cannot reached matter shall taken commission settlement 6 party reserve right notify commission provision carried 7 employer union agree event dispute concerning termination employee clause 2 1 4 warning dismissal matter taken commission determination employer union agree accept jurisdiction decision commission constituted union support legal action jurisdiction 8 union use best endeavour including right may rule ensure employee member covered agreement cease work engages industrial action threatens action progression matter grievance process 9 industrial action occurs settlement dispute clause complied particular clause 8 2 5 company right withdraw efficiency bonus payment previous working day efficiency bonus paid employee engaged action amieu submission 7 amieu filed following written submission commission 13 november 2007 2 1 matter dispute application agreement referred australian industrial relation commission pursuant section 17olw pre reform workplace relation act 1996 2 applicant respondent matter party network personnel pty ltd cobram australasian meat industry employee union cobram meat processing agreement 2005 3 dispute application agreement relates entitlement employee paid guaranteed minimum weekly payment specified agreement circumstance employer closed plant purpose performing maintenance work 4 question determined commission specified applicant follows employee entitled guaranteed minimum weekly payment clause 4 3 2 agreement period plant recent maintenance shutdown circumstance employee accrued four week annual leave accordance clause 6 2 1 ii employee agreed advance annual leave accordance clause 6 2 3 submission facts5 respondent employer labour meat processing plant cobram 6 term condition employment respondent employee governed network personnel ply ltd cobram andthe australasian meat industry employee union cobram meat processing agreement2005 hereafter agreement 7 may 2007 management representative respondent held meeting attended employee cobram meat processing plant 8 meeting representative respondent informed employee plant would closing period approximately three week representative respondent informed present person leave entitlement would able access entitlement period shutdown however respondent representative also informed present employee leave entitlement would paid period shutdown 9 cobram plant subsequently closed maintenance shutdown application agreement10 clause 4 3 agreement relevantly provides 4 3 guaranteed minimum payment 2 regular daily hire employee present work accordance provision agreement whole pay week entitled receive either total amount money payable pay week work performed guaranteed weekly minimum payment le amount prescribed clause 3 whichever greater event stop work meeting strike employee minimum weekly payment entitlement forfeited equivalent amount payment time stoppage 5 clause shall apply employee pay week pay deducted week day part day accordance clause 2 5 deduction 11 applicant submits clause provides guaranteed minimum weekly payment employee regardless quantum hour work actually worked 12 indeed purpose clause seems provide minimum payment employee circumstance employer unable provide employee usual anticipated amount work given week 13 notwithstanding employee may attended workplace day plant closed maintenance shutdown applicant submits employee nevertheless presented work accordance provision agreement 14 clause 2 6 agreement provides follows 2 6 work performed 1 employer representative may direct employee carry task combination task component task within limit employee skill competence training consistent classification direction issued employer representative consistent employer responsibility provide safe health working environment 2 employee responsibility allotted task normal starting time task 3 work performed agreement shall carried satisfaction employer system rotation employee task operate discretion employer employee must aware requirement standard necessary complete task competently considering request employee change work position major criterion continued performance work standard acceptable employer 15 employee complied obligation agreement specifically clause 2 6 obligation obligation perform work duty within competence directed respondent 16 particular instance employee effectively directed attend workplace specified period 17 clause 4 3 5 agreement provides guaranteed minimum weekly payment apply given week employer entitled make deduction pay pursuant clause 2 5 agreement 18 clause 2 5 agreement provides 2 5 deduction 1 employee attending performing duty shall except otherwise expressly provided agreement lose pay actual time nonattendance non performance 2 employer may deduct payment arty day part day employee cannot usefully employed industrial action defined act b shortage animal carcass processing attributed adjacent industrial stoppage dispute c breakdown machinery industrial dispute involving employee authority organisation responsible supply electricity water gas sewerage essential continuance meatworks operation employer cannot reasonably held responsible e disruption production arising inspection conducted aqis similar authority

W & W [2002] FMCAfam 46 (18 January 2002).txt

w w 2002 fmcafam 46 18 january 2002 last updated 2 july 2002federal magistrate court australiaw w 2002 fmcafam 46family law child residence wish child applicant wrespondent r wfile zc 2910 2001delivered 18 january 2002delivered canberrahearing date 17 18 january 2002judgment brewster fmrepresentationcounsel applicant m burgesssolicitors applicant legal aid office act 4 mort street canberra city act 2601counsel respondent m simpsonsolicitors respondent creaghe lisle st george court 52 54gurwood street wagga wagga nsw 2650orders 1 child c w born 1 march 1989 reside mother 2 mother responsibility day day care welfare development child 3 child contact father follows first half mid year school holiday period b first three week christmas holiday period commencing odd numbered year last three week christmas holiday period commencing even numbered year c telephone contact day 6pm 8pm 4 party share equally cost travel purpose contact end mother pay cost travel father residence conclusion contact period father pay travel cost mother residence commencement contact period 5 party shall inform accident medical emergency relating child soon practicable 6 mother provide father copy school report relation child federal magistratescourt australia atcanberrazc 2910 2001m wapplicantandr wrespondentreasons judgmentintroduction1 matter concern residence child c w c born on1 march 1989 therefore almost 13 year age background2 father mother married 31 july 1983 two child marriage apart c b born on2 april 1983 therefore 18 year age going 19 j born 20 december 1984 therefore aged 17 mother daughter previous relationship j r 22 year age 3 party separated may 1996 litigation concerning residence child family report prepared time indicates b j expressed wish live father particularly case relation b c express wish one way upshot event consent order made 20 february 1997 child would reside father 4 appears order agreed party lived w anticipated mother might move away move eventuated would appear time order actually taken moved b queensland 5 order provided holiday contact three child travelled queensland purpose 1999 b j ceased coming queensland contact occurred mother limited occasion mother w c however continued go queensland holiday contact 6 father married present wife j w two child previous marriage relationship whose date birth appear evidence father say one year older c therefore would aged 13 14 another daughter aged nine 7 future relationship father present wife somewhat uncertain counsellor prepared family report report mr j w considering leaving stress associated litigation implied mr w said evidence would case problem occurred occurred october november year relate later judgment 8 mother contact child always gone smoothly put mildly problem commenced january 1998 mother failed return b contact appears based wish expressed time b live mother upshot family court made order mother return b father 9 july 1999 mother failed return c contact based seems wish expressed c order made mother return c father mother failed recovery order issued order made 16 july 1999 operation stayed 19 july give mother opportunity return c mother return c necessary recovery executed police take result incident contravention application filed father mother ordered enter recognizance abide term court order 10 next problem occurred july 2001 mother failed return c occasion went hiding staying woman refuge brisbane order made c return appears returned without recovery order executed result another contravention application brought mother sentenced two week imprisonment sentence suspended entering recognizance 11 period c return following holiday entirely free incident c attended department community service w unbeknown father although apparently connivance mother via sister 12 next holiday october 2001 c went contact queensland due return 14 october occasion mother put bus b however apparently got bus brisbane contacted salvation army turn contacted police turn contacted mother mother travelled brisbane collected c went stay daughter j home j life c near brisbane apparently remained home time 19 october mother put c bus time leaving brisbane j arranged go rsl club c evening apparent c aware night turned club apparently got bus caught bus back brisbane train c 13 26 october c put bus b got brisbane took train c went j house incident appears perhaps associated illness part c event j put bus following day time get returned w 14 30 october however c caught bus w travelled queensland purpose stole money brother arrived bundaberg 1 november arrangement made return air mother took airport b on4 november mother however left prior departure aircraft c get aircraft last effort made effect return w continued remain queensland enrolled school b go w contact father arrangement party 21 december 8 january discussion15 family law act requires making decision c reside regard best interest paramount consideration father gave evidence c presence household good family dynamic involving sibling step sibling make happier household family understand understand father would want c live purpose suggest reason want c live however whilst irrelevant play subordinate role decision c best interest member family must regard paramount consideration 16 determining c best interest family law act section 68f 2 set number matter regard discus 17 first matter concern wish expressed child factor child maturity level understanding think relevant weight give wish 18 c interviewed m daphne dawson counsellor family court prepared family report matter m dawson reported c adamant wished reside mother response led conclusion c interviewed twice mother spent time father interpolate great deal time would appear evidence admitted love member family even got well mr j w time nevertheless wish reside father 19 reason given wish somewhat inconsistent c spoke mother getting bus october gave reason getting bus returning brisbane firstly sexually abused secondly step sister drug thirdly like stepmother 20 allegation sexual abuse fleshed proceeding appears involve partner c maternal grandmother c mention m dawson reason wanting live father place forced conclude reason something nature rationalisation part c live mother 21 relation second reason clear evidence appears complaint explicitly made m dawson 22 far third matter relationship c stepmother concerned satisfied problem relationship satisfied problem serious think likely reason also nature rationalisation 23 reason c gave m dawson wanting reside mother positive concerning mother loved mother 24 accept m dawson assessment matter satisfied c wish genuine wish cogent evidence wish result manipulation mother strength wish illustrated event october 2001 return significance due course 25 suggested wish may modified least may ambivalence c part acceptance c vote foot order made return father 26 conflicting evidence whether wish modified arrangement made interviewed m dawson circumstance prefer rely report m dawson sure statement made people either made people would want hear report necessarily transitory statement transitory intention might change circumstance change 27 second matter required consider nature relationship child child parent person satisfied c good relationship parent satisfied wish reside mother related breakdown relationship father satisfied reading family report good relationship brother j close relationship sister b 28 according father also good relationship external independent evidence supporting according mother c related indicated problem relation evidence permit firm finding relation evidence family report problem c relationship stepmother already quoted section report say c said got well m j w time repeat notwithstanding believe problem relationship accept serious problem 29 also appears c get well half sister j 30 subsection c section 68f 2 requires consider likely effect change child circumstance including likely effect child separation either parent child person living 31 order made c reside mother separated father sibling b j clear evidence close b accept good relationship j 32 however need looked context two thing relevant first b j left school b 18 whether continue live father household longer term must matter speculation however prepared assume likely remain w c live father would see good deal sibling significant factor isprima faciefor benefit child see much possible sibling close relationship sibling second c interviewed mr dawson living apart sibling time expressed wish would inevitably mean separation sibling 33 c live mother would separated father satisfied good relationship father also significance fact lived father 1996 october 2001 five year significant status quo would require significant substantial reason alter order made c reside father separated mother concern impact may believe moment probably closer mother father return inextricably linked wish due course 34 subsection section 68f 2 requires consider practical difficulty expense child contact parent whether difficulty expense substantially affect child right maintain personal relationship relation direct contact parent regular basis factor case party separated substantial distance however cut way matter c resides difficulty expense relation contact contact occur school holiday 35 accede father application mother accompany c w conclusion contact expense involved contact would increased nevertheless prepared conclude increase expense would actually prevent contact occurring school holiday believe subsection factor weighs either direction 36 subsection e requires consider capacity parent person provide need child including emotional intellectual need believe parent adequate capacity thing however criticism mother deal later part relate aspect case 37 subsection f requires consider child maturity sex background go speak aboriginal people requires consider characteristic child think relevant believe significance case 38 subsection g deal issue violence also subsection j also relevant present case 39 subsection h requires consider attitude child responsibility parenthood demonstrated child parent number criticism mother respect set order magnitude first various incident october november 2001 mother showed marked reluctance keep father informed development c time positively evasive respect deprecated 40 already mentioned allegation sexual abuse appears c raised allegation whilst contact mother october satisfied mother inform father indeed child travel back w without father knowing anything allegation serious dereliction responsibility parent 41 well evasive relation c whereabouts october november mother le forthcoming relation disclosing address significant period time prior october november 42 mother inappropriately involved c issue mother father october november mother took c various organisation detail included legal aid office brisbane b department youth community service c b said c request also appears connived c go department community service w action opinion quite inappropriate issue party case adult issue concern adult child involved way moreover child empowered way mother rightly criticised counsel father simply taking attitude whatever c want c get another example c expressed wish come court time hearing case grandmother would waiting outside prior giving evidence mother acceded request fairness mother conceded inappropriate however concern allowed c come court 43 1998 indicated mother failed return b contact 1999 july 2001 july 2001she failed return c went hiding time appears made real attempt comply court order took damoclean sword period imprisonment hanging head get attempt comply court order serious failure act responsible parent 44 mother also made comment critical j w presence c relates incident recent contact period w mother w altercation j w spoke derogatory term m w father c present degree excused loss self control circumstance j w also behaved inappropriately nevertheless sort conduct deprecated 45 father free criticism mentioned mother bringing c court yesterday b court listening cross examination mother view showed inappropriate attitude part father towards responsibility parent unwise inappropriate involve b albeit 18 year age litigation foreseen possible probable b close relationship sister according family report trying persuade change mind might well relate c detail cross examination mother 46 also initially critical father filing application mother dealt breach court order respect occurrence october november 2001 14 january year filed application withdrawn outset case idea ever filed thought might achieved proceeded would heard residence application may well meant residence case could concluded time available hear assumed reason bringing application mother sent prison irrespective result residence case purpose father avenge may perceived wrong done father however denied motive said application recommended solicitor reflection prepared visit criticism father may innocent victim misconceived action part lawyer 47 subsection k requires consider whether would preferable make order would least likely lead institution proceeding relation child aspect case cause concern c life father possible may run away may attempt thwart returned admittedly made order sought father would difficult thwart return still might possible event would difficult stop running away would inevitably result litigation cannot anyone interest particularly c 48 could rely confidence said told father stepmother friend relation accepting decision attempting subvert mind would ease however confident reported comment necessarily genuine set stone would later stage change mind 49 suggested mother may facilitate contact arises comment made m dawson would force c go contact problem relation future contact could litigation would inimical c best interest however confidence c require forced go see father good relationship issue unlikely arise 50 possible c go live mother may find advantage perceives illusory may change mind wish return live father mother say situation would agree occurring satisfied genuine think order would least likely lead litigation would one provided c reside mother 51 section 68f 2 l requires consider fact circumstance think relevant briefly traverse 52 parent satisfied offer satisfactory accommodation child satisfied ensure child attends school achieves best ability respect believe father fear expressed m dawson family report properly founded 53 satisfied party would comply contact order 54 although mother rightly criticised allowing c dictate convinced situation specific unusual circumstance occurred october november last year satisfied would adopt inappropriately laissez faire attitude towards bringing c conclusion55 decision must make case ultimately distilled balance two factor one hand c wish possible consequence making order accord wish factor indicated paragraph 31 33 39 44 would support contention present order remain 56 c said almost 13 year age 13 exactly six week wish satisfied clear wish satisfied firm interpret wish result inappropriate pressure mother result inappropriate reason mother permitting overly libertine lifestyle whilst reason c gave mother wanting live father largely spurious intend discount reason may well child genuine wish live one parent rather find impossible articulate reason wish engage rationalisation 57 opinion child age express clear firm wish parent reside reason wish inappropriate wish must given considerable weight unless substantial reason order made contrary wish wish prevail matter balancing reason wish 58 reason make order inconsistent wish indicated action mother october november previously many respect fallen well short conduct expected parent addition indicated whilst c mother last three month lived father sibling five year significant consideration however also reason accede child wish already indicated risk litigation order made reside father 59 end come matter balance critical mother relation conduct october november year earlier convinced however necessarily impact relation future say somewhat situation specific satisfied giving c head relation allowing come court taking various organisation necessarily implies adopt inappropriately laissez faire attitude upbringing future inappropriately accede wish relation issue 60 similarly whilst conduct respect indicated severely deprecated satisfied necessarily impact relation future upbringing c would justify ignoring wish indicated wish child age need given significant weight circumstance believe factor indicate c mother sufficient justify making order contrary wish propose make order c reside mother certify preceding sixty 60 paragraph true copy reason judgment brewster fmassociate date

"Preface" [2019] ELECD 2497; in Brown, Sarah (ed), "The Regulation of Consumer Credit" (Edward Elgar Publishing, 2019) vi.txt

preface 2019 elecd 2497 brown sarah ed regulation consumer credit edward elgar publishing 2019 vibook title regulation consumer crediteditor brown sarahpublisher edward elgar publishingsection title prefacenumber page 2extract prefacethe reason writing book twofold first long held interestin consumer credit relationship protection credit consumer andthe approach important consumer commercial relationship consumer credit enabling individual well mean ofsupport vital economy vibrant consumer credit market hasa positive macroeconomic effect yet ill managed whether market creditor borrower perspective cause potentially severe consumerdetriment therefore provides interesting dilemma term shouldbe controlled placing consumer protection second long heldinterest development credit culture control unitedkingdom also united state culture many respect havecommon root law exception although since declaration ofindependence american law evolved way diverge englishmodel written constitution federal structure writing book allowed develop argument relationto consumer credit new context credit course attracts discussion atmany level inevitably linked debt personal bankruptcy importantquestions social justice social welfare redistribution wealth alsorelevant however touched upon throughout book theemphasis concentrate regulatory perspective place across theatlantic deal

Wheeler & Ors t_as PricewaterhouseCoopers v Aoyin Group Ltd (No 2) [2021] NSWSC 433 (28 April 2021).txt

wheeler or pricewaterhousecoopers v aoyin group ltd 2 2021 nswsc 433 28 april 2021 last updated 4 march 2022supreme courtnew south walescase name wheeler or pricewaterhousecoopers v aoyin group ltd 2 medium neutral citation 2021 nswsc 433hearing date papersdate order 28 april 2021decision date 28 april 2021jurisdiction equity commercial listbefore stevenson jdecision cost plaintiff cross defendant notice motion 10 february 2021 cost causecatchwords cost dispute waiver privilege plaintiff cross defendant partial success scope application refined submissionslegislation cited evidence act 1995 nsw case cited wheeler or pricewaterhousecoopers v aoyin group ltd 2021 nswsc 363category costsparties andrew wheeler or pricewaterhousecoopers plaintiff aoyin group limited defendant representation counsel nixon sc e bathurst plaintiff j braithwaite defendant solicitor ashurst lawyer plaintiff mill oakley defendant file number 2017 252324judgment1 gave judgment matter 9 april 2021 wheeler or pricewaterhousecoopers v aoyin group ltd 1 shall use abbreviation 2 dealing dispute whether aoyin waived privilege relation communication received october 2014 september 2015 solicitor 3 argument pwc partial success 4 expressed preliminary view pwc cost argument cost cause 5 received submission whether preliminary view correct 6 persuaded 7 11 judgment recorded measure agreement reached relation document sought pwc 8 pwc originally sought category would required production 205 document following exchange submission pwc refined scope production sought proposed refined category called production 68 document 9 day hearing aoyin agreed produce 13 document 10 pwc partial success relation remaining document although success yielded two document 11 circumstance persuaded appropriate order make relation pwc motion cost motion cost cause 12 order cost plaintiff cross defendant notice motion filed 10 february 2021 cost cause amendments04 march 2022 case title coversheet corrected04 march 2022 case title coversheet corrected04 march 2022 case cited corrected 1 2021 nswsc 363

N01_39847 [2001] RRTA 1013 (30 November 2001).txt

n01 39847 2001 rrta 1013 30 november 2001 refugee review tribunaldecision reason decisionrrt reference n01 39847country reference irantribunal member eraine grottedate decision made 30 november 2001place sydneydecision tribunal remit matter reconsideration direction applicant person australia protection obligation refugee convention backgroundthe applicant citizen iran arrived australia lodged application protection class xa visa department immigration multicultural affair themigration act 1958 act applicant visa particular class entitled considered criterion subclass within class visa class xa includes two subclass 785 temporary protection 866 protection delegate minister immigration multicultural affair refused grant protection class xa visa applicant applied review decision legislationunders 65 1 act visa may granted decision maker satisfied prescribed criterion visa satisfied subsection 36 2 act relevantly provides criterion protection visa applicant visa non citizen australia australia protection obligation refugee convention amended refugee protocol refugee convention refugee protocol defined mean 1951 convention relating status refugee 1967 protocol relating status refugee respectively 5 1 act criterion grant protection class xa visa subclass 785 866 set inparts 785and866of schedule 2 themigration regulation 1994respectively australia party refugee convention refugee protocol andsubject certain qualification relevant present matter protection obligation people refugee defined definition refugee article 1a 2 convention defines refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return high court considered definition number case notablychan yee kin v minister immigration ethnic affair 1989 hca 62 1989 169 clr 379 applicant anor v minister immigration ethnic affair anor 1997 190 clr 225 minister immigration ethnic affair v guo anor 1997 191 clr 559 chen shi hai v minister immigration multicultural affair 2000 hca 19 2000 201 clr 293 andminister immigration multicultural affair v haji ibrahim 2000 hca 55 2000 175 alr 585 section 91r 91s act qualify aspect article 1a 2 purpose application act regulation particular person four key element convention definition first applicant must outside country second applicant must fear persecution 91r 1 act persecution must involve serious harm applicant systematic discriminatory conduct expression serious harm includes example threat life liberty significant physical harassment ill treatment significant economic hardship denial access basic service denial capacity earn livelihood hardship denial threatens applicant capacity subsist s91r 2 act high court explained persecution may directed person individual member group persecution must official quality sense official officially tolerated uncontrollable authority country nationality however threat harm need product government policy may enough government failed unable protect applicant persecution persecution implies element motivation part persecute infliction harm people persecuted something perceived attributed persecutor however motivation need one enmity malignity antipathy towards victim part persecutor third persecution applicant fear must one reason enumerated convention definition race religion nationality membership particular social group political opinion phrase reason serf identify motivation infliction persecution persecution feared need besolelyattributable convention reason however persecution multiple motivation satisfy relevant test unless convention reason reason constitute least essential significant motivation persecution feared 91r 1 act fourth applicant fear persecution convention reason must well founded fear add objective requirement requirement applicant must fact hold fear person well founded fear persecution convention genuine fear founded upon real chance persecution convention stipulated reason fear well founded real substantial basis merely assumed based mere speculation real chance one remote insubstantial far fetched possibility person well founded fear persecution even though possibility persecution occurring well 50 per cent addition applicant must unable unwilling fear avail protection country country nationality whenever protection applicant country available ground based well founded fear refusing person concerned need international protection refugee whether applicant person australia protection obligation assessed upon fact exist decision made requires consideration matter relation reasonably foreseeable future claim evidencethe tribunal department file includes protection visa application written submission support application record interview officer department tribunal also written submission support application review applicant gave oral evidence tribunal interview upon arrival australiathe applicant arrived australia interviewed department immigration dima official assistance interpreter persian language also known farsi applicant stated religion islam stated came boat australia relative applicant said left iran using passport issued name began planning leave iran one year ago applicant stated major problem iran reason left iran lack employment opportunity particularly woman lack access education lack freedom code dress harsh addition said salary low inflation level high answer question reason wishing return country nationality applicant said reason apart already said written application protection visathe applicant filed written application protection visa set reason seeking protection australian government stated application born iran practising muslim family applicant stated early age felt intimidated afraid islamic rule islamic authority fanatical muslim stated although tried observe dress code sake family could never justify law repressive unnatural woman applicant stated encountered problem school home non compliance islamic dress code applicant stated islamic republic responsible country going unwanted war iraq resulted loss many young people many family lost everything causing great difficulty resettlement despite difficulty applicant completed high school obtained work stated met christian man workplace whose name person head retail department gradually developed friendship sometimes saw outside workplace without knowledge family applicant stated began question islam asked person christianity stated impressed christianity teaching stated reached point could longer believe islam asked person take christian gathering stated introduced family church pastor stated participated gathering celebration accepted christian applicant stated mention conversion christianity family ready tell time claim however late 1990s sibling telephoned say relative visiting family found photograph document revealed christian belief friendship person relative outraged said would kill applicant sibling told stay away family applicant stated learnt relative another person visited person attacked knife iranian authority became involved relationship person christianity became known stated contact person family told injured relative taken hospital transferred unknown place probably imprisoned family know applicant stated sibling advised stay iran helped find smuggler order leave iran applicant stated time australia exposed even christianity proud conversion claim regardless consequence remain faithful practice christian belief rest life stated considers true christian cannot prevent talking belief since brought inner peace pleasure stated wish hide christian belief feel done nothing ashamed wish compromise belief deny disguise belief therefore inevitable persecuted christianity daring renounce islam stated convinced relative informed iranian authority conversion christianity claim face real risk harm persecution hand iranian authority letter reverend dthe applicant adviser forwarded dima letter reverend minister parish near detention centre reverend stated since late 1990s visiting detention centre applicant housed regularly lead worship service came know applicant attended worship service reverend stated applicant questioned christianity end service although every week aware group led met together stated opinion applicant genuine christian would able disguise hide stated unable baptised iran asked baptise applicant adviser forwarded copy applicant dated certificate baptism dima dima request applicant explanation matter regarded implausibleprior making decision dima delegate wrote applicant seeking clarification matter appeared implausible matter follows 1 applicant claim meeting number relative south east asian country en route australia unplanned coincidental 2 applicant claim unexpectedly met iranian stranger hotel country gave blank court summons case needed 3 applicant claim cannot help talking new belief although able resist urge iran came believe christianity 4 applicant claim able pay bribe name removed black list person interest authority checked airport prior departure iran 5 applicant claim felt unable provide truthful answer religion circumstance departure iran initial interview interpreter told keep answer brief applicant felt intimidated unwell tired afraid information provided would passed iranian authority 6 applicant claim protestant christian friend spoke christian accent christian first language dima delegate also informed applicant country information suggested iranian christian particular ethnic group armenian assyro chaldean speak language farsi information speak christian language dima delegate also informed applicant country information iran suggested christian convert actively proselytise generally subject persecution iran almost impossible bribe official airport name removed black list applicant invited comment applicant responsethe applicant stated meeting relative south east asia country quite coincidental left iran contact met country applicant stated desperate country willing trust one offered help stated never intended attempted use blank court summons order convince department immigration always tried honest statement protection visa applicant stated time departure sure whether name black list sibling paid smuggler facilitate departure applicant adviser contacted named iranian christian cross cultural minister named church australia asked comment independent evidence regarding accent according adviser armenian still retains armenian accent also stated assyrian armenian refers ethnicity indicate particular religious denomination applicant adviser submitted behalf applicant applicant specifically declared living australia provided opportunity learn christianity found position able hide christian faith also taken step detention centre proselytise number detainee applicant adviser provided name number people invited christianity applicant subsequently converted christianity applicant adviser submitted applicant conversion christianity started iran reached point feel compelled talk christian faith share christian faith others regardless consequence applicant adviser submitted applicant committed christian wish freely practise christian faith well evangelise tribunal hearingat hearing applicant confirmed planning leave iran one year prior arrival australia friendship person reason said mind leave iran grew fanatically religious family applicant said known person several year working company began discus religion discovered kind said ever questioned islam family would punished could go outside house without veil wear short sleeve islamic code dress restricted applicant said higher school certificate equivalent sometimes pray fast caused argument fighting relative prior leaving iran applicant living home customary live one parent marriage however often saw person outside work way home sitting bench talking said one family knew friendship except sibling trusted applicant said asked person take church said accepted congregation baptised received booklet jesus christ jewellery cross also photograph taken family church said kept photograph room home applicant said spent time person church family said went several time wearing purdah wore manteau trouser christian woman wearing similar clothes applicant asked tribunal type christian church person belonged said protestant said spoke generally essence christianity asked found christianity appealing applicant said essentially two commandment love god love love said islam like judaism concentrate detail ritual applicant said like restriction woman fact person cannot change religion wish christianity conversion prohibited applicant told tribunal person ethnic background armenian church service church conducted armenian applicant said understand armenian given book written persian read put applicant tribunal independent evidence indicated armenian christian proselytise proselytising extremely dangerous activity iran applicant maintained claim applicant asked incident involving relative person said sibling told relative went person home attacked police came went police station relative showed photograph church person family police save prove attacked person good reason applicant told tribunal obtained passport late 1990s problem mind time wanted leave iran restriction woman applicant asked hearing mentioned anything christianity initial interview applicant said answered question generally saying fed islam said felt intimidated afraid custom told detainee knowledge regarding refugee issue freedom restricted said would deported afraid returned iran said needed time consider aspect issue trust well applicant adviser submitted applicant may wrong deciding trust interview officer stated applicant involved christian activity tribunal doubt contact reverend adviser submitted applicant proselytised number iranian since converted christianity adviser submitted reliance could placed international report country information opinion reflect reality letter tribunal reverend dthe applicant adviser forwarded letter tribunal reverend reverend stated wrote letter dima many conversation applicant order learn faith story stated applicant eventually baptised specified date stated applicant amongst first started worshipping long began work detention centre stated first worshipper including applicant keen share faith others congregation grew 0 large number several month stated easy applicant share faith others recently baptised detention centre harassed detainee choice religion reverend stated applicant genuine christian feel need share faith despite opposition submission following hearingfollowing tribunal hearing applicant adviser forwarded tribunal copy report indicate ongoing persecution former muslim converted christianity iran tribunal sent letter applicant seeking explanation matter considered might adversely affect application response question applicant stated following 1 first interview applicant explained reason caused disappointment islam tendency towards christianity lack democracy islamic code dress woman low income high inflation unemployment iran view problem due establishment islamic republic islamic rule resulted applicant abandoning islam converting christianity particular woman subjected gross discrimination woman cannot become judge woman testimony respect murder trial accepted case divorce custody child automatically given father thing motivated abandon islam 2 applicant spent life fear intimidation caused iranian authority arrived australia detained faced barbed wire official uniform later fingerprinted thing reminded iran caused extreme fear applicant stated baptised time arrival australia felt could call christian 3 unable express first interview fear iranian australian government good relationship iranian authority would learn whereabouts 4 applicant insisted meeting relative south east asian country purely coincidental stated planned escape iran relative relative open camp granted refugee status whereas closed camp several month 5 applicant agreed wanted leave iran long time discrimination woman planning one year ahead contacted embassy iran obtain visa thing caused sudden departure relationship person conversion christianity fear persecution 6 stated tribunal hearing said person armenian attended protestant church quite customary amongst iranian armenian dima case officer question 7 tribunal hearing said attended named church tehran named pastor church belongs protestant applicant stated anglican part protestant stated farsi name church also submitted behalf applicant person experience fear authority country may still feel apprehensive vi à vi authority may therefore afraid speak freely give full accurate account case independent evidencethe following information extracted theunited kingdom home office immigration nationality directorate www ind homeoffice gov uk christians6 33 according iranian government 1997 117 000 200 000 christian iran made assyro chaldean armenian greater number armenian concentrated mainly urban area legally permitted practice religion instruct child may proselytise muslim authority become particularly vigilant recent year curbing perceived increasing proselytising activity evangelical christian whose service conducted persian conversion muslim non muslim religion considered apostasy government official reacted perceived activity closing evangelical church arresting convert member evangelical congregation church required carry membership card photocopy must provided authority worshipper subject identity check authority posted outside congregation center meeting evangelical service restricted authority sunday church official ordered inform ministry information islamic guidance admitting new member congregation 6 34 armenian lived iran century mainly tehran government appears tolerant group armenian christian conduct service armenian thus proselytise christian association without ethnic focus sometimes face difficulty obtaining legal recognition existence apostasy6 35 apsotasy conversion islam another religion acceptable islamic law woman imprisoned life released repents proselytising apostate convert begun preaching christianity likely face execution information confirmed inthe united state department state international religious freedom report iran released bureau democracy human right labor october 2001 particular mistreatment evangelical christian continued period covered report christian group reported instance government harassment churchgoer tehran particular worshiper assembly god congregation capital instance harassment cited included conspicuous monitoring outside christian premise revolutionary guard discourage muslim convert entering church premise demand presentation identity paper worshiper inside iranian christian international ici detailed case alireza mahboobeh mahmoudian convert christianity lay leader saint simon zealot osgofi church shiraz forced leave country permanently june 1998 continued harassment authority ici reported alireza mahmoudian lost job conversion beaten repeatedly basijis paramilitary force ansar e hizbollah gang thug often aligned specific member leadership order government official ministry islamic guidance wife mahboobeh also subject intimidation principally frequent aggressive interrogation government official following information extracted source deleted unders431of themigration actas range specific information contained document could identify applicant following generalisation information persecution protestant seems reserved proselytising christian attempt challenge system convert islam christianity made known conversion one source quoted suggested although law allowed death penalty convert islam christianity reality convert put jail quite short period rather executed location church claimed applicant name pastor confirmed following information extracted fromhuman right watch report religious minority 2000 www hrw org report 2000 iran christiansthe majority iran approximately 200 000 christian belong church identified distinct ethnic group including armenian assyrian chaldean orthodox church church account 90 percent iran christian carry service language engaged little proselytization broader society protestant churchesin contrast 10 000 15 000 iranian protestant carry church service farsi official language seek disseminate bible christian text farsi origin western missionary activity nineteenth century church built tradition evangelism conversion christian denomination religion including islam western origin iran protestant church enduring link similar congregation united state europe together church readiness accept even seek muslim convert fueled government suspicion hostility toward iran protestant treatment since creation islamic republic markedly worse majority christian denomination protestant subject institutionalized discrimination common non muslim islamic republic also subject persecution religious activity early month post revolutionary period extensive persecution protestant clergy largest protestant denomination episcopalian forced cease activity confiscation church property arrest several pastor physical attack church leader family small evangelical protestant church continued function persecution iran evangelical christian intensified 1990 december 1990 reverend hossein soodmand pastor evangelical christian church converted christianity islam sentenced death revolutionary court mashad executed charged apostasy insulting islam conversion effort convert muslim finding reasonsthe applicant claim citizen iran applicant gave evidence tribunal farsi persian official state language iran also displayed general knowledge social religious value iran absence evidence contrary tribunal find applicant citizen iran accordingly tribunal assessed applicant claim iran country nationality summary applicant claim introduced christianity living iran conversion islam christianity became known iranian authority sibling discovered photograph document demonstrating conversion thereby placing grave danger apostasy renouncing islam conversion islam another religion prohibited iran addition applicant claim completed conversion christianity australia baptised claim would unable keep faith would need proselytise return iran proselytising muslim punishable death iran applicant also made general claim regarding discrimination woman iran determining whether applicant entitled protection australia tribunal must first make finding fact claim made may involve assessment credibility applicant assessing credibility tribunal must sensitive difficulty often faced asylum seeker reasonable applicant whose claim plausible credible unless good reason given benefit doubt unhcrhandbook procedure criterion determining refugee status edited geneva january 1992 para 196 197 203 204 decision maker rebutting evidence available lawfully hold particular assertion applicant made selvadurai v minister immigration ethnic affair refugee review tribunal heerey j 20 may 1994 page 7 also clear tribunal required accept uncritically claim made applicant inrhandawa v minister immigration local government ethnic affair 1994 fca 1253 1994 52 fcr 437at page 451 beaumont j observed liberal attitude concerning proof persecution context application refugee status however lead uncritical acceptance allegation made suppliant conversion iranthe tribunal find applicant claim respect conversion iran credible following reason 1 shortly arrival australia applicant interviewed immigraton official official applicant assisted interpreter farsi language introductory remark set interview indicate dima official explained applicant information provided applicant course interview different information provided future interview inconsistency could raise doubt reliability information provided applicant asked official give reason left iran reason given applicant lack freedom lack employment opportunity particularly woman harsh dress code low salary level high inflation rate applicant also asked specifically reason wishing return country nationality applicant answered said already interview department immigration multicultural affair dima delegate asked applicant explanation failing mention relationship person conversion christianity iran applicant said intimidated process unfamiliar uncertain whether could trust person interviewing afraid information gave would passed iranian authority tribunal also put concern applicant gave reason tribunal accepts person applicant situation would apprehensive unfamiliarity uncertainty process however tribunal accept person applicant left country taken many risk specific intention seeking protection another country would omit completely significant aspect claim omit explain reason precipitated dramatic departure iran moreover applicant claim afraid trust australian official inconsistent evidence behaviour applicant gave evidence named south east asian country desperate willing trust one willing help accepted blank court document stranger tribunal accept applicant explanation afraid information would passed iranian authority according evidence authority would already known conversion relative addition tribunal accept applicant believed australia iran good relationship australia would pas information iran applicant believed plausible would travelled thousand kilometre taken many risk get australia moreover applicant presented confident forceful articulate determined individual clearly evident presentation evidence tribunal action leaving iran travelling number south east asian country dealing smuggler accepting blank court document stranger one country finally travelling boat australia tribunal accept applicant person would easily intimidated process would omit recount important piece information tribunal accept applicant claim believed would opportunity tell main claim therefore mention initial interview asked explain reason left iran according applicant evidence planning leave iran time conversion christianity taking place number year plausible would mentioned reason left iran tribunal accept applicant attended protestant church number year applicant evidence point inconsistent independent evidence internally inconsistent tribunal applicant said person attended protestant church also said service church conducted armenian asked understood anything said gave book read farsi response question put applicant following hearing said person armenian attended protestant church tribunal accepts armenian christian protestant however independent evidence state protestant church service conducted farsi armenian stated applicant according independent evidence protestant disseminate christian text farsi evangelisee willingness seek muslim convert fueled government suspicion hostility consequently strictly controlled iranian authority member congregation required membership card photocopy provided authority worshipper also subject identity check minister required inform authority new member applicant claim accepted person congregation photograph taken church tribunal find claim implausible applicant attending protestant church claimed given strict control imposed iranian authority possible applicant could attending church number year without coming attention authority tribunal accept attended protestant church number year photograph taken church inconsistency applicant evidence significant noteworthy affect applicant credibility example applicant told dima delegate person either armenian assyro chaldean told tribunal armenian matter lead tribunal conclude applicant fabricated claim regarding conversion christianity iran intention enhancing claim protection visa tribunal find time applicant departure iran well founded fear persecution reason religion returned iran conversion christianity australiaalthough tribunal found applicant well founded fear persecution time departure iran person outside country origin may become refugee result action recognised person may become refugee sur place result voluntarily participating activity would give rise well founded fear convention persecution country origin australia several federal court decision initially adopted interpretation convention excluded grant refugee status person committed action australia solely purpose creating pretext claiming refugee status somaghi v milgea 1991 fca 389 1991 31 fcr 100 however later judicial consideration issue expressly rejected existence good faith test within convention finding tribunal role simply consider whether applicant held genuine fear would persecuted convention reason returned country origin fraudulent nature act done australia simply one issue amongst many relate whether applicant fear well founded mohammed v mima 2000 fca 576 2000 98 fcr 405 section 91r 3 recently inserted themigration act 1958 act specifically overcome case law section 91r 3 provides determining whether person well founded fear persecuted one convention reason conduct engaged person australia must disregarded unless person satisifes minister tribunal review engaged conduct otherwise purpose strengthening claim refugee emphasis added yet clear section interpreted however language section consistent general understanding ofsomaghi scase prior decision inmohammed scase suggests conduct australia disregarded attributable purpose unless strengthening refugee claim sole purpose tribunal note letter reverend testifying genuineness applicant belief genuineness conversion christianity tribunal accepts applicant baptised named church detention centre attending service detention centre tribunal also accepts applicant discussed conversion others detention centre even encouraged others join worship service held reverend second cleric although tribunal find applicant credible relation claimed event iran prior departure tribunal considers court observed in v mima unreported federal court australia madgwick j 23 march 1998 page 3 applicant genuine refugee would first last one desperation include exaggerated untrue material order bolster true sufficient material tribunal find evidence provided tribunal reverend compelling persuasive reverend opportunity talk many occasion applicant discus faith story assessed genuine belief tribunal particularly impressed statement easy applicant share faith others recently baptised detention centre harassed detainee choice religion tribunal accepts evidence reverend find applicant genuine conversion christianity tribunal satisfied applicant converted christianity sole purpose strengthening claim refugee tribunal accepts applicant claim want practice christianity iran return want share belief others seek protestant christian attend church service conducted farsi tribunal made finding basis evidence reverend stated applicant shared belief despite difficulty adversity also basis applicant personality direct outspoken tribunal accepts independent evidence strict control imposed protestant church congregation iranian authority stated earlier decision one control church official ordered inform ministry information islamic guidance admitting new member congregation tribunal find real chance applicant attendance protestant church known authority regarded suspiciously iranian authority could arrested even imprisoned life repent applicant attempt proselytise tribunal already accepted real chance might applicant could face execution tribunal therefore find applicant well founded fear persecution reason religion convention reason return iran reasonably foreseeable future discrimination dress code iranas tribunal already found applicant well founded fear persecution convention reason tribunal determine question whether applicant suffered suffer discrimination iran reason membership particular social group whether discrimination amount persecution convention sense conclusionthe tribunal satisfied applicant person australia protection obligation refugee convention amended refugee protocol therefore applicant satisfies criterion set 36 2 act protection visa decisionthe tribunal remit matter reconsideration direction applicant person australia protection obligation refugee convention

Spaulding v Law Society of Tasmania [2004] TASSC 1 (21 January 2004).txt

spaulding v law society tasmania 2004 tassc 1 21 january 2004 last updated 21 january 2004 2004 tassc 1citation spaulding v law society tasmania 2004 tassc 1parties spaulding michael johnvlaw society tasmaniatitle court supreme court tasmaniajurisdiction originalfile 359 2003delivered 21 january 2004delivered hobarthearing date 5 december 2003decision master holtcatchwords procedure tasmania practice rule court amendment amendment statement claim whether reasonable cause action disclosed whether pleading embarrassing supreme court rules2000 ta r227 r258 r259 r427 aust dig procedure 276 representation counsel plaintiff persondefendant mr farrellsolicitors plaintiff persondefendant simmons wolfhagenjudgment number 2004 tassc 1number paragraph 17serial 1 2004file 359 2003spaulding v law society tasmaniareasons decision master holt21 january 20041 plaintiff mr spaulding sued law society tasmania law society damage financial loss arising handling law society complaint professional misconduct mr spaulding made firm legal practitioner member firm 11 september 1992 writ endorsed statement claim statement claim amended 1 september 2003 amended statement claim struck mr spaulding liberty file serve statement claim statement claim filed respect document 6 october 2003 following order made consent 1 unless amended following application filed served 5 pm tuesday 21 october 2003 statement claim struck 2 upon filing affidavit verifying 5 pm tuesday 21 october 2003 plaintiff filed served application leave amend statement claim judgment entered defendant plaintiff cost including reserved cost time making amendment application extended 10 november 2003 document entitled amended statement claim filed treated party application amend application court concerned amendment opposed ground reasonable cause action disclosed proposed pleading embarrassing 2 mr spaulding self represented proposed pleading mr spaulding fourth attempt pleading claim understandably mr spaulding gone considerable effort fully set ground action proposed statement claim run 22 page comprises 152 paragraph document contains unnecessary information argument opinion conclusion drawn unstated fact comply r227 requires pleading brief nature case allows contain statement material fact party relies r258 r259 court discretion strike pleading may tend prejudice delay fair trial proceeding fails disclose reasonable cause action r427 court discretion grant leave party amend pleading function pleading state sufficient clarity case must met banque commerciale sa liq v akhil holding ltd 1990 hca 11 1990 169 clr 279at 286 considering defective pleading court take account whether defect substance whether notwithstanding deficiency fundamental function pleading served queensland v pioneer concrete qld pty ltd 1999 fca 499 1999 atpr 41 691at 42 828 fact alleged even proven would afford chance court granting relief cause action disclosed purpose would served allowing pleading amendment futile obviously bad law allowed commonwealth australia v verwayen 1990 170 clr 394 456 fact alleged set prolix confusing ambiguous term material respect mere conclusion drawn unstated fact fair efficient conduct action may placed jeopardy pleading embarrassing generally expected permitted stand 3 general term following allegation discernible proposed statement claim whilst mr spaulding client firm legal practitioner practitioner firm carriage mr spaulding work entered contract concerning land provided legal service respect transaction matter affecting mr spaulding practitioner performed work grossly negligent fashion acted conflict situation failed advise mr spaulding obtain independent legal advice acted fraudulently acted breach fiduciary duty word professional misconduct caused mr spaulding suffer financial detriment 1990 mr spaulding wife became bankrupt discharged bankruptcy 1996 11 september 1992 mr spaulding complained firm practitioner law society law society obtained response allegation practitioner referred complaint response independent legal counsel early 1993 early 1994 counsel reported substantial basis accusation made mr spaulding conclusion reached bias mr spaulding given opportunity put allegation oath mr spaulding furnished document relied upon counsel mr spaulding invited present evidence response practitioner answer allegation counsel applied criminal rather civil standard proof analysis conclusion weight evidence reached inordinate delay disciplinary proceeding promptly successfully taken practitioner mr spaulding trustee bankruptcy would thereafter successfully sued practitioner recovered sufficient fund bankruptcy discharged early 4 number duty alleged owed law society seem assume law society empowered discipline practitioner set part pars120 150 proposed statement claim 120the defendant owed duty care plaintiff b exercise disciplinary power c hear allegation complaint client f make finding result g impose penalty upon legal practitioner including fine suspension practice strike name roll practitioner 150 defendant failed plaintiff tasmanian government finding guilty 1994 professional misconduct 5 alleged duty consequently claimed breach capable sustained light statutory framework applied time thelaw society act1962 act act independent tribunal known disciplinary committee whose member appointed supreme court tasmania continued tribunal power application hear determine matter pertaining professional conduct legal practitioner make order striking suspension fining practitioner act power solely within province disciplinary committee court law society course could institute prosecute disciplinary proceeding disciplinary committee court end rule made act conferred upon council law society investigative power particular r7 1 therules practice1977 provided council acting motion written complaint lodged person may require practitioner furnish council full accurate account writing conduct relation matter relating practice within time council may fix 6 counsel law society mr farrell submitted mr spaulding case howsoever framed hopeless law society statutory regulatory body exercising power investigate view deciding whether would institute disciplinary proceeding disciplinary proceeding least time compensation order available could brought obtain redress wrong brought protection public weaver v law society new south wale 1979 hca 35 1979 142 clr 201at 207 submitted circumstance cause action mr spaulding attempt put forward namely negligence breach statutory duty unsustainable 7 submission cause action available plaintiff although amendment application fair deal matter application made strike statement claim duly delivered 8 claimed cause action breach statutory duty negligence conscious determining question whether cause action available determine matter mr spaulding benefit discovery procedure available court fact canvassed trial adopt approach lord browne wilkinson inx minor v bedfordshire county council 1995 3 er 353 said 373 action struck rsc ord 18 r19 clear obvious law claim cannot succeed law settled state development present case normally inappropriate decide novel question hypothetical fact agree sir thomas bingham mr 1994 1995 ukhl 9 4 er 640at 649 1995 ukhl 9 1994 3 wlr 853at 865 nothing inappropriate deciding application whether statue question confer private law right action damage answer question depends upon construction statute alone much difficult question whether appropriate decide question whether common law duty care case may case view child abuse case fall category evident whatever fact common law duty care exist case relevant fact known stage example considering question whether discretionary decision justiciable answer often depend exact nature decision taken factor relevant evidence matter come defendant presently court agree sir thomas bingham mr fact alleged statement claim possible give certain answer whether law claim maintainable appropriate strike claim preliminary stage matter must go trial relevant fact discovered 9 cause action negligence exist breach duty care resultant damage duty care pursuit action futile mr farrell unable refer case concerning whether private cause action sounding damage available alleged negligent investigation law society complaint put argument basis case analogous case court held duty care exists 10 injovanovic v law society tasmania or 2 2003 tassc 65 cox cj said par121 following 121 claim negligence breach statutory duty asic corporation statutory function obligation must first pas test existence duty care plaintiff kirby j said ingraham barclay oyster pty ltd anor v ryan or 2002 hca 54 2002 194 alr 337at 393 referring intermediate appeal court analysis previous decision duty care exercise statutory power one unarguable principle emerges earlier decision reflected federal court analysis self evident one duty public authority common law must compatible legislative power conferred duty imposed authority must conform apparent purpose legislature relating authority carrying duty according statute 122 second named defendant established body corporate theaustralian security investment commission act1989 s7 relevant time aim act theaustraliansecurities investment commission act2001 replaced set s1 2 provided 1 2 performing function exercising power commission must strive maintain facilitate improve performance company security market future market interest commercial certainty reducing business cost efficiency development economy b maintain confidence investor security market future market ensuring adequate protection investor g take whatever action take necessary order enforce give effect national scheme law 123 material time asic extensive power investigation reason suspect may committed contravention law commonwealth state territory contravention concern management affair body corporate managed investment scheme ii involves fraud dishonesty relates body corporate managed investment scheme security future contract plaintiff complaint par311 amended statement claim asic officer agent involve allegation negligence conduct investigation dit indeed initial allegation negligence undertaking investigation said consequence investigation run dit fund quite clearly undertaking investigation asic regard statutory responsibility could constitute breach duty care anyone let alone plaintiff court said insullivan v moody 2001 207 clr 562at 582 circumstance defendant owes duty care third party subject statutory obligation constrain manner power discretion may exercised rule possibility duty care owed plaintiff people may subject number duty least provided irreconcilable medical practitioner examines report upon condition individual might owe duty care one person suggested duty care would give rise inconsistent obligation would ordinarily reason denying duty exists similarly public authority officer charged responsibility conducting investigation exercising power public interest interest specified class person law would ordinarily subject duty regard interest another class person would impose upon conflicting claim obligation view neither duty care part asic plaintiff respect institution conduct investigation fact pleaded breach duty could established see alsoyuen kun yeu v attorney general hong kong 1988 ac 175 11 law society investigates complaint discretion commence disciplinary proceeding practitioner act determine individual right liability protection public misconduct practitioner society power derives statute time mr spaulding complaint 1992 act provided s11 society general meeting could make law inter alia defining object law society regulation good government law society member affair thereof law 3 included following object suppress dishonourable conduct practice thing incidental conducive attainment object 12 would incompatible object protecting public suppressing dishonourable conduct practice example investigation conducted risk practitioner unsuccessfully prosecuted result negligent investigation remedy investigator damage similarly would compatible efficient undertaking general function law society owed private duty care complainant practitioner act negligently breach fiduciary duty commits act fraud client suffers damage client expected remedy practitioner directly without intervention assistance law society possible decide duty care without trial simply basis nature allegation proposed statement claim mr spaulding put forward reason think reason asic duty care investigating protection public allegation corporate misconduct whilst law society subject negligence claim investigation protection public allegation professional misconduct authority regulatory function conferred statute investigating prosecuting power object protecting public accordingly accept mr farrell submission based analogy asic duty care existed afford mr spaulding cause action negligence law society 13 far claim breach statutory duty concerned number allegation made effect procedure adopted law society consistent statutory scheme example alleged society comply requirement imposed law 48 complaint verified statutory declaration private cause action breach statutory duty exist unless intent confer private right discerned statute x minor v bedfordshire county council supra mr spaulding referred nothing legislation support existence intent carefully examined legislation unable find anything support construction conferring private remedy breach power law society investigate prosecute disciplinary matter exists protection public protection limited class individual case person suffers harm result misconduct legal practitioner remedy exist practitioner independently statute event taking disciplinary proceeding within exclusive province law society proceeding disciplinary tribunal court taken aggrieved individual basis construction act would allow individual recover damage breach 14 society duty care mr spaulding act conferring private law cause action mr spaulding claim negligence breach statutory duty futile obviously bad law proposed amended statement claim cannot allowed 15 also agree mr farrell submission statement claim allowed embarrassing sense tendency prejudice delay fair trial proceeding opponent know case required answer clearly state aspect case wish put issue statement claim must contain summary material fact including fact alleged link damage loss conduct subject complaint h 1976 nominee pty ltd v galli 1979 fca 74 1979 30 alr 181at 186 andbond corporation pty ltd v theiss contractor pty ltd 1987 fca 84 1987 14 fcr 215at 222 essence mr spaulding complains competent investigation thereafter prosecution complaint would resulted adverse finding legal practitioner consequence mr spaulding trustee bankruptcy fortified finding would sued legal practitioner recovered sufficient fund justify early discharge bankruptcy proposed statement claim includes following loss 122particulars lossby reason defendant gross negligence gross incompetence breach statutory duty failing exercise statutory power proper appropriate manner plaintiff suffered loss damage result 123 1990 plaintiff wife made bankrupt way creditor petition expected discharged bankruptcy within three year plaintiff made formal complaint trustee bankruptcy relation way manner mr practitioner conducted affair plaintiff wife 1986 1990 primary possibly sole reason plaintiff wife financial demise eventual bankruptcy plaintiff trustee bankruptcy mr response plaintiff allegation believed mr version event plaintiff plaintiff wife serve three year bankruptcy till 1996 discharged 124 finding professional misconduct 1994 early 1993 would prompted bankruptcy behalf plaintiff wife main creditor anz bank westpac bank taxation department plus small creditor sue recover money 350 000 monies plaintiff wife entitled arising mr professional misconduct 125 gross negligence gross incompetence mr defendant finding mr guilty unprofessional conduct professional misconduct 1994 official receiver lost opportunity recover way litigation compensation relation fiduciary breach loss arising negligence breach contract 16 fact relied upon support pleaded conclusion set example proposed statement claim set fact showing quantification claim legal practitioner sued would may sufficient sum fully pay creditor bankruptcy least sufficient sum justify early discharge bankruptcy 17 application leave amend statement claim dismissed hear party application filed law society 20 august 2003 seeking certain relief including judgment entered cost defendant

DE KAUWE -v- COHEN [No 4] [2022] WASC 35 (9 February 2022).txt

de kauwe v cohen 4 2022 wasc 35 16 february 2022 last updated 16 february 2022jurisdiction supreme court western australiain civilcitation de kauwe v cohen 4 2022 wasc 35coram le miere jheard 28 29 january 8 13 february 12 16 july 2 13 august 19 august 3 september 14 16 october 4 5 november 2021 17 january 2022delivered 9 february 2022file civ 1512 2018between brendan james de kauweplaintiffandhaim cohenfirst defendantilan saadsecond defendantgalit assaf shenharthird defendanteran gilboafourth defendantbenjamin karasikfifth defendantian craig pamenskysixth defendantmatthew wrightseventh defendantdefamation meaning publication imputation private public company correspondence whether national ordinary meaning imputation defamatory plaintiffdefamation publication liability whether defendant authorised intended publication whether defendant participated publication republication fairfax medium publication pty ltd v voller 2021 hca 27 2021 392 alr 540defences qualified privilege common law qualified privilege whether publication pursuant duty interest provide information director officer company corresponding duty receive information whether publication constituted reply attack statutory qualified privilege 30 3 defamation act 2005 wa defence qualified privilege malice whether publication actuated improper motive purpose whether privileged occasion exceededdamages assessment special damage whether plaintiff lost opportunity remain director company whether plaintiff lost opportunity acquire option director company whether plaintiff lost opportunity become director companydamages assessment general damage damage reputation professional standing aggravated compensatory damage whether conduct defendant improper unjustifiable lacking bona fides whether damage amplified via grapevine effect damage tort injurious falsehood whether imputation certain publication false whether exemplary damage necessarylegislation corporation act 2001 cth defamation act 2005 wa rule supreme court 1971 wa result plaintiff claim partially successfulcategory brepresentation counsel plaintiff mr l bennett mr tharbyfirst defendant mr j maclaurin sc m j mooresecond defendant mr j maclaurin sc m j moorethird defendant mr j maclaurin sc m j moorefourth defendant mr j maclaurin sc m j moorefifth defendant mr j maclaurin sc m j mooresixth defendant mr davy sc mr f merendaseventh defendant mr c p k russellsolicitors plaintiff bennett cofirst defendant dla piper australia perthsecond defendant dla piper australia perththird defendant dla piper australia perthfourth defendant dla piper australia perthfifth defendant dla piper australia perthsixth defendant jackson mcdonaldseventh defendant wotton kearney lawyer perth case referred decision adam v ward 1917 ac 309ahmed v john fairfax publication pty ltd 2006 nswsc 11al almoudi v brisard 2006 ewhc 1062 qb 2007 1 wlr 113amalgamated television service pty ltd v marsden 1998 nswsc 4 1998 43 nswlr 158ami australia holding pty ltd v fairfax medium publication pty ltd 2010 nswsc 1395australand holding ltd v transparency accountability council inc 2008 nswsc 669australian broadcasting corp v chau chak wing 2019 fcafc 125 2019 271 fcr 632australian broadcasting corp v comalco ltd 1986 fca 300 1986 12 fcr 510badenach v calvert 2016 hca 18 2016 257 clr 440bashford v information australia 2004 hca 5 2004 218 clr 366bauer medium pty ltd v wilson 2018 vsca 154 2018 56 vr 674bellino v australian broadcasting corp 1996 hca 47 1996 185 clr 183bennette v cohen 2009 nswca 60brown v new south wale trustee guardian 2012 nswca 431 2012 10 astlr 164bryanston finance ltd v de vries 1975 1 qb 703c evans son ltd v spritebrand ltd 1985 1 wlr 317calwell v ipec australia pty ltd 1975 hca 47 1975 135 clr 321carney v newton 2006 tassc 4carson v john fairfax son ltd 1993 hca 31 1993 178 clr 44cassell co ltd v broome 1972 ukhl 3 1972 ac 1027chase v news group newspaper ltd 2002 ewca civ 1772 2003 emlr 11chau v fairfax medium publication pty ltd 2019 fca 185cohen v bennette 2009 hcatrans 291cummings v fairfax digital australia new zealand pty ltd 2018 nswca 325 2018 99 nswlr 173cush v dillon 2011 hca 30 2011 243 clr 298de buse v mccarthy 1942 1 kb 156dods v mcdonald 1 2016 vsc 200douglas v mclernon 3 2016 wasc 319dow jones co inc v gutnick 2002 hca 56 2002 210 clr 575doyle v smith 2018 ewhc 2935 qb drummoyne municipal council v australian broadcasting corporation 1990 21 nswlr 135fairfax medium publication pty ltd v voller 2021 hca 27 2021 392 alr 540favell v queensland newspaper pty ltd 2005 hca 52 2005 221 alr 186flood v time newspaper ltd 2012 uksc 11 2012 2 ac 273 2012 4 er 913gacic v john fairfax publication pty ltd 2005 nswsc 1210gorton v abc 1973 1 actr 6goyan v motyka 2008 nswca 28 aust tort rep 81 939gray v motor accident commission 1998 hca 70 1998 196 clr 1greek herald pty ltd v nikolopoulos 2002 nswca 41 2001 54 nswlr 165guise v kouvelis 1947 hca 13 1947 74 clr 102harbour radio pty ltd v trad 2012 hca 44 2012 247 clr 31hockey v fairfax medium publication pty ltd 2015 fca 652 2015 237 fcr 33hopman v mirror newspaper ltd 1960 nswr 559

O’Connor v Maribyrnong City Council & VWA [2010] VCC 1987 (21 December 2010).txt

county court victoria 250 william street melbourne undefined bookmark county court victoria revised restricted melbourne civil division damage compensation general division case ci 10 00111 peter john connor plaintiff v maribyrnong city council first defendant victorian workcover authority second defendant judge honour judge neill held melbourne date hearing 26 27 october 2010 date judgment 21 december 2010 case may cited connor v maribyrnong city council vwa medium neutral citation 2010 vcc 1987 reason judgment catchword accident compensation section 134ab accident compensation act 1985 injury occurring course em ployment garbage truck driver aggregation injury cervical lumbar spine aggregation various cidents giving rise injury whether consequence considerable appearance counsel solicitor plaintiff mr g lewis sc m j forbes arnold thomas becker defendant mr w middleton herbert geer vcc 1 judgment connor v maribyrnong city council vwa honour preliminary 1 plaintiff suffered injury lumbar cervical spine course employment garbage truck dr iver first defendant number year particular suffered incident july 2001 cervical spine incident october 2001 required lift move heavy rubbish bin resu lt suffered injury lower spine 2 remained working defendant lighter duty period subsequently returned work garbage truck driver employer finally ceased work february 2009 3 claim recreational intere sts particular capacity employment affected injury 4 application leave bring proceeding pursuant 134ab 16 b accident compensation act 1985 act injury suffered course plaint iff employment october 1999 2004 particular inci dent plaintiff cervical spine 23 july 2001 lower spine 25 october 2001 5 mr lewis behalf plaintiff identifi ed body function said lost impaired spine applicat ion thus brought sub definition serious injury contained 134ab 37 act leave sought respect pain nd suffering loss earning capacity 6 order succeed plaintiff must prove onus upon consequence emanating loss impairment spine least considerable signifi cant marked must consider consequence particular plai ntiff viewed objectively arising injury must also compare impai rment arising injury vcc 2 judgment connor v maribyrnong city council vwa application case r ange impairment loss body function 7 order satisfied plaintiff suffered loss earning capacity must prove pr escribed 134ab 38 e 134ab 38 f sult injury suffered loss earning capacity 40 per cent w hen comparison made without injury earnings part three year period injury best reflects earning c apacity earning capacity present time suitable employment 8 plaintiff witness call ed give evidence cross examined addition affidavit plaintiff va rious medical radiological report income tax return workcover certificate extract clinical note tendered evidence r ead tendered material relevant background 9 plaintiff forty four year age de facto wife three child left school year 9 poor reading writing skill driven garbage truck since bout 18 initially drove broadmeadows council per iod 1995 1997 commenced business mowing lawn business failed worked labour hire company driving garbage truck various municipal council 1997 commenced work fi rst defendant casual basis initially work involved three pers team working garbage truck subsequently changed su ch per son driving truck operating hydraulic hoist side truck lifting bin would often get truck wheel heavy bin side operate hydraulic lift th particularly street car parked curb vcc 3 judgment connor v maribyrnong city council vwa 10 employment became permanent 1999 11 range incident affecting particular lower back year approximately 1986 pulled muscle back work approximately two week saw dr singh returned work without difficulty 12 approximately april 1998 sa w general practitioner dr samararatna g oonawarra medical centre sunbury x ray low back taken subsequently ct scan1 showed small central disc herniation indenting anterior part thecal sac nerve root affected moderate facet joint hypertrophy minor disc herniation l5 s1 cl inical note general practitioner2 state plaintiff employed garbage collector job involved lifting dr samararatna diagnosed soft tissue injury plaintiff continued see general practitioner num ber occasion may 1998 undertook physiotherapy subseque ntly able continue employment 13 march 1999 fell truck jarred back prescribed panadeine forte 14 18 october 2000 attended dr samararatna complaining sore lower back bilateral muscle spasm afte r jarring back attended number day later continuing ba ck pain muscle spasm noted doctor prescribed diazepam panadeine forte referred osteopath lana peter 15 cross examination3 agreed never en pain free relation lumbar spine since 1998 1 defendant court book dcb 161 2 exhibit 6 3 59 l19 vcc 4 judgment connor v maribyrnong city council vwa 16 term recreational pursuit runner digger rest football club claim cease result injury injury consequence 17 23 july 2001 plaintiff went ee dr samararatna complaining pain neck according workcover claim form4 say day strained neck muscle c ourse duty driving garbage truck reaching bin rubbi sh bin fell dr samararatna prescribed panadeine forte referred chiropractor work approximately one week5 saw general practitioner month 18 ct scan 21 september 20016 revealed little abnormality 19 25 october 2001 plaintiff went see dr samararatna complaining low back pain radiation hi p incident report completed lodged employer7 described injury occurring getting truck workcove r claim form completed lodged8 cause described ge tting truck july incident claim acc epted x ray lumbar spine taken 1 november showed disc narrowing spondylosis l4 s1 9 plaintiff work several day 10 resumed alternative duty certified return normal duty 19 november 2001 11 20 another doctor goonaw arra clinic referred plaintiff ct scan lumbar spine 11 december 2001 12 scan noted large left 4 plaintiff court book pcb 100 note claim accepted workcover insurer 5 workcover certificate pcb 123 128 6 pcb 93 7 pcb 106 8 pcb 103 105 9 pcb 31 10 pcb 129 130 11 pcb 133 12 pcb 92 vcc 5 judgment connor v maribyrnong city council vwa paracentral dorsal disc extrusion th compromised l5 lateral recess said likely irritate exiting l5 nerve root plaintiff chiropractic treatment lower back 21 affidavit support application 13 plaintiff described additional episode causing significa nt injury say pulling heavy garbage bin left chinese restaur ant hopkins street footscray affidavit record bin left hand began tip attempting arrest fall twis ted neck hurt back right shoulder evidence said fact right h holding bin tipped unclear whether incident one referred 23 july 2001 incident 22 aside incident referred plaintiff complained bin required manoeuvre side truck heavy awkward 23 return work poi nt plaintiff sa y unable continue former duty inst ead assumed lighter duty would drive around street utility checking garbage bin returned correct position eventually february 2004 employment terminated tho e duty longer available 24 plaintiff referred gener al practitioner mr craig mill orthopaedic surgeon saw 12 febr uary 2002 complaint time neck pain caused sa id moving bin work twisted body neck also complained shoulder pain dysaesthesia hand time seen mr mill working seven half hour per day dr iving garbage truck also complained pain l4 5 disc lower spine 13 pcb 21 vcc 6 judgment connor v maribyrnong city council vwa 25 mr mill arranged cervical x ray normal 14 arranged mri cervical spine15 showed desiccation intervertebral cervical disc minor broad based di sc bulge c5 6 without neural compromise said consistent twisting injury aggravating age related degenerative dis ease cervical spine 26 seen 19 march 2002 pl aintiff said substantially improved 16 mr mill approved lighter empl oyment duty involving delivery empty wheelie bin light utility mr mill concluded 17 summary mr connor man reported neck shoulder pain twisting injury work detailed radiographic evidence degenerative condition cervical spine involving level outlined mri report evidence lumbar spondylosis two lowest level detailed ct scan report ultrasound clinical evidence tendon damage supraspinatus tendon shoulder attribution cause area certainly involves degenerative component however top suffered aggravation result twisting injury neck shoulder work 27 mr mill unable attribute lum bar problem work although told aggravation considered plaintiff fit light duty would difficulty long term heavy manual work mr mill suggested pain management clin ic plaintiff consult mr mill 28 may 2002 plaintiff treat ed mr andrew hall physiotherapist number occasion treatment resumed 2004 29 january 2003 plaintiff undertook pain management program cedar court broadmeadows attended fi twelve session 6 week period 30 2003 plaintiff also saw dr llan zimet pain management specialist 14 pcb 41 15 pcb 94 16 pcb 42 17 pcb 43 vcc 7 judgment connor v maribyrnong city council vwa report doctor 31 plaintiff referred mr paul urso neurosurgeon saw 15 august 2003 mr urso received hi story two year low back pain relating picking fallen rubbish bin pain developed plaintiff low back radiating buttock leg compla ined paraesthesia heel mr urso described ct scan cervical spine 25 july 200318 normal arranged ct scan lumbar spine said showed disc degeneration l5 s1 arranged mri scan 24 september 200319 showed broad based disc bulge l4 5 central annular fissure broad based disc prolapse l5 s1 without neural impingement 32 mr urso continued review plaintiff 2003 considered l4 5 disc prolapse significant c ausing l5 nerve root compromise however said hat prolapse resolved left persistent abnormality possible neuropathic symptom left l5 nerve root said relationship onset symptom lower spine l4 5 disc prolapse hat work related injury contributed prolapse superimposed age related degenerative change recommend surgical intervent ion thought th degenerative change mild thoug ht progress would sati sfactory plaintiff returned see mr urso 33 end 2003 plaintiff treated dr samararatna doctor goonawarra medical cent january 2004 came care dr lupton family medical centre sunbury 20 dr lupton received history slow onset week neck back shoulder pain almost three year ago started work saw chiropractor gp put work back since currently working three 18 dcb 162 19 pcb 96 97 20 pcb 55 vcc 8 judgment connor v maribyrnong city council vwa hour day three day week counting bin 34 plaintiff complained dr lupton pain forearm swollen feeling finger hand co mplained heel hip head pain stiffness neck c onstant back ache dr lupton continued see plaintiff number occasion 2004 last consultation appears june 2004 noted dr gill another doctor clinic cleared plaintiff return full work treated doctor clinic since time rather treatment clinic appears undertak en mr andrew hall physiotherapist plaintiff earlie r seen mr hall obtained history 21 mr connor first injured mid 2001 driving garbage truck got manually shift bin one bin tipped went catch bin felt intense pull right side neck kept working shift seen doctor goonawarra medical centre sunbury referred chiropractic treatment 35 mr hall report note pain progressed right left shoulder upper thoracic lower lumbar spine 36 march 2009 mr hall described plaintiff suffering persistent pain scenario sought nume rous specialist intervention conservative intervention none resulted sustainable recovery time con idered plaintiff current work capacity although thought exacer bation treating plaintiff time would settle six week recommended exercise program including regular pool exercise 37 treatment mr hall cont inued present time 38 terminated work first defendant plaintiff worked larry labour hire four season waste driving garbage truck performing duty 2001 worked larry labour hire year 2004 2009 casual basis time 21 pcb 50 vcc 9 judgment connor v maribyrnong city council vwa working 12 hour per day five day per week also worked period moreland council undertaking work garbage truck driver work moreland c ouncil continued february 2009 claim period required lot time used sick leave entitlement february 2009 put work moreland council worked since period june 2008 februar 2009 worked moreland council took 12 day work result back pain addition period 3 february 2009 19 february 2009 took 13 day unpaid sick leave 22 39 cross examination23 plaintiff accepted ceased work february 2009 contract renewed accepted offered renewal contract would tried work said would c rack think would succeed 24 february 2009 attempted get job driving concrete truck 25 also applied num ber job interview 26 state think would able heavy truck driving work 40 plaintiff earnings relevant period fluctuate year ended june 2001 earned 42 494 gross thereafter earned varying amount year 2009 earned 37 244 27 41 august 2006 plaintiff attended royal melbourne hospital rmh fallen wet tile home relevant entry clinical note rmh28 indicate 20 august 2006 plaintiff fell wet tile home complai ned pain right hip right leg suffered fracture acetabulum required hospitalisation week 22 exhibit c 23 68 l16 24 69 l18 25 68 l19 26 pcb 25 27 pcb 99 28 exhibit 4 vcc 10 judgment connor v maribyrnong city council vwa little refer ence clinical note aggravation lower back condition 42 10 october 2006 plaintiff agai n admitted relation fall home considered may displacement earlier fracture 43 september 2008 plaintiff attended sunshine hospital record hospital29 indicate 22 september 2008 admitted presenting history standi ng football day hom e tried get chair fell according record plaintiff heavily intoxicated time complained pain lower back episode appears transitory aggravation hi lower back pain short term 44 september 2009 plaintiff suffer ed fracture left foot dropped trailer upon foot plaster six eight week unable work period 45 present time plaintiff complain neck remains stiff sore pain neck come go claim worse cold weather also pain right shoulder 46 worst pain lower spine wh ich say time pain shoot hip leg claim pin needle knee heel unable stand sit lengthy period time walk ing uneven ground difficult take panadeine forte regularly prescr ibed general practitioner claim sleep affected become depressed psychologically upset considered suicide several occasion 47 plaintiff still attends family medical centre sunbury although primary treatment mr hall physiotherapy prescribed 29 exhibit 3 vcc 11 judgment connor v maribyrnong city council vwa fentanyl patch 30 consultant medical opinion 48 aside opinion various treating practitioner plaintiff examined number consultant doctor referred solicitor dr helen sutcliffe occupational physician july 2010 31 received history plaintiff sudden onset neck right shoulder lower back pain moved two large bin 2001 plaintiff complained dr sutcliffe persisting lower back pa radiating buttock also complained neck pain radiating right shoulder pin needle hand ba ck pain radiated leg heel dr sutcliffe con idered plaintiff sustained aggravation disc degener ation spondylosis sult incident work place 2001 said 32 persisting aggravation lumbar disc degeneration sustained extrusion l4 5 disc onset l5 nerve root irritation result injury continued back bilateral leg pain since time injury also provides history persisting neck pain shoulder pain investigation dating 2001 2002 appears disc herniation l4 5 result injury resolved pain continued date raising probability presence neuropathic pain present symptom persisting note ct lumbar spine 1998 indicated small disc herniation considerable sic increased nerve root impingement result investigation dating 2001 2002 49 dr sutcliffe considered hat plaintiff capac ity employment garbage truck driver taking account education medical condition age background past work experience capacity employment currently indefinitely 50 plaintiff examined dr mic hael epstein psychiatrist october 2010 obtained following history33 injury led claim occurred 25 october 2001 whilst 30 pcb 53 54 31 pcb 61 73 32 pcb 70 33 pcb 79 vcc 12 judgment connor v maribyrnong city council vwa shifting heavy bin could reach loader arm said one bin began falling attempted catch falling bin felt severe pain right side neck completed shift reported injury ceased work remained work 18 month 51 dr epstein considered plaintiff addition neck injury october 2001 developed pain dis order pain various part body 52 plaintiff examined mr russe miller orthopaedic surgeon october 2010 34 mr miller obtained history two incident 23 july 2001 25 october 2001 first accident described jumping step truck jarring back result time work symptom settled second incident described pulling two bin one fell gutter causing wrench arm back felt pain neck shoulder back result rema ined work approximately two year empl oyment terminated mr miller diagnosed plaintiff suffered musculo ligamentous strain cervical spine aggravation underlying degenerativ e disease thought prognosis fair addi tion plaintiff suffered musculo ligamentous strain lumbar spine aggravation degenerative disease l4 5 l5 s1 mr miller noted poor response conservative measure surgery unlikely said prognosis fair poor thought underlying condition plaintiff neck lower back aggrav ated particular incident october 2001 considered plaintiff would long term work restriction including repeated bending lifting ights five kilogram ability shift posture regular ly also noted plaintiff problem right shoulder thought work would problematic 53 subsequently mr miller provi ded copy report dr samararatna 4 june 2008 de scribed episode pain 1998 1999 october 2000 basis plaintiff 34 pcb 85 vcc 13 judgment connor v maribyrnong city council vwa performing significant physical work co ping duty prior event october 2001 said opinion unaltered 54 behalf defendant plaintiff examined dr malcolm brown occupational physician june 2003 35 obtained histor plaintiff suffered gradual onset lower bac k pain two three year examination con idered plaintiff lower back pain disc protrusion l4 5 evidenced ct scan 11 december 2001 said plaintiff true sym ptoms sciatica although may compromise left l5 nerve r oot considered plaintiff job garbage truck driver significantly contribute condition time thought plaintiff able undertake normal work duty 55 plaintiff examined dr da vid fish occupational physician october 2008 36 plaintiff described two injury first 23 july 2001 second 25 october 2001 first incident concerned pulling two bin one became entangle twisted sideways result suffered pain right shoulder right side neck lower back week work physiotherapy second incident dr fish read plaintiff claim fo rm al leged lifting 20 kilogram bag time suffered injury back dr fish noted confused sequence event occurred said plaintiff difficult examine pain behaviour comm ented ct scan ta ken december 2001 unchanged 1998 f ilm concluded plaintiff presented widespread pain neck shoulder upper arm lower back paresthesia hand foot thought ther e degree cervical spondylosis although wa unclear whether aggravated either incident lum bar spine considered evidence lumbar disc degener ation referred symptom 35 dcb 163 167 36 dcb 179 183 vcc 14 judgment connor v maribyrnong city council vwa 56 plaintiff examined mr peter battlay surgeon november 2009 mr battlay received history 23 october 2001 plaintiff moving bin one overbalanced result jerked neck shoulder ongoing symptom neck shoulder later pain developed back examined radiology including film 1998 mr battlay described plaintiff suffering degenerative change neck back one stag e left sided disc extrusion l4 5 apparently lesion resolved consider plaintiff suffered true radiculopathy hat complaint pin needle leg arm physical basis consider plaintiff significant injury neck shoulder little treatment area thought wa evidence non physical symptom generally c onsidered plaintiff symptom aging rather anything related workplac e incident c onsidered incident may provided te mporary aggravation underlying disease aggravation resolved 57 plaintiff examined dr davi barton occupati onal physician december 2009 37 dr barton received histor gradually increasing lower back pain related general nature work council garbage truck driver mid 2001 plaintiff said developed neck right shoulder symptom relating general nature work described car accident severa l year examination plaintiff sustained fractured pelvi treated surgically plate screw dr barton described plaintiff suffering fairly long history initially lower back symptom related general nature work also ed plaintiff developed neck shoulder problem considered plaintiff significant degree functional overlay evidenced dram atic presentation widespread area tenderness discrepancy physical ex amination considered 37 dcb 191 196 vcc 15 judgment connor v maribyrnong city council vwa sensory change non anatomical said may exacerbation plainti ff underlying condition work activity exacerbation ceased believe permanent aggravation neck back condition thought unlikely plaintiff would require treatment considered plaintiff would capacity return garbage truck driving 58 finally plaintiff examined dr michael baynes occupational physician april 2009 38 dr baynes noted plaintiff vague historian said progressive devel opment back pain 2001 associated neck shoulder pain plaintiff said related pulling bin early 2001 injury october 2001 chiropractic treatment time work plaintiff complained suffering ongoing lower back neck pain thereafter considered plaintiff suffering chronic pain syndrome associated chronic lower back pain neck pain right shoulder pain said association age related degenerative change affe cting lumbar spine facet joint well degenerative change cervical spine considered objective evidence r adiculopathy evidence abnormal illness behaviour dr baynes ac cepted plaintiff work contributing factor aggrav ation pre existing degenerative change work related aggravation time dr baynes saw plaintiff settled ongoing pain related underlying degenerative change addition plaintiff abno rmal illness behaviour made difficult determine real capacity work given plaintiff working normal duty february 2009 capacity light work providing lifted greater ten kilogram lifting knee level shoulder ight plaintiff position could alter posture regular basis 38 dcb 197 201 vcc 16 judgment connor v maribyrnong city council vwa conclusion medical evidence 59 satisfied evidence hat approximately april 1998 plaintiff commenced suffer pain hi lower back pain continued present time evidence disc disruption ct scan 8 may 1998 39 incident plaintiff jarred back march 1999 episode october 2000 physiotherapy prescription panadeine forte occasional attendance upon doctor problem 60 clear period plaint iff suffering symptom underlying degenerative condition lo wer spine nonetheless brief period away work ab le undertake usual duty driver waste truck plaint iff admitted nev er pain free lumbar spine since 1998 61 significant difficulty applic ation determining injury plaintiff suffered part b ody result employment particular 2001 evidence found plaintiff quite unreliable unable recall specific inci dent injury suffered 62 various different version cidents injury follows plaintiff developed problem neck lower back required manoeuvre heavy bin course employment 20 october 1999 plaintiff affidavit pcb 20 injury neck 23 july 2001 w hen rubbish bin fell reaching worker claim form pcb 100 101 entry clinical note general practitioner 23 july 2001 exhibit 6 report mr hall pcb 50 injury neck back pulling two bin one fell 39 dcb 161 vcc 17 judgment connor v maribyrnong city council vwa near chinese restaurant hopkin street footscray plaintiff affidavit pcb 21 injury lower spine 25 october 2001 result getting truck worker claim form pc b 103 104 incident report pcb 106 entry clinical note general practitioner 30 october 2001 exhibit 6 acute onset back pain 22 oct ober 2001 clinical note general practitioner 22 october 2001 exhibit 6 onset neck right shoulder problem late 2000 relating moving bin work referral hi story mr mill february 2002 pcb 37 38 lower back pain dating 27 ap ril 1998 relating plaintiff employment dr samararatna report 4 june 2008 pcb 48 injury 18 october 2000 plai ntiff jarred back working truck driver history dr samararatna pcb 48 exacerbation pain 23 october 2000 result trip day report dr samararatna pcb 48 clinical note 23 october 2000 exhibit 6 slow onset week neck back shoulder pain approximately 2006 work report dr lupton pcb 55 lower back pain sciatica sult getting truck picking falling rubbish bin approximately 2001 report mr urso dated 1 april 2009 pcb 58 onset neck right shoulder nd lower back pain plaintiff moved two large bin 2001 report dr sutcliffe pcb 63 vcc 18 judgment connor v maribyrnong city council vwa 63 summary difficult note precis ely injury plaintiff suffered circumstance giving rise injury 64 event incident work practice said aggravated plaintiff condition neck lower spine occurred course empl oyment first defendant albeit commencing 1998 aside incident involving slipping tile 2006 injuring pelvis may aggravated underlying lower spinal condition incident course employment activity work related 65 considerable proportion medi cal opinion particularly plaintiff camp effect present time plai ntiff would unable resume previous employme nt garbage truck driver given involves climbing onto vehicle particular manoeuvring heavy bin onto hydraulic lift however sati sfied balance medical opinion particular gi ven plaintiff work history 2009 capacity light modified employment 66 however prefer opinion doctor examined plaintiff behalf defendant particular dr fish dr barton mr battlay plaintiff number non physical symptom also doctor say plaintiff present condition result ageing degenerative process cervical lu mbar spine result one injury view coincide plaintiff history never pain free 1998 general vague uncertain description plaintiff history treating doctor contemporaneous claim form various incident wh ile plaintiff current restricted work capacity result und erlying spondylosis identifiable workplace incident vcc 19 judgment connor v maribyrnong city council vwa cervical lumbar spine one body function 67 satisfied degener ation plaintiff ce rvical lumbar spine may regarded one body function spine generally divided three area cervical thoracic lumbar however difficult separate function three different area spine ama guide evaluation permanent impairment 40 following said paragraph 3 3b difficult separate cerv ical thoracic lumbar sacral spine region functionally sign related different region commonly overlap upper lumbar spine impairment tend behave like thoracic region lower lumbar region involved nerve plexus expand effect different level instance brachial plexus made nerve trunk cervical upper thoracic region sciatic nerve includes component lower lumbar sacral region injury dre model spine region termed cervicothoracic thoracolumbar lumbosacral region model cervicothoracic spine considered comprise 35 per cent total body function thoracolumbar spine 20 per cent lumbosacral spine 75 per cent range motion functional model main region called cervical thoracic lumbar region model cervical spine considered involved 80 per cent individual functioning thoracic spine involved 40 per cent lumbosacral spine involved 90 per cent however structural neurologic vascular activity mediated spine region overlap difficult separate 68 various decision judge court concluded cervical lumbar spine represent one body function 41 69 circumstance satisfied appropriate regard cervical lumbar spine one body function acceptance claim workcover insurer 70 put mr lewis claim de plaintiff respect incident 23 july 200142 25 october 2001 43 claim accepted 40 american medical association guide evaluation permanent impairment 4th edition 41 sagaris v otis building technology judge wodak 29 november 2001 perry v duvoison anor judge wodak 22 june 1995 sulicv ausmalt sheet metal judge higgins 21 december 2007 sammut v p port limited anor judge lewitan 21 march 2002 karavoski v fiora distributor judge dyett 9 november 2007 42 pcb 100 102 43 pcb 103 105 vcc 20 judgment connor v maribyrnong city council vwa workcover insurer say acceptance claim constitutes admission firstly injury described occurred date secondly occurred cour se employment relied upon statement ashley ja ansett australia limited anor v taylor 44 71 believe acceptance claim insurer constitute admission alleged however hese incident must seen one number incident giving ri se aggravation degenerative condition plaintiff cervical lumbar spi ne argument put defendant incident exist rather one series event plaintiff entitled aggregate aggregation various work related incident course employment activity 72 earlier made reference various incident work related activity caused aggrav ation plaintiff underlying condition cervical lumbar sp ines mr middleton argues typical course employment scenario person working example production line undertakes repetitive movement part body suffers injury period time rather argues series unrelated incident consequence cannot aggregated incident case getting truck turning head work activity would trial require separate consideration whether employer negligent 73 relies statement lu v mediterranean shoe pty ltd or 45 proceeding worker suff ered injury right elbow result repetitive forceful use hand period time addition suffered injury right shoulder area close neck result incident two kilogram weight fell upon 44 2006 vsca 171 paragraph 40 following 45 2000 1 vr 511 vcc 21 judgment connor v maribyrnong city council vwa shoulder court appeal found could aggregation two injury 74 buchanan ja stated paragraph 3 think identification body function purpose determining application para definition serious injury s135a 19 act depends upon existence impairment loss physical function definition limited function part body directly affected injury thus consider injured shoulder injured elbow properly regarded resulting impairment loss body function arm another question however whether injury shoulder injury elbow aggregated agree chernov ja injury aggregated result one event incident 75 chernov ja considered aggregation injury said 46 view two injury question impaired two separate body function namely plaintiff right shoulder area right elbow respectively consequently c annot relevantly aggregated 47 since applicant leave recover damage respect injury caused relevant incident proposed defendant relevantly responsible respect injury namely injury causal nexus relevant incident injured worker bring proceeding recover damage injury must shown serious injury relevant difficulty arises leave sought respect one workplace injury said arisen one incident causing impairment one body function circumstance applicant must demonstrate injury serious one leave sought respect two workplace injury whether applicant must establish serious injury whether looked together see combination satisfy requirement definition depend whether affect one body function whether arise relevant incident thus several workplace injury caused impairment several body function impairment cannot relevantly aggregated injury impair one body function arisen one incident may relevantly aggregated purpose determining impairment body function serious long term 46 paragraph 23 47 paragraph 25 vcc 22 judgment connor v maribyrnong city council vwa thus scheme legislation prohibits relevant aggregation two consecutive workplace injury neit serious injury arisen discrete incident notwithstanding impair one body function definition injury includes aggravation pre existing injury permissible analyse impairment caused two injury purpose seeing second injury aggravated first whether resulting additional impairment amount serious injury 76 lu court satisfied pl aintiff suffered injury two separate body function could aggregated 77 shortly decision lu court appeal rj gilbertsons pty ltd v skorsis48 said 49 contended appeal aggravation caused work performed respondent 1993 1995 could serious injury 1991 injury brought serious long term impairment loss body function seems separate injury result one serious injury definition serious injury s135a 19 describes consequence injury rather injury hand injury s135b simply physical mental injury ac cordingly inclined think injury respect suit barred provision s135b could serious injury cause serious long term impairment loss body function notwithstanding earlier injury also cause impairment loss opinion 1991 injury serious even though another injury aggravation existing arthritic condition needed produce impairment loss body function later aggravation may serious although would caused impairment loss body function occurrence 1991 injury 78 however court skorsis considering aggr avation injury whether serious injury c ould exist one body function two separate point time w hen original injury occurred subsequently aggravation comment must seen light 79 accordance ministerial direction plaintiff par material lodged support serious injury application st atement claim 50 proposed statement claim pleads result perform heavy work course 48 2000 vsca 51 49 paragraph 27 50 pcb 13 16 vcc 23 judgment connor v maribyrnong city council vwa employment defendant particular move one overly laden wheelie bin plaintiff suffered injury forced work october 2001 80 statement claim diffe rentiate various incident referred howev er view nothing turn upon time proposed statement claim filed accordance ministerial direction may may form basis plaintiff claim trial requirement statement claim plaintiff ultimate accurate pleading 81 order determine whether aggregation various incident work task necessa ry set provision scheme detail section 134ab 1 act read follows 1 worker entitled compensation respect injury arising course due nature employment 20 october 1999 shall proceeding respect injury recover damage non pecuniary loss except ii iii subparagraphs ii apply permitted accordance section b shall proceeding respect injury recover damage pecuniary loss except ii subparagraph apply permitted accordance section 82 section 134ab 2 act provides worker may recover damage respect injury arising course due nature employment injury serious injury arose 20 october 1999 83 134ab 3 act state 3 subject subsection 4a worker may bring proceeding accordance section unless determination degree impairment worker vcc 24 judgment connor v maribyrnong city council vwa made section 104b worker made application subsection 4 b subject direction issued section 134af worker elect make application subsection 4 ground worker serious injury within meaning section 84 provision set gateway th rough work er must pas order entitled common law damag e workplace injury 134ab make provision range st eps party must undertake order proceed gateway include worker must file applicatio n approved form accompanied various medical material affidavit stated mi nisterial direction requires provision draft statement claim 134ab 5 authority must within 120 day adv ise worker whether injury claimed deemed serious w hether certificate issue 134ab 16 134ab 7 authority required pr ovide medical report material upon proposes rely 134ab 8 certificate issued alter natively court grant leave 134ab 16 b act requires offer counter offer process undertaken 134ab 12 significant cost implication party upon conclusion common law trial 134ab 28 85 clear gateway provisio n order entitled sue pecuniary non pecuniary loss damage worker must suffer injury arising course due nature employment b injury must occurred 20 october 1999 c injury must serious injury defined vcc 25 judgment connor v maribyrnong city council vwa 86 barwon spinner v podolak 51 phillips ja said 52 established sub 1 seen dominant truly preface follows 134ab including sub 2 latter cannot preferred former way independent becomes critical plaintiff identify purpose sub 1 compensable injury referable employment 20 october 1999 employment without identification plaintiff fails establish far extent 134ab applies particular specific injury section applies including leave provision sub 16 b mean turn plaintiff fails establish injury satisfy description serious injury leave given put another way injury linked employment 20 october 1999 injury 134ab address first prohibiting common law proceeding damage respect otherwise permitted accordance section secondly authorising proceeding strict condition laid section condition begin sub 2 though essential part overall scheme exist independently 53 87 uncommon applic ations brought pursuant 134ab court plaintiff allege injury suffered course plaintiff employment specified time october 1999 particular respect event event occurred specified date harvey v methodist lady college 54 beach j ex tempore ruling said 55 authority already referred show nothing impermissible appropriate circumstance plaintiff alleging different aspect employment defendant alternative cumulative cause injury respect plaintiff given leave bring proceeding whether one look solely order judge strong order judge strong context plaintiff application affidavit swore support thereof clear plaintiff leave bring proceeding respect injury suffered october 2001 respect work performed 20 october 1999 honour said 56 secondly mr gorton relied upon medical evidence available time serious injury application compromised county court specifically relied upon reference medical report particular incident occurring 25 october 51 2005 14 vr 622 52 paragraph 13 53 see papercorp pty ltd v nicolaou 2006 vsca 143 paragraph 31 32 54 2008 vsc 425 55 paragraph 11 56 paragraph 12 vcc 26 judgment connor v maribyrnong city council vwa 2001 however fact reference medical report specific incident occurring october 2001 gainsay proposition leave actually granted consent respect injury occurred 25 october 2001 limited respect particular incident might caused injury limitation order confines plaintiff cause action based upon work performed 25 october 2001 plaintiff liberty assert consistent judge strong order work prior time 20 october 1999 cause injury suffered 25 october 2001 whether evidence bear claim point present purpose 88 question honour harvey whether common law proceeding confined precise term order made leave granted serious injury applic ation county court 89 view injury con equences said flow injury must focus considering whether leave ought granted bring common law proceeding providing event alleged productive injury arising course due nature employment occurred 20 october 1999 providing consequence attain serious level leave granted point may various ev ents incident work task go make injury focus injury consequence 90 forrest j kruisselbrink v nationwide intenance service pty ltd 57 took similar view although honour considering applicati plaintiff amend statement cl aim plead incident whic h could strictly found within ambit serious jury certificate granted authority 91 argued mr middleton every incident work task plaintiff undertook could said caused contributed injury 57 2010 vsc 260 vcc 27 judgment connor v maribyrnong city council vwa may pleaded different wa example defendant may negligent failing provide safe system work respect plaintiff duty hauling heavy wheelie bi n negligent plaintiff suffered injury getting garbage truck however view matter concern serious injury leve l may well matter concern common la w trial may require different pleading respect different inci dent matter trial 92 situation however different one come consider injury plaintiff cervical lumbar sp ine occurred october 1999 black hole period inju ry suffered therein precluded act likewise injury suffered side course plaintiff employment defendant course injury suffered example plaintiff slipped tile home 93 submission mr middleton co rrect plaintiff suffered injury course employment repetitive task may face difficulty plainti ff work production line moving article one place another involved lifting twisting bending suffers injury one particular point time may impossible fact medicine determine precisely wh ich aspect work task caused injury likewise worker suffer ed psychological disorder may occurred result workplace bu llying considerable period time may find impossi ble determine precisely incident incident gave rise psychological disturbance 94 view plaintiff prohi bited aggregating various incident work task referred constituting one injury nature extent pl aintiff prior back condition 95 stated plaintiff lower ba ck problem commenced 1986 work short period pulled muscle significant vcc 28 judgment connor v maribyrnong city council vwa problem commenced april 1998 saw dr samararatna complaining low ba ck pain ct scan58 showed minor herniation l4 5 l5 s1 scan also showed moderate facet joint hypertrophy level doctor clinical e show attendance april may 1998 prescription pain relieving medication 59 attendance general pr actitioner rch 1999 plaintiff fell truck jarred hi back prescribed panadeine forte certif ied unfit work number day 96 plaintiff agreed sinc e 1998 never pain free 60 h e accepted various incident ferred period state lower back fluctuated becoming worse time time settling medication 97 october 1999 clear plaintiff sustained range aggravation particular bac k condition significant disagreement amongst doctor hav e examined plaintiff effect various inci dent upon plaintiff spi ne stated prefer opinion defendant doctor current si tuation underlying ageing pr ocess one workplace indent plaintiff affidavit61 identified one incident particularly significant recollection event cross examined poor unable recall various ev ents certainty unable say whether one event le significant others description signific ant event stand contrast various claim form 98 best able wit h tendered material evidence clear plaintiff suffered series incident work task 58 dcb 161 59 clinical record exhibit 6 60 59 l19 61 pcb 21 paragraph 20 vcc 29 judgment connor v maribyrnong city council vwa aggravated underlying degenerative condi tion lumbar cervical spine period 1998 unt il 2001 would appear approximately october 2001 plaintiff period away work returned work undertaking light duty eventually defendant terminated plaintiff work wo rk longer available mr lewis argues empl oyment capacity significantly reduced point clear 2004 pproximately february 2009 resumed work either labour hire compani e municipal council involved garbage truck work acce pt employment ceased february 2009 incapacity rather termination contract 62 99 section 134ab 1 make clear pl aintiff entitled bring proceeding respect injury arising course employment 20 october 1999 injury occurring bef ore date specifically distinguished 100 view medical practi tioner whether treat ing consultant specifically addressed questi nature extent injury consequence october 1999 date matter received passing reference mr miller orthopaedic surgeon examined plaintiff october 2010 63 however provided detail treatment general practitioner ct finding plaintiff admission evidence never pain free time generally practiti oner fully apprised nature extent plaintiff pr e existing lower back problem asked make assessment aggravatio n condition various event occurred october 1999 101 petkovski v galletti64established aggravation 62 see exhibit 2 63 pcb 90 64 1994 1 vr 436 vcc 30 judgment connor v maribyrnong city council vwa pre existing condition injury onus upon applicant establish injury caused aggrav ating incident extent impairment body functi result relevant aggravation said additional aggravation involve serious long term impairment body function 65 102 view plaintiff dischar ged onus even accept consequence combination lower back neck injury achieved serious injury level satisfied consequence specifically related injury occu rred october 1999 plaintiff serious injury 103 setting aside moment failure th e plaintiff meet obligation proof respect post october 1999 jury cause plaintiff current condition underlying degenerative process view plaintiff proved prescribed 134ab 38 e f suffered 40 per cent loss earning capacity result injury lower back neck stated ther e uniformity medical report plaintiff would unable present time resume employment garbage truck driver however period 2004 february 2009 drive garbage tr ucks worked labour hire firm employment february 2009 terminated contract worked expired prefer opinion various defendant doctor including dr baynes dr barton mr battlay plaintiff capacity work modified duty providing certain restriction provided acknow ledge plaintiff limited education difficulty readi ng writing view even taking matter account pl aintiff capacity lighter 65 petkovski 443 4 see guppy v victorian workcover authority bendigo access inc 2010 vsca 164 25 june 2010 paragraph 19 vcc 31 judgment connor v maribyrnong city council vwa work even although work history largely involved driving truck satisfied would range employment open 104 term plaintiff application respect pain suffering satisfied plaintiff suffer ch ronic neck lower back pain requires prescription pain relieving medication time time prefer opinion defendant doctor ther e element non organic functional presentation must exclude consequence consideration plaintiff organic injury accept pain restricted mo vement provide plaintiff consequence could said ignificant marked view achieve considerable level legislation requires little way tr eatment ph ysiotherapy able resume work period 2004 2009 full time basis carrying relatively heavy duty wh ile time away work view capacity undertake hese duty meas ure pain suffering consequence 105 plaintiff application fails respect pain suffering pecuniary loss 106 shall make consequent order

Ali, Paul; O'Brien, Lucinda; Ramsay, Ian --- "Misfortune or Misdeed: An Empirical Study of Public Attitudes Towards Personal Bankruptcy" [2017] UNSWLawJl 40; (2017) 40(2) UNSW Law Journal 1098.txt

ali paul brien lucinda ramsay ian misfortune misdeed empirical study public attitude towards personal bankruptcy 2017 unswlawjl 40 2017 40 2 unsw law journal 1098misfortune misdeed empirical study public attitude towards personal bankruptcypaul ali lucinda brien ian ramsay introductionwhile field bankruptcy scholarship well established far little scholarly investigation social context bankruptcy occurs scholar politician commentator tend discus subject rubric bankruptcy stigma 1 yet discussion generally draw upon interview debtor 2 indirect indicator public opinion newspaper article 3 seldom based upon survey interview member public date three empirical study investigated public attitude bankruptcy way 4 three study carried insolvency service united kingdom uk 2000s part evaluation legal reform introduced theenterprise act2002 5 act reduced period bankruptcy three year one explicit objective reducing stigma associated bankruptcy study detected decline stigmatisation bankruptcy uk 2004 2009 found evidence change caused theenterprise actreforms 6 finding especially pertinent australia policymakers recently outlined series proposal closely resemble uk reform substance rhetoric 7 study valuable resource empirical researcher limited scope surveying sample designed representative general community 8 evoke public attitude aggregate term without attempting identify difference based demographic factor gender age attribute direct personal experience bankruptcy requiring respondent agree disagree series generalised statement bankrupt debtor 9 study offer little scope expression nuanced equivocal view bankruptcy also afford little insight wider cultural political historical influence public perception bankruptcy moreover study make attempt relate finding existing scholarship bankruptcy stigma cause unmanageable debt narrow focus course appropriate given purpose study purely ass impact theenterprise actover relatively short period time study illustrate pressing need finely grained analytically nuanced scholarly empirical research public attitude bankruptcy article describes first scholarly empirical study public attitude bankruptcy conducted jurisdiction based upon online survey 2000 australian study provides unique insight public view bankruptcy prevalence bankruptcy stigma australia study find considerable evidence bankruptcy arouses disapproval many respondent associating bankruptcy poor financial management extravagance greed yet also show australia bankruptcy frequently associated stereotypical figure dishonest high flying businessman 10 sense point significant cultural difference australia united state u stereotypical bankrupt high school dropout unskilled best semiskilled job 11 study also find evidence widespread sympathy debtor modest income go bankrupt consequence unemployment illness unforeseeable event demonstrates many australian view bankruptcy complex phenomenon arising wide variety circumstance study also indicates term stigma fully convey complexity australian attitude bankruptcy show many australian hold rigid unequivocal view subject instead often combine generalised sense disapproval considerable sympathy individual debtor recognition suffering associated financial failure finding important implication australia jurisdiction bankruptcy stigma subject scholarly political debate article begin part ii providing overview academic public policy debate regarding nature extent bankruptcy stigma u uk australia part iii outline aim significance article describes methodology employed author conducting survey 2000 australian early 2016 part iv outline result survey identifies statistically significant difference respondent view based gender age personal experience bankruptcy also outline important theme emerging respondent extended comment open ended question end survey part v analysis finding drawing implication bankruptcy scholar well australian policymakers concludes concept stigma fully encapsulate complex ambivalent attitude revealed survey suggests term shame facilitates nuanced account way bankruptcy command public sympathy even elicits equally strong feeling disapproval ii discourse bankruptcy stigma united statesthe extent nature bankruptcy stigma aroused much controversy u particularly far relates thebankruptcy abuse prevention consumer protection act bapcpa enacted 2005 12 responding rapid significant increase rate bankruptcy filing u thebapcpasought make bankruptcy le attractive restricting availability debt discharge instead directing debtor towards long term repayment arrangement 13 champion argued bankruptcy become first stop unscrupulous debtor rather last resort people severe financial distress 14 maintained contemporary america debt longer source embarrassment status symbol bankruptcy longer stigmatised rather seen flowing event beyond control individual filer 15 proponent declining stigma hypothesis 16 attributed change attitude great variety factor including rising level consumerism increasing access credit 17 greater public awareness bankruptcy filing 18 medium portrayal bankrupt celebrity 19 advertising 20 urbanisation 21 even declining level religious belief 22 critic thebapcpahave argued claim lack firm basis empirical evidence 23 point alternative explanation increasing bankruptcy rate including job insecurity rising divorce rate escalating housing cost deregulation consumer credit turn led many household accrue unsustainable level debt 24 even speculate stigma bankruptcy may increasing due growing importance credit score fact debtor personal detail often published internet 25 empirical study provide insight community attitude bankruptcy u study predominantly based upon theviews individual debtor 26 indirect specialised source asnewspaper commentator 27 jurist government official member credit industry lawyer bankruptcy trustee 28 largest well known empirical study bankruptcy consumer bankruptcy project conducted period several decade beginning 1981 29 study extensively document emotional distress caused bankruptcy noting many debtor go great length conceal circumstance friend colleague author conclude certainly respectable bankrupt u 30 empirical researcher focussed specifically bankruptcy stigma 31 2006 deborah thorne leon anderson published result 37 interview 19 married couple declared bankruptcy 1999 32 documented various strategy individual employed order manag e feeling shame stigmatization course bankruptcy 33 based interview thorne anderson concluded bankruptcy disparage individual debtor american society large 34 declare bankruptcy u within cultural context shame embarrassment assertion moral failure 35 u research equivocal regarding prevalence bankruptcy stigma michael sousa 2013 study found significant proportion debtor feel diluted sense shame relation bankruptcy others express shame instead justif bankruptcy reference exogenous event 36 similarly historical survey article published thenew york time rafael efratfound evidence increasingly sympathetic view towards people go bankrupt course 20thcentury 37 efrat suggested phenomenon might attributable rampant growth american consumerism 38 combined decline personal responsibility tendency shift blame personal fault external cause 39 b united kingdomin contrast relatively liberal accessible u regime uk bankruptcy law described unforgiving highly administrative 40 pointing bankruptcy rate much lower uk u canada 41 scholar argue bankruptcy regarded far negatively england north america 42 others offer quite different reason uk relatively low bankruptcy rate including high cost declaring bankruptcy uk availability cheaper possibly faster surely le bureaucratic form relief unmanageable debt 43 still others point uk consumer bankruptcy increased substantially recent decade relaxation consumer credit law led rapid escalation household debt iain ramsay note non business debtor increasingly amenable declaring bankruptcy adviser citizen advice becoming much willing recommend consumer remedy 44 also argues contemporary uk society bankrupt debtor generally viewed sympathy rather disdain 45 ramsay concedes journalist continue employ narrative living beyond one mean allege existence rampant debt culture uk 46 yet maintains many member general public associate bankruptcy desperate case vulnerable people trapped debt need assistance 47 link shift recent law reform initiative introduction debt relief order debtor asset citing change ramsay argues uk public policy manifest considerable uncertainty responsible indebtedness 48 reform effected theenterprise actbear testament shift act uk government reduced duration bankruptcy three year one 49 reform framed measure promote entrepreneurial culture basis fear failure act powerful disincentive potential entrepreneur 50 introducing proposal secretary state trade industry stephen byers explicitly stated aim legislation influence public attitude towards bankruptcy 51 mr byers claimed uk cultural attitudesare among least supportive entrepreneur respect lower comparable economy 52 observed bankruptcy law drew distinction honest unlucky undercapitalised reckless fraudulent 53 believe distinction made stated vast majority honest bankrupt continue stigmatised association dishonest 54 consistent aim theenterprise actintroduced new punitive measure directed culpable bankrupt imposed specific sanction bankrupt deemed acted dishonestly recklessly including bankruptcy restriction order bro imposed 15 year discharge 55 court may impose bro wide range ground including fraud incurring debt reasonable expectation able pay gambling rash hazardous speculation unreasonable extravagance neglect business affair way materially contribute increase extent bankruptcy 56 publishes name address individual subject bros together detail offending conduct searchable website 57 purpose help lender public differentiate culpable non culpable bankrupt 58 thus implication relieve honest debtor burden unwarranted stigma since introduction theenterprise act sought gauge impact series empirical study attitude bankruptcy result study published 2004 2007 2009 respectively 59 author knowledge published study attitude bankruptcy based upon survey general public study involved survey administered three distinct group bankrupt debtor businesspeople third group representing view general public 60 member public asked whether stigma attaching bankruptcy 61 asked question designed elicit reason view asked respond statement bankrupt failure bankrupt dishonest necessarily bankrupt fault bankruptcy common place 62 also asked stigmatising impact specific element bankruptcy law procedure h aving toattend court h aving meet people authority official receiver subject restriction able company director 63 highly specific technical question sense problematic assuming respondent professional personal experience bankruptcy 64 seems likely many would firm view stigmatising effect specific procedure legal provision prior completing survey 65 also important note format survey imposed strict limitation respondent capacity express view respondent invited agree disagree statement posed interviewer choosing one six option likert scale 66 unable qualify nuance view volunteer additional reason view place view within wider social economic political context necessarily imposed significant restriction data available analysis three study record modest decline public disapproval bankruptcy 2004 2009 2004 53 per cent general public agreed stigma attaching bankruptcy 19 per cent disagreeing 28 per cent expressing opinion 67 2009 43 per cent general public agreed stigma attaching bankruptcy 23 per cent disagreed 33 per cent expressed opinion 68 2009 report observes extent reduction perceived stigma may directly attributable e nterprise ct unclear 69 note significant change attitude 70 appear occurred 2006 time personal insolvency provision e nterprise ct force number year 71 study point take time new legislation settle become known accepted yet also suggests increasing public tolerance bankruptcy might due legislative change factor increasing prevalence bankruptcy publicity attracted study speculates declining public disapproval bankruptcy might simply indicate growing awareness bankrupt actually mean 72 c australiathe australian government recently announced intention modify australia bankruptcy law order promote innovation economic growth language closely echo rhetoric surrounding theenterprise act australian government expressed desire encourage entrepreneurial endeavour reduce stigma associated bankruptcy 73 april 2016 released discussion paper outlined proposal reduce period bankruptcy three year one year encourag ing australian embrace risk learn mistake ambitious experiment find solution 74 said reducing period bankruptcy would stimulate entrepreneurial activity economic growth job creation future prosperity 75 making case proposed reform government discussion paper noted bankruptcy result necessary risk taking misfortune rather misdeed 76 claimed time reduction period bankruptcy would reduce stigma associated business failure 77 presumably making wider community accepting bankruptcy inevitable part business life 78 government discussion paper explain practical term relatively technical change law would influence view general public moreover framing reform language entrepreneurship innovation offer guidance reform would influence public attitude towards non business consumer bankruptcy 79 significant omission given bankruptcy constitute 78 per cent bankruptcy australia 80 claiming reform would influence public attitude towards bankruptcy government little pre existing empirical evidence upon draw australian financial security authority afsa publishes extensive statistical data regarding bankruptcy form personal insolvency website issue regular medium release describe individual case 2012 produced biennial report analysing significant trend data however data relates primarily nature extent debt discharged bankruptcy cause bankruptcy nominated debtor demographic characteristic people go bankrupt 81 date afsa undertaken independent research public perception bankruptcy comparable undertaken uk academic research subject also limited 1995 martin ryan published monograph outlining result interview 77 bankrupt individual late 1980s 82 study remains valuable resource australian empirical researcher briefly touch question social stigma 83 source newspaper also offer little insight public perception bankruptcy australia 1990s disgraced business tycoon alan bond christopher skase attracted widespread condemnation incurring multi million dollar debt declaring bankruptcy continuing live extravagant lifestyle claiming destitute 84 early 2000s bankruptcy briefly returned prominence group sydney barrister exposed used system avoid substantial income tax debt 85 yet apart sensational account high profile rogue debtor 86 medium seldom report bankruptcy case rare exception 87 middle class 88 bankruptcy almost invisible australian public sphere afsa data indicates vast majority bankrupt debtor failed corporate entrepreneur instead come relatively modest socio economic background common occupation among people go bankrupt clerical administrative role 89 category includes logistics clerk conveyancer legal clerk human resource clerk debt collector library assistant well many occupation afsa note although people clerical administrative role constitute approximately two per cent employed workforce 90 make six per cent people go bankrupt australia 91 income reported people bankruptcy present even starker contrast stereotypical image bankrupt high flying businessman barrister 2011 92 last year detailed figure available 39 per cent bankrupt debtor earned 30 000 70 000 year 93 52 per cent reported individual annual income le 30 000 since minimum wage time 30 643 94 figure strongly suggest half bankrupt population unemployed underemployed 12 month leading bankruptcy borne afsa data cause bankruptcy 2013 14 34 per cent declaring non business bankruptcy cited unemployment loss income main cause insolvency 95 recent australian empirical research confirms vast majority australian bankruptcy failed corporate entrepreneur one australian study cast bankruptcy increasingly middle class phenomenon 96 analysing data published afsa 1997 2007 study found personal insolvency affect broad section population 97 study concluded correct assume personal insolvent wealthy avoiding meeting financial obligation instead bankruptcy affect broad section australian society represented middle class 98 another recent study found significant proportionof australian go bankrupt fact suffer long term entrenched poverty 99 based survey australian financial counsellor study reported many go bankrupt experience persistent entrenched disadvantage due low income reliance upon social security ill health disability related factor 100 finding suggest significant disjuncture somewhat dated stereotype high flying corporate entrepreneur real experience circumstance australian bankruptcy system iii studya aim significancethis article document first scholarly empirical study community attitude bankruptcy carried jurisdiction aim ass extent bankruptcy regarded stigmatising shameful condition australia respect represents australian counterpart research conducted uk study asked member general public express view whether bankruptcy due fault part individual debtor whether generally consequence bad luck drawing data attempt gauge extent bankrupt debtor suffer stigma extent elicit sympathy public domain however several important respect present study differs extends beyond research noted respondent study asked answer series question response expressed likert scale contrast study provided respondent opportunity leave extended comment could qualify view bankruptcy way offered respondent chance provide nuanced perspective bankruptcy simply inviting agree disagree blunt statement stigma attached bankruptcy 101 importantly extended comment also allowed respondent place bankruptcy social cultural context rather simply presenting expression individual choice present study also differs research analysis data collected research simply reported view expressed individual general public aggregate term alongside view bankrupt business 102 contrast present study seek differentiate demographic group within general population carrying statistical analysis order identify statistically significant difference attitude based upon gender age personal experience bankruptcy factor moreover unlike research present study interprets finding context longstanding political scholarly debate nature cause extent bankruptcy stigma sense purview significantly wider research sought specifically ass impact theenterprise act study important implication scholarship public policy australia jurisdiction public perception bankruptcy subject scholarly political debate study examines extent bankruptcy indeed stigmatised condition offer insight nature negative attitude towards bankruptcy extent public sympathy people go bankrupt also explores cultural historical factor play part shaping attitude bankruptcy including stereotypical image archetypal bankrupt study offer valuable source empirical evidence inform australian government current reform agenda broadly contributes growing international literature bankruptcy stigma b methodologythe research team designed online survey consisting 29 question first four question demographic asking respondent state gender year birth postcode highest formal qualification 103 followed four factual question regarding process declaring bankruptcy consequence bankruptcy 104 survey asked respondent identify significant reason people get serious unmanageable debt ranking following five potential reason order importance lack self control rising cost living extravagance greed advertising easy access credit card failing save money emergency respondent asked express personal opinion regarding people go bankrupt responding statement thinkthat peoplewho go bankrupt deserve sympathy thinkthat people go bankruptare unlucky 105 asked express opinion view australian generally responding statement australian generallybelieve people go bankrupt deserve sympathy 106 survey asked respondent whether ever bankrupt whether friend relative partner ever bankrupt last two question open ended respondent asked tell u word image name cross mind think bankruptcy also invited tell research team anything view people go bankrupt survey administered online professional research company company recruited survey participant panel consumer register express purpose participating research study 107 research team asked company obtain 2000 completed survey asked impose quota ensure respondent survey broadly representative australian population company imposed quota gender age state territory residence 108 survey tested initial group 124 respondent launched 9 may 2016 survey closed 23 may 2016 2014 respondent completed full 109 number statistical test employed analyse survey data 110 iv resultsa respondent view bankruptcy1the cause unmanageable debtwhen asked significant reason people get serious unmanageable debt respondent expressed range view thirty three per cent nominated lack self control primary cause unmanageable debt 22 per cent nominated extravagance greed others cited external factor primary cause unmanageable debt 20 per cent choosing advertising easy access credit 16 per cent choosing rising cost living 10 per cent selected failing save money emergency primary cause unmanageable debt 2people go bankruptwhen asked state view general characteristic people go bankrupt respondent tended moderately critical rather sympathetic majority 65 per cent agreed people go bankrupt bad managing money significant minority 36 per cent agreed people go bankrupt extravagant greedy though 16 per cent agreed people go bankrupt lazy dishonest untrustworthy time substantial group respondent expressed sympathetic attitude thirty one per cent agreed people go bankrupt deserve sympathy 24 per cent agreed unlucky 3perceptions wider community attitudeswhile respondent personal view relatively moderate believed general public strongly critical people go bankrupt fifty three per cent agreed australian generally believe people go bankrupt extravagant greedy 38 per cent agreed australian generally believe people go bankrupt dishonest untrustworthy 27 per cent believed australian generally viewed people bankruptcy unlucky 21 per cent agreed australian viewed people bankruptcy deserv ing sympathy b difference within sample1gendermale respondent likely cite personal attribute cause debt woman likely attribute social economic condition 111 similarly asked state view people go bankrupt men likely agree people extravagant greedy bad managing money lazy dishonest untrustworthy 112 asked view australian generally woman likely adopt sympathetic attitude men likely agree australian generally believe people go bankrupt dishonest untrustworthy 113 2ageolder respondent 114 somewhat le sympathetic people go bankrupt younger people sample younger people much likely attribute debt rising cost living 115 older people likely cite extravagance greed 116 advertising easy access credit card 117 younger people likely say people go bankrupt unlucky 118 older people likely say bad managing money 119 extravagant greedy 120 3other attributesdegree holder somewhat le sympathetic towards people bankruptcy people tertiary qualification difference marked 121 difference view respondent living metropolitan area living rural regional area also difference respondent socio economically advantaged disadvantaged 122 4personal experience bankruptcythose respondent bankrupt le critical bankruptcy others sample much likely say people go bankrupt deserve sympathy 123 unlucky 124 much le likely attribute unmanageable debt extravagance greed 125 also le likely say people go bankrupt bad managing money 126 extravagant greedy 127 dishonest untrustworthy 128 compared overall sample bankrupt slightly likely agree australian generally believe people go bankrupt deserving sympathy 129 c summarythe following table present respondent view cause unmanageable debt table 1 characteristic people go bankrupt table 2 view australian generally regarding characteristic people go bankrupt table 3 table 1 respondent view cause unmanageable debtmost significant reason serious unmanageable debt whole sample men woman olderrespondents youngerrespondents respondent bankrupt respondent never bankrupt lack self control33382728352833rising cost living1613208203216extravagance greed22241928191022advertising easy access credit cards20162325172219failing save money emergencies109111110910table 2 respondent view people go bankrupt think people go bankrupt wholesample men woman olderrespondents youngerrespondents respondent beenbankrupt respondent never beenbankrupt deserve sympathy31303130314930are unlucky24232518274723are bad managing money65686372625166are lazy16181314161715are extravagant greedy36413142332637are dishonest untrustworthy16191416161216table 3 respondent view australian generally think people go bankrupt australian generally believe people go bankrupt wholesample men woman olderrespondents youngerrespondents respondent beenbankrupt respondent never beenbankrupt deserve sympathy21222120222921are unlucky27262925283327are bad managing money71717280676672are lazy29293021333129are extravagant greedy53545155524453are dishonest untrustworthy38403632403038d extended commentsalmost respondent provided extended comment end survey response question 11 tell u word image name cross mind think bankruptcy question 12 would like tell u anything view people go bankrupt response question discussed concurrently 1disapproval sympathysome respondent expressed strong disapproval individual go bankrupt tupid thoughtless manage one wrote c see reason bankruptcy one stupid wrote another 130 nobody forced debt one respondent wrote f become unable meet commitment deserve sympathy heir lack foresight surprisingly one harshest expression disapproval came respondent bankrupt dishonest greedy untrustworthy declared bankruptcy thought nothing ripping bank wrote respondent time many respondent expressed sympathy people go bankrupt feel sorry people lose home afford mortgage payment due losing job one wrote people feel sorry suddenly unemployed due company failure wrote another another wrote need work towards lifting bad stigma working help people 2 high flyer little fellow many respondent referred high profile corporate bankruptcy often naming individual alan bond christopher skase response question 11 107 respondent named bond 48 mentioned skase 131 individual almost always cited contempt many respondent drew distinction infamous corporate bankrupt ordinary wage earner small business owner investor think little investor go bankrupt unlucky due trusting people knowingly rip big investor bond skase outright crook wrote one h igh flyer go bankrupt hide asset live like king bankruptcy b ond kase little fellow chance wrote another one wrote seems easy way people certain class may bankrupt still access million appears business strategy wealthy last resort regular people another wrote guess lot reason people go bankrupt shame people greedy go bankrupt h owever hard working person trying get tough go bankrupt make real sad come respondent eloquently summarised distinction follows b ankruptcy seems two polarity high flyer christopher skase alan bond rise ash burned result bankruptcy second face bankruptcy lose job suffer mental illness illness impact like house card situation one crisis fall come crashing 3character moral attributesother respondent drew distinction two category people bankruptcy based upon difference wealth power social class upon character inherent moral attribute attributed bankruptcy inability manage one finance generally good people concept restraint budgeting one wrote borrow pay back debt circle keep going around endlessly manage money burn hole pocket wrote another others associated bankruptcy dishonesty willingness exploit legal system creditor sympathy others friend unable manage money led rather extravagant lifestyle able con others supporting one wrote 4chance external circumstancesmany respondent expressed view bankruptcy often due chance external force one wrote think people go bankrupt reason greed may lose house fire family member may health condition cost lot money fix think circumstantial type thing think ever person encounter bankrupt different story encounter people situation due poor money management addiction drug gambling etc sheer greediness also encounter people trying right thing family hardship helping others several stated believed bankruptcy could happen anyone day age one wrote real chance anyone could go bankrupt rising cost everyday living 132 even said could imagine going bankrupt certain circumstance one wrote come close insolvency fault sympathize anyone chooses bankruptcy enable start others wrote imagine scenario would need declare bankruptcy slight realistic could happen series event unfold w ith cost living rising situation could find quickly take eye r finance toolong 5consumer credit irresponsible lendinga small number respondent identified bankruptcy necessary legitimate part commercial life recognising benefit creditor well debtor one wrote whilst bankruptcy normally come poor cash flow management necessary process allows debtor effectively start period managed living also allows creditor defined loss permanently write loss rather dragging sometimes costly process recovery appropriate process available whilst abused effective tool side equation think le anyone us bankruptcy process manage overwhelming debt however unlikely become creditor future however many respondent argued bank credit provider partly blame many bankruptcy due irresponsible lending high interest rate unwillingness assist struggling business 133 easy get debt amount credit loan available one wrote think regulation wrote another happen money made lending credit huge interest rate respondent expressed view small business fail regularly sometimes fault caused bank calling loan unprepared assist tough economic condition 6government policiessome respondent framed bankruptcy broadly political term linking government policy setting social security employment health area one respondent put personally believe government lot answer connectionto bankruptcy cutting medicare 134 maintaining pension liv e able level cutting pension inflation cost living keeping wage minimum generally caring pensioner also low income earner another wrote one lost everything got back foot recession took away year hard work building respected business respect government cause happen third described experiencing evastation take course due huge interest rate rise caused incompetent treasurer killed small business 7emotionemotional state figured strongly response question 11 12 seventy six respondent used word sad sadness response question 11 14 used word answering question 12 44 respondent used broadly synonymous term depression 135 misery despair anguish grief respondent mentioned many emotion feeling mental state including shame embarrassment humiliation disgrace 136 hurt desperation anxiety loneliness loss self esteem self worth stress respondent evoked emotion indirectly example reference cry people cry child suicide v analysisa key findings1public disapproval bankruptcythe result survey indicate negative attitude bankruptcy relatively common australia attitude vary significantly according gender age education level geographic location socio economic status 137 noted respondent asked nominate cause unmanageable debt tended attribute blame individual debtor citing factor lack self control extravagance greed sixty five per cent respondent agreed people go bankrupt bad managing money 36 per cent agreed people go bankrupt extravagant greedy disapproval bankruptcy still apparent respondent asked view australian generally 16 per cent personally believed people go bankrupt dishonest untrustworthy 38 per cent said australian generally held view whereas 31 per cent personally agreed people go bankrupt deserve sympathy 21 per cent believed australian generally held view open ended question end survey reinforced finding respondent used section express strong disapproval people go bankrupt asserting personal quality lack foresight stupid ity dishonesty cause problem 2the stereotypical bankruptmany respondent closely associated morally culpable bankruptcy wealth particular business entrepreneurship respondent frequently drew distinction ordinary bankrupt deserving sympathy culpable corporate bankrupt whose behaviour deserved condemnation one respondent summed claiming 2 type bankrupt either dodgy business type phoenix 138 dodgy company poor bugger unfortunate life get enough government support manage miser ble pension etc government try rip people comment frequently referred specific individual alan bond christopher skase many others referred dodgy business type much general term suggesting figure bond skase seen exceptional rather exemplifying certain aspect corporate culture respect survey suggests australia popular negative stereotype bankruptcy fundamentally different current u bankrupt stereotype twenty something male high school dropout unskilled best semiskilled job 139 australian stereotypical bankrupt appears occupy position opposite end socio economic scale posse remarkable ability go l v ing comfortably despite bankrupt 3reluctance generaliseat time survey show many australian accept negative stereotype surrounding bankruptcy least recognise stereotype fail reflect true circumstance many people bankruptcy system several respondent used open ended question present nuanced account bankruptcy protesting impossible generalise circumstance lead bankruptcy character people go bankrupt one respondent wrote lot people go bankrupt crook genuine e ach case judged particular people u nfortunately crooked one make people frown one tried best failed theme emerged repeatedly respondent answer open ended question many expressing concern honest debtor tainted association dishonest endorsed negative stereotype also sympathising people go bankrupt particular circumstance one wrote hear term bankrupt tend think two group people first come mind deliberately fraudulent maybe business run debt going bankrupt renege payment group honest people maybe fallen hard time whatever reason think people work hard make sacrifice try hard keep afloat eventually fail business despite best effort sympathetic people think treated differently go bankrupt deliberately carelessly several respondent appeared deeply equivocal casting bankrupt debtor reckless extravagant time absolving intentional wrongdoing appeared unable decide reflected use qualifier may possibly many bankrupt mayhave overcommitted good business wrote one respondent necessarily mean greedy corruptalthough many bankrupt possibly emphasis added 140 4sympathy people go bankrupta substantial minority positively inclined towards people bankruptcy 31 per cent agreeing people go bankrupt deserve sympathy slightly le 36 per cent agreed extravagant greedy similarly 24 per cent agreed people go bankrupt unlucky final part survey respondent denied bankruptcy negative association one stating b ankrupt cy happen anyone actually quite common nothing ashamed extended comment many respondent expressed considerable sympathy people go bankrupt evoking bankruptcy deeply emotional distressing experience discussed 76 respondent used word sad sadness response question 11 44 respondent associated bankruptcy depression many others used similar orrelated term despair misery 141 result underscore sharp distinction drawn many respondent calculating opportunistic corporate bankrupt popular mythology desperate individual resort bankruptcy hit rock bottom b policy implications1suspicion business related bankruptciesthe result study indicate australian policymakers politician may meet resistance attempting reframe bankruptcy normal even desirable aspect entrepreneurial culture suggest australia stigma attaching bankruptcy fact direct result association business entrepreneurship particularly notorious corporate bankrupt 1990s government discussion paper implicitly recognises stating cultural shift necessary order create ecosystem allows entrepreneur fail several time achieve success 142 suggests reduction period bankruptcy three year one encourage businesspeople embrace risk learn mistake ambitious experiment find solution 143 yet explain change serve reduce stigma associated business failure sense making wider australian public favourably disposed towards people go bankrupt result survey suggest reductionin period bankruptcy might even exacerbate public hostility isperceived enabling repeat offend ing dodgy business 144 indeed repeat bankruptcy course business precisely kind behaviour attracted greatest ire among surveyed one respondent expressed attitude particular clarity demanding high flyer reboot career fly high life self perpetuating cycle several others associated bankruptcy people close business ripping people starting another name consumer advocate voiced similar concern observing p olicies intended encourage risk taking experimentation facilitate repeated poor behaviour important rather facilitating fresh start bankruptcy become mechanism undermining effectiveness consumer protection trade practice law facilitating unlawful unconscionable conduct 145 2sympathy consumer debtorsthe survey also demonstrates many australian concerned impact bankruptcy upon people whose financial difficulty arenotbusiness related rather result unemployment ill health simply inadequate income several respondent expressed sympathy people go bankrupt due unexpected change circumstance many linked bankruptcy loss job others mentioned health problem divorce even natural disaster event lead people go bankrupt fault expressed strong view done help people 146 category debtor mentioned government discussion paper despite fact non business bankruptcy constitute 80 per cent bankruptcy australia 147 finding suggest might fact considerable public support government proposed reform presented stimulus innovation measure designed assist ordinary consumer accumulate unmanageable debt result misfortune unforeseen circumstance 3treatment culpable bankruptsthe study also demonstrates many australian feel considerable resentment towards misuse bankruptcy system order evade financial obligation facilitate extravagant lifestyle respondent identify behaviour exclusively consumer businesspeople rather identified pattern conduct typified greed dishonesty comment suggest public response new regime depend extent treatment dishonest fraudulent debtor developing measure deal debtor government might look uk senterprise act particularly bro regime bro regime attracted criticism number ground commentator observed theenterprise actconfers extremely wide discretion court relation issuing bros offering little guidance discretion exercised 148 others objected distinction culpable honest bankrupt inherently subjective raising uncomfortable question proof court required adjudicate 149 time capacity bros influence public opinion remains doubt survey general public conducted 2006 2007 found le third respondent agreed new regime protected public dishonest reckless bankrupt moreover found le quarter respondent heard bros none could accurately describ e 150 concluded although detail bros publicly available individual unlikely understand significance bro recorded bankrupt use information make informed decision dealing bankrupt 151 finding suggest australian government decide implement special measure designed identify culpable bankrupt must provide clear legislative guidance court ensure consistent implementation 152 also suggest measure limited capacity influence prevailing public attitude c implication bankruptcy scholarship1bankruptcy stigmaby illustrating ambivalence public attitude towards bankruptcy study important implication field scholarship concernedwith bankruptcy stigma despite using term evolution shift 153 decline 154 implying spectrum view study generally cast public attitude divided two clearly delineated camp one disapproving punitive sympathetic 155 according narrative bankrupt individual either viewed cheater charlatan deeply pitiable people extreme edge hardship family dying child year joblessness 156 study show australia least public attitude bankruptcy equivocal people feeling degree sympathy combined element censoriousness noted large proportion respondent 65 per cent agreed people go bankrupt bad managing money suggesting moderate disapproval bankruptcy relatively widespread yet small percentage respondent demonstrated strong disapproval agreeing people go bankruptare lazy dishonest untrustworthy 157 slightly respondent prepared agree people go bankrupt unlucky deserve sympathy strong expression unqualified sympathy comparatively rare 158 ambivalence emerged much starkly respondent answer open ended question end survey already noted many used section survey point difficult generalise cause debt character motif people go bankrupt many respondent dwelt poor money management underlying cause bankruptcy suggesting behaviour regrettable time understandable many others drew contrast two perceived type bankruptcy system unscrupulous con artist genuinely struggling repeatedly respondent expressed view people go bankrupt legitimate reason response unforeseen circumstance others avoid responsibility cheat system several expressed dissatisfaction legal loophole facilitate dishonest behaviour people latter category time several others stated done assist people go bankrupt particularly happens fault suggests rather basing view stereotype rigid ideological position many australian regard bankruptcy complex difficult public policy issue based result appears australian go bankrupt universally stigmatised rather regarded mixture contempt sympathy uncertainty expressing strong varied emotion regarding debt financial distress people go bankrupt respondent survey illustrate limitation term stigma way understanding australian attitude towards bankruptcy 2bankruptcy shamedescribing bothsubjective individual feeling collective social norm term shame way better suited describing bankruptcy censorious impersonal term stigma discussion stigma presume detachment alienation stigmatised individual people stigmatised erving goffmann classic formulation stigmatised individual marked differentness attribute turn u away breaking claim attribute u making seem quite human 159 similarly already noted scholarship bankruptcy stigma frequently delineates public attitude two distinct group unqualified sympathy rigid extreme disapproval analysis disapprove bankruptcy treated sympathy plight individual bankrupt account shame rarely figure important distinctive aspect social attitude bankruptcy empirical study conducted thorne anderson 2006 sousa 2013 partial exception refer shame describing experience people gone bankrupt yet study use term shame stigmatization 160 le interchangeably 161 moreover conceive shame purely personal experience part bankrupt debtor consider way notion shame inform attitude behaviour wider community contrast growing body interdisciplinary scholarship identifies shame distinct phenomenon one social psychological 162 thomas scheff one leading theorist shame regard premier social emotion 163 illustrating intimate link self society 164 scheff view shame primary mean individual integrated social group deterred violating social norm indeed writes coercive disciplinary power shame profound even acknowledging risk offence citing gershen kaufman scheff observes taboo shame strict behave shame exist 165 contrast goffmann account stigma based upon inherent irrevocable differentness 166 scheff describes shame fundamentally predicated affective relationship person shamed person cause witness shaming writes individual sensation shame derives belief viewed negatively another person whose good opinion valued desired 167 sense scheff characterises shame mutual intersubjective experience 168 one jointly experienced individual shamed person witness shaming experience profoundly unpleasant party produce feeling alienation threatens sense connected one another 169 response survey reflect intersubjective experience shame respondent used term describe subjective emotional state bankrupt debtor collective set norm define bankruptcy wider social sense noted earlier 41 respondent used term shame describe bankruptcy several others used related term embarrassment humiliation disgrace term shame sometimes employed normative sense denote widely held negative attitude value regarding bankruptcy non payment debt culture going bankrupt quite shameful wrote one respondent exemplifying use term yet several respondent used word shame much emotive fashion describe psychological state hypothetical bankrupt individual response frequently mentioned shame conjunction distressing emotion associating bankruptcy shame stigma sadness helplessness debt shame anguish losing one home distress shame disaster hardship shame despair suffering explicitly linked shame destruction relationship ranging broken family loss friend insult people insurance company response indicate unlike strictly pejorative stigma term shame conveys much varied set feeling bankruptcy reflecting widespread social disapproval bankruptcy term shame also evokes intensely difficult painful experience bankruptcy perspective individual debtor sense indicates measure persistent public sympathy people go bankrupt thus bearing testament ongoing social bond 170 debtor wider community bankruptcy viewed ashameful rather thanstigmatised condition becomes possible understand deeply ambivalent even time contradictory attitude expressed respondent survey language stigma connotes unqualified contempt casting debtor different quite human language shame capture enduring empathetic bond debtor society bond implies shared set norm thus serf basis condemning debtor violates norm time requires recognition debtor humanity thus pain likely experience result going bankrupt outlined several respondent expressed disapproval people go bankruptwhile alsoexpressing sympathy several described bankrupt debtor reckless extravagant foolish recognising even debtor often good people intend default loan abandon financial obligation importantly even respondent expressed sympathetic view acknowledged bankruptcy source shame reason frequently imagined bankruptcy painful experience marked sadness humiliation despair finding offer alternative many prevailing scholarly account posit two diametrically opposed view bankruptcy unqualified sympathy unqualified contempt illustrate limitation discourse stigma context potential theory shame furnish accurate account contemporary social attitude bankruptcy vi conclusionthis study illustrates many australian continue harbour negative attitude towards people go bankrupt particularly connection business dealing show stark contrast u australian stereotype regarding bankruptcy involve low income unemployed people instead focus apocryphal figure business high flyer sense demonstrates profound lasting impact historical event certain notorious bankruptcy 1990s shaping australian attitude towards bankruptcy time study reveals many australian draw sharp distinction high flying bankrupt ordinary struggling individual go bankrupt result misfortune show many people view bankruptcy complex issue accept debtor declare bankruptcy wide variety circumstance result important implication australian government current proposal modify bankruptcy law order promote innovation entrepreneurship risk taking discussed seems likely reduction discharge period business related bankruptcy might factincreasethe stigma attaching bankruptcy reinforcing association bankruptcy unscrupulous entrepreneur contrast survey suggests australian might amenable government proposed reform cast mean assisting ordinary consumer become overwhelmed debt need help start also suggests government carefully consider uk government attempt address dishonest reckless conduct bankrupt debtor creation bro regime generally study illustrates inadequacy term stigma way describing public attitude towards bankruptcy stigma implies rigidly negative attitude survey show many australian adopt far qualified approach viewing bankrupt debtor censure sympathy study demonstrates bankruptcy highly emotive subject associated powerful affective state sadness despair particularly shame point potential future scholarship draw upon interdisciplinary source study shame order develop nuanced account contemporary attitude towards bankruptcy associate professor melbourne law school university melbourne research fellow melbourne law school university melbourne harold ford professor commercial law director centre corporate law security regulation melbourne law school university melbourne research supported australian research council linkage grant lp130101022 author thank dr malcolm anderson carrying statistical analysis described article also thank anonymous reviewer helpful comment earlier draft 1 see eg teresa sullivan elizabeth warren jay lawrence westbrook le stigma financial distress empirical analysis extraordinary increase bankruptcy filing 2006 59stanford law review213 michael sousa bankruptcy stigma socio legal study 2013 87american bankruptcy law journal435 rafael efrat bankruptcy stigma plausible cause shifting norm 2006 22emory bankruptcy development journal481 2 see eg sousa n 1 3 see eg efrat shifting norm n 1 4 insolvency service uk attitude bankruptcy report 2004 http webarchive nationalarchives gov uk 20121021124135 http www insolvencydirect bi gov uk insolvencyprofessionandlegislation policychange attitude report attitudestobankruptcy1 pdf insolvency service uk attitude bankruptcy revisited report 2007 http webarchive nationalarchives gov uk 20130702083659 http www insolvencydirect bi gov uk insolvencyprofessionandlegislation policychange abrevisited abrevisitedmenu htm insolvency service uk enterprise act 2002 attitude bankruptcy 2009 update report october 2009 http webarchive nationalarchives gov uk 20130702083658 http www insolvencydirect bi gov uk insolvencyprofessionandlegislation policychange ab2009 abrevisitedmenu htm see also insolvency service uk enterprise act 2002 personal insolvency provision final evaluation report november 2007 http webarchive nationalarchives gov uk http www insolvency gov uk insolvencyprofessionandlegislation legislation evaluation finalreport report pdf 5 enterprise act 2002 uk c 40 enterprise act 6 insolvency service uk enterprise act 2002 attitude bankruptcy 2009 update n 4 5 20 see also insolvency service uk final evaluation report n 4 50 3 7 australian commonwealth government expressed desire encourage entrepreneurial endeavour reduce stigma associated bankruptcy reducing period bankruptcy three year one related measure include proposal consult relevant industry licensing association view aligning restriction reduced period bankruptcy restriction would automatically reduced consequence reduction period bankruptcy treasury cth improving bankruptcy insolvency law proposal paper national innovation science agenda april 2016 5 9 http www treasury gov au consultationsandreviews consultation 2016 improving bankruptcy insolvency law 8 insolvency service uk attitude bankruptcy n 4 6 9 statement included following stigma attached bankruptcy bankrupt failure bankrupt unlucky see insolvency service uk attitude bankruptcy revisited n 4 appendix a3 insolvency service uk enterprise act 2002 attitude bankruptcy 2009 update n 4 appendix a3 see also part ii b iii 10 late alan bond christopher skase two notorious corporate bankrupt australia recent history example public discourse surrounding figure see eg paul barry going broke transworld 2000 see also tom prior christopher skase beyond mirage information australia 1994 lawrence van der plaat good true inside corrupt world christopher skase macmillan 1996 11 teresa sullivan elizabeth warren jay lawrence westbrook fragile middle class american debt yale university press 2000 34 12 bankruptcy abuse prevention consumer protection act 2005 pub l 109 8 256 119 stat 23 2005 brief overview relevant scholarship see paul ali lucinda brien ian ramsay short quid bankruptcy stigma contemporary australia 2015 unswlawjl 59 2015 38university new south wale law journal1575 1586 94 13 whereas chapter 7 theunited state bankruptcy codeprovides comprehensive debt discharge within month filing chapter 13 involves three five year payment plan debtor must devote disposable income repaying unsecured creditor dov cohen robert lawless le forgiven race chapter 13 bankruptcy katherine porter ed broke debt bankrupt middle class stanford university press 2012 175 175 11 usc 701 84 1301 30 14 sullivan warren westbrook le stigma n 1 234 5 n 63 quotingbankruptcy revision hearing bankruptcy reform financial servs issue subcomm banking 106th cong 11 1999 statement rep rick boucher del va 15 efrat shifting norm n 1 495 see also todd j zywicki institution incentive consumer bankruptcy reform 2005 62washington lee law review1071 16 sullivan warren westbrook le stigma n 1 233 17 efrat shifting norm n 1 494 18 ibid 510 19 ibid 500 20 ibid 504 21 ibid 514 22 efrat writes american traditional distaste debt partly attributable robust church influence ibid 493 see also david tucker decline thrift america cultural shift saving spending praeger 2nded 1991 13 18 cited efrat shifting norm n 1 493 n 65 23 sullivan warren westbrook le stigma n 1 235 elizabeth warren amelia warren tyagi two income trap middle class parent going broke basic book 2003 72 3 24 see eg sullivan warren westbrook le stigma n 1 248 9 sullivan warren westbrook fragile n 11 warren warren tyagi n 23 see especially 126 37 25 sullivan warren westbrook le stigma n 1 215 242 7 26 see eg deborah thorne leon anderson managing stigma personal bankruptcy 2006 39sociological focus77 83 sousa n 1 27 efrat shifting norm n 1 28 ibid485 29 date cbp consisted four discrete study carried 1981 1991 2001 2007 detail 1981 study see teresa sullivan elizabeth warren jay lawrence westbrook forgive debtor bankruptcy consumer credit america oxford university press 1989 detail 1991 study see sullivan warren westbrook fragile n 11 2001 study described warren warren tyagi n 23 discussion 2007 study seekatherine porter appendix methodology consumer bankruptcy project 2007 katherine porter ed broke debt bankrupt middle class stanford university press 2012 235 iteration cbp involved change methodology scope well research personnel see eg warren warren tyagi n 23 181 8 30 sullivan warren westbrook fragile n 11 32 31 see eg rafael efrat evolution bankruptcy stigma 2006 7theoretical inquiry law365 sousa n 1 sullivan warren westbrook le stigma n 1 thorne anderson n 26 32 thorne anderson n 26 33 ibid 83 strategy included concealment many admitting gone considerable length prevent family co worker learning bankruptcy 34 ibid 83 35 ibid 94 36 sousa n 1 463 469 37 efrat evolution n 31 389 391 38 efrat shifting norm n 1 494 39 ibid 491 40 nathalie martin common law bankruptcy system similarity difference 2003 11american bankruptcy institute law review367 367 41 nathalie martin role history culture developing bankruptcy insolvency system peril legal transplantation 2005 28boston college international comparative law review1 38 9 rafael efrat global trend personal bankruptcy 2002 76american bankruptcy law journal81 100 1 42 martin common law bankruptcy system n 40 368 see also efrat global trend n 41 106 cited martin history culture n 41 38 9 jacob ziegel comparative consumer insolvency regime canadian perspective hart 2003 113 martin history culture n 41 43 ziegel n 42 112 13 writing 2003 ziegel cited administration order thecounty court act 1984 uk c 28as example le bureaucratic form relief however 2012 iain ramsay observed order withered importance replaced consumeris ed individual voluntary arrangement iain ramsay tale two debtor responding shock indebtedness france england story thetrente piteuses 2012 75modern law review212 237 240 44 ramsay tale n 43 237 8 45 ibid 243 46 iain ramsay wannabe wag credit binge construction overindebtedness uk johanna niemi iain ramsay william c whitford ed consumer credit debt bankruptcy comparative international perspective hart 2009 75 76 cited ibid 243 47 ramsay tale n 43 243 see also ramsay overindebtedness n 46 48 ramsay tale n 43 247 49 insolvency act 1986 uk c 45 279 insolvency act 50 insolvency service uk insolvency second chance white paper department trade industry july 2001 1 http webarchive nationalarchives gov uk http www insolvency gov uk cwp cm5234 pdf 51 insolvency service uk bankruptcy fresh start consultation document march 2000 http webarchive nationalarchives gov uk 20140311023846 http www insolvencydirect bi gov uk insolvencyprofessionandlegislation con_doc_register con_doc_archive consultation freshstart foreword htm 52 ibid emphasis added 53 ibid 54 ibid 55 insolvency actsch 4a subject bros individual precluded holding certain position cannot serve member parliament company director among thing may obtain credit without disclosing existence bro seeinsolvency act 426a adrian walter personal insolvency law theenterprise act appraisal 2005 5journal corporate law studies65 87 debtor may also voluntarily subject bankruptcy restriction undertaking brus legal effect bros require debtor appear court insolvency service uk guidance bankruptcy restriction order undertaking 4 april 2017 http www gov uk government publication bankruptcy restriction order undertaking bankruptcy restriction order undertaking happens bro bru made 56 insolvency actsch 4a sub para 2 2 adrian walter point several ground identical based ground court could refuse discharge individual bankruptcy earlier uk bankruptcy law walter n 55 91 57 insolvency service uk bankruptcy debt relief restriction outcome summary result 2017 http www insolvencydirect bi gov uk iesdatabase viewbrobrusummary new asp 58 insolvency service uk final evaluation report n 4 19 59 first benchmark study conducted 2004 conjunction commencement theenterprise act see insolvency service uk attitude bankruptcy n 4 4 second conducted 2006 2007 see insolvency service uk attitude bankruptcy revisited n 4 third conducted 2009 see insolvency service uk enterprise act 2002 attitude bankruptcy 2009 update n 4 60 third group designed representative adult telephone owning household great britain insolvency service uk attitude bankruptcy n 4 6 case survey general public administered via telephone part omnibus survey conducted market research company see insolvency service uk attitude bankruptcy n 4 6 insolvency service uk attitude bankruptcy revisited n 4 6 insolvency service uk enterprise act 2002 attitude bankruptcy 2009 update n 4 6 2007 2009 survey administered 1000 member general community see insolvency service uk attitude bankruptcy revisited n 4 appendix b1 insolvency service uk enterprise act 2002 attitude bankruptcy 2009 update n 4 appendix b1 appendix 2004 report longer available online size sample 2004 survey unknown 61 see insolvency service uk attitude bankruptcy revisited n 4 appendix a3 insolvency service uk enterprise act 2002 attitude bankruptcy 2009 update n 4 appendix a3 appendix 2004 report longer available online survey question evaluation known data reported 2004 report indicates questionnaire employed evaluation similar employed 2007 2009 evaluation minor difference example 2004 member public asked respond statement bankruptcy infringe upon life statement included 2007 2009 questionnaire 62 insolvency service uk attitude bankruptcy revisited n 4 appendix a3 insolvency service uk enterprise act 2002 attitude bankruptcy 2009 update n 4 appendix a3 63 respondent agreed bankruptcy carry stigma read following script aspect bankruptcy process large amount stigma attached please tell using scale 1 5 extent agree disagree following part bankruptcy large amount stigma attached asked respond statement attend court complete paperwork form meet people authority official receiver bankruptcy order advertised newspaper 64 respondent survey asked whether ever bankrupt direct experience bankruptcy system capacity 65 example seems unlikely many respondent would strong opinion impact restriction imposed someone bankrupt able company director insolvency service uk attitude bankruptcy revisited n 4 appendix a3 insolvency service uk enterprise act 2002 attitude bankruptcy 2009 update n 4 appendix a3 research found public remains largely unaware change introduced theenterprise act 2002 separate evaluation change discharge provision found half debtor unaware automatic discharge period reduced three year one year time went bankrupt insolvency service uk discharge bankruptcy report 2006 7 10 http webarchive nationalarchives gov uk 20080610162130 http www insolvency gov uk insolvencyprofessionandlegislation policychange policychange htm 66 possible response expressed likert scale ranging strongly agree strongly disagree respondent also option respond know insolvency service uk attitude bankruptcy revisited n 4 appendix a3 insolvency service uk enterprise act 2002 attitude bankruptcy 2009 update n 4 appendix a3 67 insolvency service uk attitude bankruptcy n 4 7 68 insolvency service uk enterprise act 2002 attitude bankruptcy 2009 update n 4 8 three study indicate view uk public vary significantly according gender age occupation geographic location 9 12 15 69 ibid 7 70 author referring aggregate change attitude evinced bankrupt debtor businessesandthe general public general public reported steadily decreasing level stigmatisation 2004 2006 2006 2009 view bankrupt debtor businesspeople remain ed largely 2004 2006 ibid 7 71 ibid 7 see also katharina möser restriction personal insolvency 2013 journal business law679 690 1 john tribe discharge bankruptcy examination personal insolvency fresh start function english law part three 2013 26insolvency intelligence1 3 72 insolvency service uk enterprise act 2002 attitude bankruptcy 2009 update n 4 7 73 treasury cth n 7 5 74 ibid 3 75 ibid 76 ibid 5 77 ibid 3 78 ibid 79 jennifer dickfos catherine brown reducing bankruptcy 12 month ignores reality insolvency conversation online 15 june 2015 http theconversation com reducing bankruptcy 12 month ignores reality insolvency 60382 discussion paper also failed address measure suggested mean reducing stigma restricting access name detail individual bankrupt national personal insolvency index see nicola howell rosalind mason reinforcing stigma delivering fresh start bankruptcy future engagement workforce 2015 unswlawjl 58 2015 38university new south wale law journal1529 1572 3 80 dickfos brown n 79 similar point raised relation uk reform see eg lisa linklater theenterprise act new economic dawn disaster 2004 25company lawyer33 81 see eg insolvency trustee service australia profile debtor 2011 report 2012 http www afsa gov au site g file net1601 f profile debtor 2011 pdf insolvency trustee service australia itsa changed name afsa august 2013 82 martin ryan last resort study consumer bankrupt avebury 1995 83 seventy four per cent interviewed said personally experienced stigmatisation sense made feel different looked time majority 54 per cent said still felt stigmatised said revealed bankrupt status relative friend le 20 per cent revealing employer co worker neighbour ibid 181 187 84 obituary bond paul barry writes eye many australian bond epitomises wrong 1980s decade selfishness greed paul barry alan bond 1938 2015 australian online 5 june 2015 http www theaustralian com au news special feature alan bond risk taking salesman made life fun news story 592e0fda729caf5fba87ddcdd18c6b7b see also barry going broke n 10 prior n 10 van der plaat n 10 85 see eg paul barry rich lawyer dodging income tax sydney morning herald online 26 february 2001 http www smh com au national rich lawyer dodging income tax 20130526 2n50f html louise hall struck barrister face bankruptcy sydney morning herald online 10 august 2011 http www smh com au nsw struckoff barrister face bankruptcy 20110809 1ikwc html 86 barry alan bond n 84 87 rarely journalist profile middle class bankruptcy aspect case unusual example recent case husband wife declared bankrupt failing pay 20 000 credit card debt despite 300 000 equity family home total liability including legal fee interest eventually amounted 291 124 liam mannix rich rag family made homeless credit card debt sydney morning herald online 1 march 2016 http www smh com au national rich rag family made homeless credit card debt 20160226 gn4nc7 html another recently reported case involved woman made bankrupt failing pay son private school fee rania spooner henrietta cook mother loses bankruptcy battle private school fee age online 31 july 2015 http www theage com au victoria mother loses bankruptcy battle private school fee 20150730 gio17d html 88 ian ramsay cameron sim personal insolvency australia increasingly middle class phenomenon 2010 38federal law review283 89 category clerical administrative based upon australian new zealand standard classification occupation system categorising occupation jointly developed australian bureau statistic statistic new zealand 90 australian financial security authority commentary debtor 2016 http www afsa gov au statistic commentary debtor 91 2013 14 clerical administrative worker made 1198 19 354 total bankruptcy 2014 15 made 1057 17 575 bankruptcy 2015 16 made 1081 17 755 bankruptcy three year constituted six per cent total bankruptcy author wish thank statistic team afsa providing figure 2014 15 2015 16 year time writing figure publicly available see also ibid 92 2011 afsa itsa published statistic calendar year rather financial year 93 afsa note 2009 10 financial year average taxable income individual 48 027 insolvency trustee service australia n 81 18 according afsa 2011 26 per cent bankrupt earned 30 000 49 999 12 month prior bankruptcy 13 per cent earned 50 000 69 999 94 fair work australia order annual wage review 2010 11 pr062011 20 june 2011 order set minimum wage 589 30 per week 1 july 2011 para 4 2 95 see australian financial security authority cause non business related 2016 http www afsa gov au statistic cause non business related 96 ramsay sim n 88 97 ibid 284 98 ibid 309 99 paul ali lucinda brien ian ramsay bankruptcy social security long term poverty result survey financial counsellor consumer solicitor 2016 44australian business law review144 150 100 ibid 101 see insolvency service uk attitude bankruptcy revisited n 4 appendix a3 insolvency service uk enterprise act 2002 attitude bankruptcy 2009 update n 4 appendix a3 102 insolvency service uk enterprise act 2002 attitude bankruptcy 2009 update n 4 4 103 stating highest level qualification respondent given following option year 10 year 12 tafe technical education college diploma bachelor degree post graduate degree 104 respondent asked indicate whether thought following statement true false go bankrupt get keep furniture ordinary household good b bankrupt allowed borrow money c bankrupt ask permission travel overseas bankruptcy permanent effect credit worthiness making harder take loan respondent could choose following response true probably true unsure probably false false 105 emphasis original respondent asked answer question using likert scale possible response strongly agree agree unsure disagree strongly disagree 106 emphasis original respondent asked answer question using likert scale possible response strongly agree agree unsure disagree strongly disagree 107 company pureprofile pay panellist small cash payment survey completed payment calculated according amount time taken complete survey 108 quota based upon australian census data 109 two week formal launch survey 1992 people completed survey survey quota relaxed order speed collection outstanding eight survey 23 may 2016 research company relaxed quota whereupon quickly received 22 response 110 main statistical procedure utilised chi square test independence compared percentage agreement total strongly agree agree response case sum true probably true response various demographic group example male female respondent 111 thirty eight per cent men nominated lack self control primary cause unmanageable debt compared 27 per cent woman difference statistically significant 0 01 level henceforth one asterisk indicates significance 0 05 level two asterisk indicate significance 0 01 level twenty four per cent men attributed bankruptcy extravagance greed compared 19 per cent woman contrast 20 per cent woman attributed primarily rising cost living compared 13 per cent men twenty three per cent woman attributed advertising easy access credit card compared 16 per cent men eleven per cent woman attributed failing save emergency compared nine per cent men however difference statistically significant 112 forty one per cent men agreed people go bankrupt extravagant greedy compared 31 per cent woman sixty eight per cent men agreed bad managing money compared 63 per cent woman eighteen per cent men agreed lazy compared 13 per cent woman nineteen per cent men agreed dishonest untrustworthy compared 14 per cent woman woman somewhat likely agree people go bankrupt deserve sympathy people go bankrupt unlucky difference statistically significant 113 forty per cent men agreed proposition compared 36 per cent woman statistically significant difference opinion men woman regarding attitude australian generally 114 purpose analysis aged 56 older aged 55 younger 115 selected important cause unmanageable debt 20 per cent younger respondent eight per cent older respondent 116 selected important cause unmanageable debt 19 per cent younger respondent 28 per cent older respondent 117 selected important cause unmanageable debt 17 per cent younger respondent 25 per cent older respondent 118 twenty seven per cent younger respondent agreed people go bankrupt unlucky 18 per cent older respondent agreed 119 seventy two per cent older respondent agreed people go bankrupt bad managing money 62 per cent younger respondent agreed 120 forty two per cent older respondent agreed people go bankrupt extravagant greedy 33 per cent younger respondent agreed 121 example degree holder likely agree people go bankrupt dishonest untrustworthy nineteen per cent degree holder agreed statement 14 per cent degree agreed 122 purpose discussion advantaged refers respondent ranked top 25 percentile australian bureau statistic socio economic index area seifa index education occupation respondent ranked bottom 25 percentile index deemed disadvantaged see australian bureau statistic socio economic index area 23 september 2013 http www ab gov au websitedbs censushome nsf home seifa 123 forty nine per cent respondent bankrupt agreed statement 30 per cent bankrupt agreed 124 forty seven per cent respondent bankrupt agreed statement 23 per cent bankrupt agreed 125 ten per cent respondent bankrupt agreed statement 22 per cent bankrupt agreed 126 fifty one per cent respondent bankrupt agreed statement 66 per cent bankrupt agreed 127 twenty six per cent respondent bankrupt agreed statement 37 per cent bankrupt agreed 128 twelve per cent respondent bankrupt agreed statement 16 per cent bankrupt agreed statistically significant 129 twenty nine per cent respondent bankrupt agreed statement 21 per cent bankrupt agreed 130 original statement cant see reason bankruptcy one stupid subsequent quotation survey result minor typographical error silently corrected 131 see part ii c tally includes variant spelling scace scaces scase skace chase one respondent referred colin bond response question 12 included three reference bond two reference skase 132 similarly others wrote sad state affair could happen anyone think people go bankrupt variety reason bad luck bad planning greedy high expectation could happen anyone think happen anyone kindest person taken advantage greedy person always want happen almost anyone whether someone business someone employee feel deserve sympathy kindness believe could happen anyone sometimes people get unlucky kind people luck 133 similar comment included r epossession property greedy people careless bank check credit worthiness sanctioning credit bank must bear responsibility lending method bank hand much cash easily 134 medicare australia national public health care scheme 135 44 respondent used word depressed depression depressing response question 11 tally include two reference great depression 136 forty one respondent used word shame shameful ashamed response question 11 22 used term embarrassment 137 respect result broadly consistent finding uk see insolvency service uk enterprise act 2002 attitude bankruptcy 2009 update n 4 12 15 138 phrase phoenix activity refers practice allowing one company fail subsequently resuming business auspex new company australian law practice illegal undertaken intention evading one obligation unsecured creditor employee see helen anderson et al profiling phoenix activity new taxonomy 2015 33company security law journal133 133 139 sullivan warren westbrook fragile n 11 34 140 similarly equivocal comment included following sometimes sad sometimes may deserve managed money poorly greedy believe people get point option declare bankruptcy probably least somewhat justified however wonder people get point lived risk il 141 44 respondent used word depressed depression depressing response question 11 tally include two reference great depression 142 treasury cth n 7 3 143 ibid 144 several comment vein eg people plan bankruptcy carefully money set aside company go broke 3 5 year start another business rack huge amount debt make money go bankrupt legal consequence people go bankrupt owing people business e money 145 financial right legal centre submission financial system division treasury bankruptcy insolvency law proposal paper may 2016 15 http financialrights org au wp content uploads 2016 05 160527_improvingbankruptcy_sub_final pdf 146 similar comment included following government need assist people wish government help great people get covered government centrelink feel though family receive able get sort help 147 australian financial security authority commentary 2016 http www afsa gov au statistic commentary 148 walter n 55 90 149 möser n 71 699 150 insolvency service uk final evaluation report n 4 95 151 ibid98 152 limited number bros brus issued recent year suggests court adopting cautious approach fact becoming increasingly reluctant implement measure 2015 16 financial year 51 bros 383 brus issued way comparison 188 bros 1757 brus issued 2009 10 financial year since 2009 number steadily declined insolvency service uk insolvency service enforcement outcome monthly data table february 2017 10 march 2017 http www gov uk government statistic insolvency service enforcement outcome monthly data table february 2017 153 efrat evolution n 31 393 154 sullivan warren westbrook le stigma n 1 234 155 efrat evolution n 31 389 156 sullivan warren westbrook le stigma n 1 244 157 noted 16 per cent respondent agreed statement 158 noted 31 per cent respondent agreed people go bankrupt deserve sympathy 24 per cent agreed unlucky 159 erving goffman stigma note management spoiled identity penguin 1968 15 160 see eg thorne anderson n 26 83 161 sousa refers generalized feeling shame stigma sousa n 1 461 elsewhere writes notion shame stigma continue exist among people go bankrupt 464 162 thomas j scheff shame self society 2003 26symbolic interaction239 241 163 ibid 239 164 ibid 240 165 gershen kaufman psychology shame theory treatment shame based syndrome springer 1989 3 4 cited scheff n 162 240 166 goffmann n 159 15 167 scheff n 162 254 168 ibid 256 169 ibid 170 ibid 255

Kellerberrin Care of the Aged Committee Inc t_a Dryandra Frail Aged Hostel v Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, WA Branch [1997] WAIRComm 178 (19 August 1997).txt

kellerberrin care aged committee inc dryandra frail aged hostel v australian liquor hospitality miscellaneous worker union miscellaneous worker division wa branch 1997 waircomm 178 19 august 1997 decision 919 ofwestern australian industrial relation commissionindustrial relation act 1979kellerberrin care aged committee inc dryandra frail aged hostel appellant australian liquor hospitality miscellaneous worker union miscellaneous worker division wa branch respondent 919 1997 full bench 19 august 1997his honour president p j sharkeycommissioner cawleycommissioner r n georgereasons decisionthe president appeal decision industrial magistrate sitting industrial magistrate court perth made complaint 159 1996 23 april 1997 industrial magistrate found 20 alleged breach aged disabled person hostel award 1987 6 1987 hereinafter referred award referred complaint proven made order ground appealthe appellant appeal decision following ground 1 learned magistrate erred finding employee lynette summer employed assistant supervisor within meaning aged disabled person hostel award 1987 a6 1987 2 found lynette summer employed domestic particular cleaner much cleaning required give priority care resident learned magistrate erred deducing employed assistant supervisor 3 learned magistrate erred interpreting award failing ascertain duty assistant supervisor time award made ii failing find essential element role assistant supervisor assisting overall charge day day running hostel assisting overseeing daily activity resident 4 learned magistrate erred applying major substantial employment test referred indimitrios doropoulos or swan dry cleaner v transport worker union australia industrial union worker western australian branch 69 waig 1290 5 appellant seek order full bench follows appeal upheld ii decision learned magistrate varied dismiss complaint b revoke order cost appellant c issue order reimbursement cost respondent favour chamber commerce industry western australia 63 00 iii alternatively ii c matter remitted learned magistrate determination cost ground 5 ii c iii withdrawn appeal appellant backgroundthe respondent complainant first instance made complaint industrial magistrate court perth alleging 20 breach clause 18 1 award breach alleged failure pay employee one lynette marion summer accordance clause 18 1 v award clause 6 award contains definition supervisor follows 1 supervisor shall mean employee overall charge day day running hostel whose duty include overseeing daily activity resident clause 18 1 award prescribes seven occupation follows base asna minimumrate payment weeklyrate qualified cook 460 90 8 00 468 90 ii cook working alone 401 00 8 00 409 00 iii cook 395 90 8 00 403 90 iv supervisor 426 40 8 00 434 40 v assistant supervisor 403 60 8 00 411 60 vi domestic 378 30 8 00 386 30 vii driver 402 90 8 00 410 90 clause 18 2 classification domestic defined follows 2 classification domestic shall include following cleaner domestic gardener handyperson kitchen employee laundry employee pantry employee machinist storeperson like classification definition assistant supervisor award key issue worship whether m summer material time assistant supervisor within meaning award defendant case learned industrial magistrate upon appeal m summer covered award set fact agreed first instance see page 131 appeal book hereinafter referred ab m summer employee appellant beginning pay period ending 2 november 1994 19 october 1995 indeed evidence reveals 1989 period designated appellant general assistant paid amount le rate prescribed award assistant supervisor appellant material time operator hostel providing residential accommodation catering facility hostel personal care service aged person received funding hostel aged disabled person home act 1954 cth amended 2 act hostel see page 146 ab defined follows hostel mean premise fitted furnished equipped purpose providing relevant care service person reason age disability need service ii accommodation person reside firstmentioned person b person accommodated exclusively purpose receiving service accommodation case may include c hospital nursing home within meaning thenational health act 1953or thenursing home assistance act 1974 e institution carried exclusively primarily treatment mentally ill mentally defective person institution conducted receipt grant maintenance state f premise maintenance expenditure provided arrangement entered thetuberculosis act 1948 hostel care service defined 2 act follows hostel care service mean accommodation service kind relation approval subsection 10a 1 force personal care service defined 2 act follows personal care service mean daily personal care service kind relation approval subsection 10a 2 force appropriate personal care hostel care service prescribed federal minister 29 april 1992 see page 148 150 ab noted hostel care service include assistance cleaning resident room provision meal assistance necessary room service personal laundry provision time least one responsible person approved organisation continuously call reasonable proximity render emergency assistance eligible person requires assistance personal assistance required provided includes personal assistance including individual attention individual supervision physical assistance bathing showering personal hygiene activity b dressing undressing grooming including fitting artificial limb personal mobility aid sensory communication aid c eating drinking includes assisting movement toileting sic management continence incontinence also assistance communication generally seem two dozen resident required cared relevant time suffered dementia alzheimer disease 40 50 percent according evidence general assistant m summer employed since 1989 definition person aged frail disabled duty statement general assistant see page 152 156 ab demonstrate care required provided includes supervising prompting showering attendance personal hygiene resident well assisting prompting washing checking physical condition putting washing putting clothes away duty applied least nine resident according exhibit part written duty one general assistant undisputed evidence staff hostel material time consisted supervisor m sally may starling night supervisor relief supervisor two general assistant m summer m janice fay anderson latter employed since march 1994 gardener cook cook assistant laundry person time hearing general assistant worked two type shift straight shift 7 00 2 00 pm split shift 7 00 12 00 noon recommencing 4 30 pm ending 7 00 pm see page 155 157 ab thus one worked one shift time worked split shift however together 7 00 12 00 noon time work done two separate shift coincided course evidenceit necessary consider evidence three witness briefly evidence lynette marion summersms summer gave evidence duty check night supervisor 7 00 prompt assist resident shower laying taking away clothes putting toiletry coming back regular interval check person showering might problem memory loss check fact gone shower person evidence required greater care others including helping bed undressing physically getting shower one resident referred colostomy bag required 40 minute assistance helping person shower regulating water assisting washing back drying cleaning denture spectacle putting hearing aid referred number thing done also resident unable without specifying thing also question choosing appropriate clothes combing shampooing hair stripping bed wet applying cream talcum powder part body required done also condition rash monitored general assistant reported upon supervisor abrasion bruise also observed reported upon showering process took one hour duty statement referred appears appeal book prescribes one hour five minute although m anderson said took half hour resident requiring prompting sent breakfast person required assistance escorted breakfast 40 50 percent would require assistance showering said performed duty accordance weekly roster namely stripping changing linen monday dusting cleaning room tuesday carrying various detergent chemical carried filling appropriate receptacle cutting fingernail toenail wednesday vacuuming thursday friday general clean gave evidence whilst general duty alert mood swing behavioural problem assisted resident emotional problem pacifying distracting became upset task getting resident tea 10 00 see page 32 ab whenever general assistant room someone said generally required assist getting thing hanging thing chatting well 12 00 noon resident prompted taken lunch general assistant split shift go 12 00 noon straight shift remains person straight shift delivers washing hang put away room resident dining room vacuumed general assistant also answer resident buzzer room general assistant also help person fall get foot m summer instruction local physiotherapist lift person fallen sometimes supervisor take someone surgery town general assistant might person deal resident straight shift lunch laundry kitchen dining room required cleaned split shift 4 30 pm table set tea general assistant resident came 5 30 pm meal given meal cut otherwise looked eating general assistant stacked dishwasher tidied kitchen 6 45 pm resident reminded come cup tea dining room made 7 00 pm shift finished m summer said whilst cleaning still keep eye happening hostel also said instinctive thing lot thinking patient especially dementia said always resident well first priority see page 37 ab referred supervisor duty page 37 38 ab including administrative responsibility handing medication attending record paperwork etc clear perform aspect supervisor duty resident general assistant required record bowel movement 40 50 percent resident varying degree alzheimer disease dementia poor mobility others behavioural problem according m summer evidence page 39 ab m summer gave description role relation supervisor reproduce hereunder well put know think job sort eye ear supervisor spent sic lot time hand contact resident think relies u quite lot alert anything whether mood swing whether deterioration mental physical state go advice whether worried anything resident sort wait hear u feel something know hesitate tell act whether get onto family doctor usually conference going different one follow thing alerted two year hearing m summer fairly intensive one day course dementia aged care completed another course hearing application 2 april 1997 cross examination gave following evidence summarised twice week supervisor half hour general assistant always together 7 00 12 00 noon always supervisor charge 30 percent resident required hair brushed collar pulled period subject complaint reiterated resident personal care priority doubt m summer said evidence responsible supervisor namely m starling took instruction supervisor evidence assisted overall charge day day running hostel order supervisor see page 51 ab relation care resident number duty supervisor see page 52 54 ab many referred m starling evidence m summer specifically denied main function cleaning repeated first priority resident however m summer said evidence could dispute sometime started work appellant essential reason cleaning peripheral work personal care morning fair say course period sometime started work m summer said buzzer would go three four time week although one lady used set buzzer three four time day said requirement general assistant attend buzzer even supervisor also evidence corroborated m anderson one four occasion resident would fallen buzzer rang fifty percent resident would require personal care showering m summer said also said would physically impossible one person attend showering one hour evidence janice fay andersonms anderson general assistant designated event commenced employment appellant march 1994 evidence spent half hour attending showering resident duty statement prescribed longer period showering attention already said also said swapped side duty ie side building say many resident could proceed shower said rest day spent cleaning making bed ie showering done m summer said performed task except material time m anderson cut resident toenail attend chemical see page 77 ab m anderson said buzzer sometimes rang hardly sometimes continuously would answer see needed even supervisor responsibility answer buzzer agreed bowel movement two three resident recorded agreed one resident required assistance put sock agreed others needed assistance clothing dirty clothing put room general assistant suggested resident wear inappropriate soiled clothing said hearing aid spectacle would tell supervisor resident lost something agitated confused would example get glass room missing would keep eye resident dementia knew gone walk something would talk resident exhibiting confusion whilst room however problem would see supervisor would ass seriousness situation resident however became aware bruise whilst cleaning room would go get supervisor agreed re concern implication would fit duty around need sought qualified examination leading question answer somewhat equivocal see page 82 ab said would attend resident need showering seldom evidence sally may starlingms starling supervisor appellant premise since 1994 referred duty supervisor follows general running happening dryandra b supervisor subsidy general assessment resident c supervision staff handing medication resident seeing doctor appointment like matter e dealing application prospective resident f wherever possible arranging activity resident g arranging specialist service h organising roster staff directing general assistant m starling described main function general assistant assisting showering morning see page 86 ab went say answer supervisor able assist calling resident breakfast general assistant make bed clean flat help washing said everyone answer buzzer said also said difference job general assistant responsibility care resident health well information need resident came supervisor general assistant m starling also said gardener cook told lot thing especially dementia resident although conceded would seem correctly cook gardener would involved something like dressing evidence cook gardener primarily responsible assisting care resident either m starling agreed part duty general assistant report mood swing resident matter general health area including whether noticed cut bruise resident agreed general assistant apply cream part resident body required agreed core done hostel ensuring personal care component hostel provided accordance relevant australian government standard m starling concede requiring personal care absent hostel responsibility would fall general assistant one responsible person course agreed present time m starling evidence staff attend buzzer ring agreed general assistant became aware resident needed assistance giving assistance would first priority however said would expect volunteer anyone walking street certain meant expected volunteer person walking street dash hostel assist resident uninvited added examination would role general assistant anything happened west north corridor hostel press buzzer needed help reason decision first instancethis appeal basis worship erred finding m summer assistant supervisor worship found assistant supervisor assistant person provides help aid case worship went find regard definition supervisor referred 1 necessary person assist supervisor duty required carried supervisor said person assistant supervisor 2 assistant supervisor necessarily person simply required carry particular task direction supervisor 3 irregular infrequent occasional performance supervisor task person supervisor make person assistant supervisor 4 assistant supervisor assist supervisor help aid supervisor carry duty worship made number finding fact expressly preferring evidence sole witness respondent complainant first instance m summer witness appellant defendant first instance m anderson also person designated general assistant worship refer evidence witness respondent m starling worship made finding contrary evidence m starling accepted m summer evidence full bench cannot act evidence reverse finding unless satisfied advantage enjoyed worship reason seen heard witness could sufficient explain justify worship conclusion seeabalos v australian postal commission 1990 hca 47 1990 171 clr 167 hc finding fact trial judge based credibility witness set aside appellate court think probability case even strongly finding fact trial judge finding depends substantial degree credibility witness finding must stand unless shown judge failed use palpably misused advantage acted evidence inconsistent fact incontrovertibly established evidence glaringly improbable seedevries another v australian national railway commission another 1992 1993 177 clr 472 hc m starling supervisor m anderson another person categorised general assistant worship applied major substantial employment test applied full bench indoropoulos others swan dry cleaner v twu69 waig 1290at 1292 1293 fb full bench said warevo donnell griffin television service pty ltd 1971 ar nsw 18at 19 sheldon j held applying principle major substantial employment merely matter quantifying time spent various element work performed complainant quality different type work done also relevant consideration advert also consideration sort problem harrisonvfmwu63 waig 1399 state major substantial employment test applied considered digglevbrine op cit woolf j held person cleaned three hour eight hour day cleaner said however page 79 come conclusion one cannot stamp whole employment one get comprehensive picture whole employment say whether fact classed cleaner award cleaner within meaning award litisvpantelis op cit jackson j virtue j agreed said case necessary consider provision award next work actually performed determine whether brought worker within named category worker within award considered mr pantelis jackson j looked called essential primary employment jackson j virtue j considered agreement worker signed well case case consider agreement mr gardner entered advertisement exhibit f evidence recent authoritative decision purpose full bench fcuvcary67 waig 585 industrial appeal court called upon decide whether worker named complaint clerk purpose appropriate award burt j president said page 586 course one regard substantial nature employment term purpose achieved question think much controlled difference always accepted philosopher serf purpose practical men end mean substance worker job write job done writing done clerk substance writing done worker step taken something extending beyond substance work identifies question one degree indicates answer may much product value judgment thus incorporated consideration major substantial employment authority question substantial nature employment substance purpose achieved one look contract evidence obtain comprehensive picture whole employment enable one apply burt j test worship found m summer performed following duty 1 woke resident morning 2 assisted resident showering particular assisted resident clean part body could manage clean eg back foot 3 ensured resident attended dining room area breakfast lunch tea case may depending particular shift 4 continually monitored whether change physical well resident change may physical bruising grazing change may also emotional mood swing change brought attention supervisor 5 ensured resident properly clothed regard climatic condition day 6 every room various resident equipped buzzer resident pushed button caused buzzer activate needed attention accepted supervisor m summer general assistant expected respond activation buzzer resident supervisor also responded well good attendance general assistant would thereafter required however supervisor respond general assistant depending upon demand resident general assistant may needed refer matter supervisor 7 assisted personal hygiene resident eg cleaned teeth cut nail combed hair cleaned resident wet supervisor present 8 assisted recording bowel movement resident 9 communicated resident time time settle soothe given resident suffer alzheimer disease dementia varying degree 10 physically lifted resident 11 cut food resident needed help enable able least comfortably able eat evening meal 12 ensured room clean tidy including making bed cleaning mirror sink emptying bin 13 attended cleaning duty generally room hostel including bedroom involving dusting vacuuming mopping 14 generally assisted cleaning kitchen attended cleaning dish cutlery 15 completed sorting washing removal washing line delivery laundry resident room 16 ensured various chemical available eg laundry cleaner toilet cleaner kitchen detergent addition worship went find 1 m summer employed domestic particular cleaner minor peripheral task connection personal care resident 2 expectation defendant m summer employment went way beyond mere cleaning minor peripheral assistance giving personal care 3 defendant caused m summer attend course alzheimer disease dementia first aid lifting people 4 naming position general assistant rather cleaner domestic reflected fact much cleaning 5 crucial significance case respect various duty previously mentioned cleaning attended regular basis others may potentially arisen time arise time time 6 looking change resident physical presentation mood going required time contemporaneous cleaning 7 context assessing comprehensive picture whole employment m summer required give priority care resident important regard burt cj test infcu v w cary r w cary estates57 waig 585 iac worship found m summer employed assistant supervisor notwithstanding defendant chose describe position something else notwithstanding assist supervisor many duty supervisor conclusionsthere several major head argument upon appeal mr robertson behalf appellant submitted inter alia learned industrial magistrate discretion miscarried part decision made would observe decision complaint 83 theindustrial relation act 1979 amended whether complaint breach award proven discretionary decision decision depends whether complainant establishes matter fact law breach committed complaint alleges according proper standard proof secondly question evidence accepted canvassed submission learned industrial magistrate misused advantage seeing witness however submission m summer m anderson could know duty performed performed different part hostel building however one building question duty m summer performed mr robertson submitted also industrial magistrate erred accepting m summer duty described accepted evidence however preference m anderson subject error misusing advantage discussed devries another v australian national railway commission another op cit hc worship entitled accept version duty indeed evidence evidence m anderson m starling many respect finding fact made worship based credibility witness m summer made circumstance basis would lead conclude probability case finding made indeed demonstrate indication worship failed use palpably misused advantage acted evidence inconsistent fact incontrovertibly established evidence glaringly improbable fact matter evidence appellant premise hostel aged frail person cared staff supervisor general assistant evidence said open find resident priority evidence clear general assistant engaged care aged frail people suffering alzheimer disease dementia frail forgetful suffered emotional difficulty physically immobile partly immobile care included cleaning room part hostel attendant patient buzzer rang way observation way everyday help well cleaning getting food assistance fulfilled requirement provide care term prescription relevant commonwealth statute open find evidence general assistant subject direction supervisor overall responsibility evidence assistance given showering matter hygiene observation report attendance matter crisis fall m starling evidence left hostel general assistant took responsibility person requiring personal care narrow sense seemed something grudging concession m starling accorded m summer evidence m summer assertion eye ear supervisor borne m starling evidence general assistant m anderson also open worship find evidence m summer went two course gave instruction relation alzheimer disease effect dementia effect evidence denied evidence appellant view role general assistant something cleaner evidence assessing resident information provided general assistant used evidence came m starling however nothing transcript evidence could conclude matter difference evidence m summer one hand m anderson m starling hand worship misused advantage observing witness preferred evidence m summer witness m starling evidence different m summer evidence least different give rise error even principle abalos v australian postal commission op cit hc referred worship obvious acceptance m summer evidence error mr robertson went submit worship erred finding nature m summer employment main issue proceeding could best characterised time spent cleaning duty course open find evidence term time great deal spent cleaning time also spent putting clothes away attending personal care hygiene serving meal split shift acting eye ear supervisor duty cease cleaning occurring duty referred course open find throughout general assistant required observe attend assist resident alert report matter supervisor well personally care resident way already described could fend better others course essentially business appellant law matter fact provide hostel personal care aged disabled person prescribed could able provided supervisor alone evidence could said provided administrator cook assistant cook gardener laundry person volunteer street test worship apply ascertaining nature m summer employment referred doropoulos others swan dry cleaner v twu op cit fb dictum burt cj quoted reason judgment fcu v w cary r w cary estate op cit iac page 586 doropoulos others swan dry cleaner v twu op cit fb full bench referred dictum sheldon j inware v donnell griffin television service pty ltd1971 ar nsw 18at 19 set dictum full therefore authority assessing major substantial employment m summer merely matter quantifying time spent various element work performed complainant quality different type work done also relevant consideration one applies dictum one one applies burt cj said fcu v w cary r w cary estate op cit iac worship required mr robertson submission circumstance matter valid m summer cleaner cleaning washing showering supervisor eye ear personal care frail physically weak handicapped aged person person suffering dementia alzheimer disease work m summer work done treat resident care welfare priority open find substance work carer direction supervisor assist supervisor responsibility care prescribed aged disabled person home act 1954 cth amended effect evidence particularly m summer substance work clean care cleaning burt cj word merely open find step taken m summer something extending beyond cleaning follows worship entitled find m summer duty found outlined finding see paragraph 1 16 page 24 26 supra question whether m summer domestic defined award submitted fitted category domestic cleaner submission evidence might form domestic specifically referred definition respect could submission reason expressed worship entitled find m summer substantial employment cleaner peripheral task performed connection personal care resident also entitled find m summer evidence indeed evidence expectation appellant went way beyond cleaning minor peripheral assistance reason already expressed reason clear cleaner domestic worship entitled find evidence numbered finding page 24 27 hereof matter law question therefore whether m summer assistant supervisor already referred definition supervisor award m starling supervisor overall charge day day running hostel dispute duty palpably included evidence overseeing daily activity resident well work general assistant called assist supervisor duty including day day running hostel raison etre care resident eye ear amongst resident together duty performed m summer assisted supervisor oversee daily activity resident worship noted assistant supervisor assist supervisor carry duty think view validly disputed course assistant supervisor would differ assistant supervisor opinion would assist supervisor office supervisor discharge duty supervisor example secretary director would assist director would assistant director plainly assistant supervisor assist supervisor every one duty worship found assistant supervisor person simply required carry particular task direction supervisor case m summer course m summer work supervisor example assisting showering picking fallen resident answering buzzer observing resident duty involved direct participation running hostel care point view overseeing daily activity resident assistant supervisor reason expressed open worship find reason m summer assistant supervisor err finding considered submission evidence material full bench worship err submitted appeal made would dismiss commissioner cawley read president reason decision draft form agree conclusion appeal dismissed nothing add commissioner george benefit reading draft form reason decision honour president agree order proposed reason set therein nothing add president reason appeal dismissed order accordinglyappearances mr p robertson behalf appellant mr kelly behalf respondent

In the matter of Bankstown City Radio Co-Operative Limited (in liquidation) [2016] NSWSC 1884 (21 December 2016).txt

matter bankstown city radio co operative limited liquidation 2016 nswsc 1884 21 december 2016 last updated 19 april 2018supreme courtnew south walescase name matter bankstown city radio co operative limited liquidation medium neutral citation 2016 nswsc 1884hearing date 28 november 2016 written submission 2 december 2016 decision date 21 december 2016jurisdiction equity corporation listbefore black jdecision court grant leave james alexander shaw distribute surplus respect liquidation bankstown city radio co operative limited bankstown auburn community radio incorporated court order plaintiff cost application paid asset bankstown city radio co operative limited catchword corporation winding winding co operative co operative national law nsw plaintiff sought special leave distribute surplus liquidation co operative another entity whether special leave ought granted legislation cited association incorporation act 2009 nsw 65 co operative adoption national law act 2012 nsw sch 1 cll 2 4 co operative act 1992 nsw s 5 109a 328 pt 12 co operative national law nsw 24 56 64 65 442 443 444 448 455 472 sch 1 cll 1 3 co operative national regulation nsw sch 7 r 70 corporation ancillary provision act 2001 nsw pt 3 corporation act 2001 cth s 488 490 pt 5 4b income tax assessment act 1936 cth 23cases cited cgu worker compensation nsw ltd v ascom service automation australia pty ltd 2005 nswsc 747 millard son pty ltd 1997 24 acsr 71 hih service pty ltd liq 2012 nswsc 1188category principal judgmentparties james alexander shaw capacity liquidator bankstown city radio co operative limited applicant bankstown auburn community radio inc amicus curia representation counsel b douglas baker applicant b johnston bankstown auburn community radio inc solicitor laycock burke castaldi lawyer applicant fidelity legal bankstown auburn community radio inc file number 2016 311029judgmentby originating process filed 18 october 2016 plaintiff bankstown city radio co operative ltd co operative seek special leave 488 2 thecorporations act 2001 cth ands 448of theco operative national law nsw national law distribute surplus liquidation co operative bankstown auburn community radio incorporated bacr application supported affidavit liquidator mr shaw dated 17 october 2016 solicitor m mcgill dated 22 november 2016 apparently straightforward application requires review complex statutory structure provided helpful written submission mr douglas baker appears co operative application drawn heavily submission appears winding co operativeby way background co operative registered theco operative act1992

David Cheney Pty Ltd & City of Unley No ERD-98-933 Judgment No OE521 [1998] SAERDC 521 (13 November 1998).txt

david cheney pty ltd city unley erd 98 933 judgment oe521 1998 saerdc 521 13 november 1998 last updated 15 june 1999courtenvironment resource development courtdecision commissioner hodgsonhearing17 09 98 18 09 98 12 11 98 catchwordslocal government town planningdevelopment act 1993 development appeal application construct two storey dwelling existing allotment residential b400 zone refused council appeal planning merit considered impact existing character locality impact adjoining dwelling impact unreasonable proposal generally consistent relevant provision development plan appeal upheld provisional development plan consent granted subject condition material considereddevelopment act 1993 referred mcdonald australia ltd v city payneham others pat 151 1992 applied tashounidis v shire flinders others 1988 33 apa 427 considered representationappellant david cheney pty ltd counsel mr j mcelhinney solicitor ward partnersrespondent city unley counsel m blencowe solicitor minter ellisonerd 98 933judgment oe52113 november 1998david cheney pty ltdvcity unley 1998 saerdc 933 1998 oe521the court delivered following decision appeal concern proposal david cheney pty ltd construct two storey detached dwelling land 62 commercial road hyde park land comprised described certificate title register book volume 5522 folio 357 land rectangular shape width frontage commercial road 16 75m depth 45 72m area 766 45m yacute land single storey detached dwelling would demolished make way new dwelling appellant company applied city unley council provisional development plan consent pursuant provision thedevelopment act 1993 application dated 19 june 1998 decision notification form dated 28 july 1998 council advised refused proposal reason refusal follows proposal contrary development plan unley city objective 19 principle development control 11 19 bulk height two storey dwelling proposed considered character dwelling locality result unreasonable impact streetscape adjoining property building eastern western common boundary result unreasonable impact adjoining property streetscape notice appeal dated 28 july 1998 appellant company appealed court decision council conference conducted pursuant tosection 16of theenvironment resource development court act 1993 result compromise settlement accordingly matter proceeded hearing time council represented m blencowe counsel appellant mr j mcelhinney counsel evidence given mr adcock mr g burn qualified experienced town planning consultant m mascolo qualified town planner employ council appeared subpoena mr r roach qualified experienced architect dr n steele scott mr j young reside adjacent subject land court inspected subject land locality received number exhibit locality characterised residential development comprising predominantly detached dwelling located allotment ranging size 760m yacute 1785m yacute immediate west subject land 29 wood street substantial detached dwelling associated garage tennis court located three allotment collectively comprising area 2090m yacute immediate east subject land four allotment area roughly comparable subject land locality exhibit wide variation housing style age condition dwelling overall high level amenity amenity established largely prevalence substantial well maintained dwelling mature landscaping dwelling locality single storey although finished height differs substantially recent construction older villa type residence generally feature substantially greater floor ceiling height steeply pitched roof recent neighbour least four two storey dwelling within locality defined mr burn mr adcock proposal comprises demolition existing dwelling subject land together associated pool shed tree construction two storey victorian style dwelling dwelling two storey central section single storey wing side proposed portion latter wing extend eastern western boundary respectively subject land front verandah proposed dwelling set back 5 0m commercial road boundary main wall building located 7m boundary double garage set back 10 4m boundary ground floor dwelling contain double garage referred together sitting room dining room study guest suite associated bathroom toilet kitchen family meal room conservatory laundry upstairs section dwelling contain five bedroom associated facility including two walk robe two bathroom one suite main bedroom plus second toilet level building floor ceiling height 3 6m overall height measured finished level lower floor top roof ridge would 9 852m height existing ground level would approximately 10 0m prevent overlooking yard surrounding dwelling proposed install fixed obscure glass height 1700mm finished floor level three upstairs window rear verandah dwelling located 17m northern rear boundary leaving approximately 285m yacute private open space rear dwelling representing 37 total site area inclusive garage 56 3m yacute total ground floor area would 298 3m yacute first floor area 132m yacute front rear verandah together upstairs balcony would add 53 5m yacute floor area external wall constructed red brick roof colorbond slate grey shade front facade hand dressed sandstone woodwork verandah lace work upper level balcony balustrade fence panel gate gutter painted cream turn consider provision development plan particular relevance assessment subject proposal subject land located within residential b 400 zone depicted map un 8 development plan city unley objective zone follows residential b 400 zone objective 1 zone primarily containing dwelling two storey objective 2 provision range dwelling type compatible form scale design existing positive element character area principle development control zone follows principle 1 development primarily dwelling two storey compatible form scale design existing positive element character area principle 2 new dwelling site area le 400 square metre principle 3 development primarily accommodated infill existing sound attractive dwelling replacement incompatible land us unsatisfactory dwelling principle 4 residential development insulate occupant disturbance caused existing non residential land us traffic principle 5 following kind development complying residential b400 zone exception development associated local heritage place identified table un 3 subject compliance condition comprising applicable condition prescribed table un 1 change use land erection building earthwork construction purpose addition dwelling recreation areadetached dwelling residential outbuildingprinciple 6 kind development following area non complying residential b400 zone advertisement nursing homealterations addition existing building structure existing site public car parkdwellings two storey recreation arealand division residential outbuildinglodging house rest homeretirement village council wide development plan provision particular relevance follows unley city objective 14 development residential area sensitive small scale infill objective 15 residential area provide safe attractive residential environment objective 19 preservation enhancement character amenity residential area principle 8 building sited designed way provide privacy access sunlight existing proposed development regard attention paid possibility overlooking overshadowing adjoining development b location window door relation adjacent development c possibility cutting view adjoining development principle 10 material colour finish used construction development chosen complement surrounding development principle 11 development relate term height scale bulk appropriate development subject zone also existing surrounding development particular adjoining residential development principle 17 within residential zone minimal traffic b residential development designed minimise adverse effect adjacent traffic movement c dwelling provide maintain privacy development undertaken would impair amenity residential character e expansion existing service commercial industrial activity likely impair residential character amenity area principle 19 development residential zone maintain attractiveness area place live principle 20 building designed overlook unreasonably overshadow window outdoor living area adjacent dwelling principle 21 residential development designed express individuality character however strong positive local character exists new building designed harmonise existing term form mass scale colour texture material landscaping principle 23 dwelling covered car parking space except designated car parking space located visible public street visitor car parking space provided rate one per dwelling principle 26 covered car parking space residential building readily accessible dwelling serve principle 28 vehicular access allotment public road obtained two point two least six metre apart principle 40 residential development result site detached dwelling minimum depth 20 metre principle 41 set back front dwelling public street distance equal average set back street two adjacent building principle 44 building containing dwelling dwelling within residential zone floor area ratio single storey building 0 4 b two storey building 0 5 c three storey building 0 6principle 45 dwelling within residential zone mixed use 3 zone built ground floor level private yard open sky usable shape least 50 square metre area capable accommodating clothes drying facility landscaping area sufficient use enjoyment occupant dwelling principle 46 private yard area referred principle development control numbered 45 minimum width length le five metre principle 47 yard area dwelling able accessed servicing emergency purpose without need enter dwelling traverse yard adjacent dwelling principle 107 development advertisement erected added altered land portion constructed nearer existing boundary road boundary land shown required road widening plan deposited provision metropolitan adelaide road widening plan act 1972 1976 distance prescribed road portion thereof column 3 table un 2 principle 118 development incorporate landscaping integral part design development include plant mature height scale form complement relate development relevance also objective 11 12 principle 1 2 3 4 9 16 29 37 119 metropolitan adelaide objective 7 variety choice dwelling type meet need preference section community objective 9 safe pleasant convenient efficient residential zone objective 37 amenity locality impaired appearance land building object principle 9 development residential zone impair character amenity locality place live principle 10 residential building located designed unreasonably impair privacy access incident solar radiation adjacent property b dwelling private open space principle 11 landscaping development residential zone enhance residential amenity b screen storage service parking area c provide protection sun wind unreasonably affect adjacent land shadow principle 15 residential development appropriately designed take account climatic topographic condition site relevance also objective 1 6 principle 3 4 13 14 m blencowe council acknowledged subject proposal complied number relevant provision development plan however submitted proposal failed comply development plan number important respect essence case unacceptably bulky site thereby created unacceptable impact adjoining property locality generally support submission referred evidence mr burn effect proposal satisfying zone objective 1 compatible form scale design existing positive element character area required zone principle 1 mr burn view area positive element comprised spacious landscaped setting surrounding dwelling single storey low profile surrounding dwelling especially adjacent dwelling setting back surrounding dwelling one side boundary mr burn referred particular higher usual floor ceiling height proposal resulted building height equivalent three four storey contemporary building floor ceiling height 2 4m 2 7m basis concluding proposal odds overriding intent zone concern also expressed mr burn regarding proposal potential overshadow adjoining development east west portion rear garden dr steele scott property 29 wood street driveway mr young property 60 commercial road contrary unley city principle 8 b cut unreasonable extent easterly view occupant 29 wood street presently enjoy living dining room rear verandah back garden contrary unley city principle 8 c c create undue sense enclosure 29 wood street consequence extent development along western boundary subject land development abutting 47 total length boundary relate poorly adjoining development consequence design paying little regard relationship neighbour single storey generous side boundary setback evidence mr adcock effect considerable diversity age height size style dwelling locality taken consideration fact two storey dwelling envisaged development plan locality suggested mr adcock view proposal keeping positive element character locality furthermore said mr adcock setting back two storey component proposed dwelling side boundary subject land 3m western side boundary 6m eastern sufficient ensure bulk scale portion dwelling would unreasonable impact neighbouring property construction proposed dwelling side boundary would mr adcock view create unreasonable impact adjoining property two reason greater part single storey building element western boundary subject land abutted substantial garage constructed boundary adjoining property 29 wood street thereby impact length latter single storey section proposed dwelling extended another 5 5m along common boundary height corresponding adjacent garage reducing height 2 4m 4 0m along common boundary single storey portion proposed dwelling abutted boundary 29 wood street masked garage latter total length 9 5 metre located 8 0m dwelling 29 wood street provided adequate open space dwelling proposed dwelling would minimal impact thereon term reduced solar access b eastern boundary garage proposed dwelling would constructed boundary length 7 5m remainder dwelling set back 1 58m boundary proposed garage would adjoin mr young carport located common boundary hence would minimal impact dwelling 60 commercial road separated boundary carport driveway mr adcock referred articulation front proposed dwelling slight setback proposed junction existing garage 29 wood street considered would avoid creation continuous wall like effect viewing three property commercial road ensure proposed development read separately adjoining particularly regard siting two existing dwelling within allotment building constructed property boundary said mr adcock common feature locality accordingly proposal would conflict existing character development within locality overall mr adcock opinion proposal reasonable compliance provision development plan related bulk scale residential development including objective 2 principle 1 3 rb400 zone unley city principle 11 17 19 21 49 mr adcock view reinforced evidence mr roach whose opinion completed form building would sufficiently articulated bulky b height relationship proposed building adjoining would appropriate c careful detailing articulation proposed building would ensure established appropriate relationship neighbouring building would enhance streetscape visual sun shading impact adjoining property would unreasonable regard siting adjoining dwelling limited area additional overshadowing garden 29 wood street relative total area garden evidence dr steele scott expressed number concern regarding proposal bulk proposed building would viewed property b scale proposed building relative scale building commercial road c degree enclosure created 5 5m section wall 4m high along eastern boundary evidence mr young three principal concern regarding proposal excessive height proposed building relative building commercial road b bulk two storey component proposed building viewed family room western side house c overshadowing property would occasioned proposal objective 1 residential b400 zone clearly envisages dwelling two storey located within zone however whether two storey dwelling appropriate particular instance dependent upon dwelling inter alia compatible scale design existing positive element character area referred objective 2 principle 1 zone regrettably development plan identify existing positive element character area leaving considerable scope disagreement regard similarly plan tell u whether reference area objective principle refers whole residential b400 zone locality within development proposed latter regard mr burn cross examination expressed view area best interpreted locality view disputed agree m mascolo evidence made reference number dwelling within locality two storey height one north subject land jasper street one corner wood malcolm street one 31 wood street immediately opposite subject land another western side wood street immediately opposite junction commercial road street example latter two essentially incorporate upper level within roofspace observation view considerable diversity design scale dwelling within locality occupying substantial part allotment others set within spacious landscaped ground many older single storey dwelling height substantially greater contemporary single storey dwelling consequence steeply pitched roof greater floor ceiling height typical latter similarly observation side boundary set back also vary considerably locality particular carport substantial garage located eastern boundary property 29 wood street abutting western boundary subject land 60 commercial road carport abuts eastern boundary subject land small part dwelling latter address also abuts eastern boundary allotment example building extending one side boundary also exist locality absence clear expression development plan constitutes existing positive element character area determination latter consequent assessment proposal relevant objective principle particular zone objective 2 principle 1 involves measure subjectivity nevertheless concluded positive element locality identified mr burn reflect adequately diversity architecture scale setback evident view proposed dwelling appears carefully detailed well proportioned view supported planning witness mr roach case regard diversity referred diversity represents view positive element locality satisfied proposal compatible form scale design existing positive element character area required zone objective 2 principle 1 generally unley city objective 15 19 principle 17 19 21 course end matter remains examine effect proposal immediate neighbour regard development plan provision seek prevent new development adverse impact existing development creating overlooking overshadowing inappropriate scale relationship particular unley city principle 8 11 20 metropolitan adelaide principle 10 evidence mr burn proposal well designed right would excessively bulky comparison surrounding dwelling generally lower height estimation 5 6m high furthermore height length proposed boundary wall would impact adversely occupier 29 wood street amenity view unreasonably impaired impact 4m high boundary wall extending north garage eastern boundary distance 5 5m progressively reducing height 2 4m 4m along boundary wall would mr burn evidence create excessive shadow morning across presently garden bed lawn similar impact would occur occupier 60 commercial road lesser degree given area affected afternoon shadow devoted carport driveway proposed dwelling extend far along eastern boundary along western boundary evidence dr steele scott proposal would result significant adverse impact amenity arising bulk proposed dwelling viewed back verandah garden b overshadowing portion well used garden area c heat radiating west facing wall boundary would create problem plant growth within part garden principal concern expressed mr young evidence impact height bulk proposed dwelling streetscape commercial road b impact proposal outlook family room westerly aspect c overshadowing driveway area used play area child mr adcock evidence view setback two storey component proposed dwelling 3m western boundary 6m eastern boundary sufficient ensure bulk scale section dwelling would unreasonable impact neighbouring property opinion number reason proposed setback exceeded often found new infill residential development throughout metropolitan area b two storey development existed locality c position dwelling adjoining allotment two storey section proposed dwelling would 13 5m nearest window dwelling 29 wood street could viewed 12m nearest equivalent window dwelling 60 commercial road setback two storey component proposed dwelling rear property boundary would 19m sufficient ensure unreasonable impact dwelling rear similarly mr adcock view location single storey element proposed dwelling eastern western boundary would impact unreasonable degree adjoining property extent development proposed western boundary would le already undertaken boundary owner adjoining property would largely screened existing garage b dwelling 29 wood street set back 7 5m common boundary single storey wall proposed dwelling visible north existing garage thus maintaining adequate solar access 29 wood street substantial landscaped area two dwelling c eastern boundary garage would constructed boundary remainder dwelling set back 1 58m proposed garage would adjoin eastern neighbour carport also abutted common boundary structure built boundary uncommon locality mr adcock view impact proposal solar access two adjoining property would minimal view supported evidence m mascolo recommended council proposal approved reference bulk height proposal evidence mr roach articulated architectural form proposed dwelling particular setting back two storey component boundary would ensure completed form building would bulky would keeping character dwelling locality b gutter line two storey section dwelling would 7 87m ground level roof extending 2 1m height excessive regard building form degree fenestration proposed would character dwelling locality c careful detailing articulation building including balcony verandah element would result visually acceptable building composition would enhance streetscape final address m blencowe made reference decision victorian administration appeal tribunal tashounidis v shire flinders others 1988 33 apa 427 tribunal 431 noted approval observation made former planning appeal board earlier case bunbury v shire barrabool valid community expectation town planning obligation later development would necessarily constrained height size orientation location give measure protection factor enjoyed earlier building especially light sunlight privacy view hand later development also entitled reasonable enjoyment factor constrained presence earlier dwelling make reasonable enjoyment factor virtually negligible impossible clear must achieved balance reasonable desire competing interest question amenity emphasis must reasonableness m blencowe submitted board comment constituted statement principle highly relevant balancing competing interest necessarily entailed matter presently consideration agree given careful consideration evidence concerning proposal likely impact immediate neighbour observation view done concluded subject appropriate condition proposal generally consistent relevant provision development plan particular directed towards ensuring new development compatible neighbour including unley city principle 8 11 20 metropolitan adelaide principle 10 represents appropriate balance interest appellant owner adjoining dwelling concluded following reason overshadowing private open space occasioned proposal relative area available purpose adjoining property minimal term unley city principle 20 unreasonable b additional overshadowing habitable room adjoining dwelling occasioned proposal c setback side boundary two storey component proposed dwelling height gutter line component relative ridge height adjoining dwelling pitching roof proposed dwelling away side boundary taken together substantial separation distance adjoining dwelling upper level proposed dwelling satisfy latter impact term height bulk seen dwelling acceptable section 4 0m brick boundary wall abutting eastern boundary 29 wood street visible beyond existing garage land likely le impact occupant 29 wood street occasioned occupant 62 commercial road garage 13m long 4 5m high also located boundary e section 4 0m high boundary wall abutting western boundary 60 commercial road largely correspond carport land also abuts boundary remaining single storey eastern component proposed dwelling set back 1 58m western boundary 60 commercial road setback typical single storey residential development metropolitan adelaide f massing articulation careful detailing proposed dwelling setback relative neighbouring development satisfy harmony latter contribute positively existing streetscape concluding also taken consideration fact within residential b400 zone possible erect single storey detached dwelling subject land complying form development dwelling could constructed within 600mm side boundary could window extending 5 0m ground level dwelling could substantially greater impact amenity occupant adjoining dwelling would subject proposal former planning appeal tribunal held mcdonald australia ltd v city payneham others pat 151 1992 75 dealing form development neither permitted prohibited zone improper considering whether development authorised judge extent regard nature attribute development would permitted tribunal view mcdonald expressed context repealedplanning act seem equal application thedevelopment act memorandum circulated party dated 26 october 1998 advised conclusion reason invited consider question condition liaise view agreeing possible party addressed question condition agreed thereon order court 1 provisional development plan consent granted subject proposed development erection two storey dwelling 62 commercial road hyde park development application 090 00403 98 dx subject following condition 1 stormwater building site disposed adversely affect property adjoining subject land 2 upper floor window northern eastern western elevation treated avoid overlooking fitted fixed non openable obscure glazed panel height 1700mm floor level obscure glazing kept place time 3 development take place accordance amended plan marked exhibit a1 prepared david cheney relating development application 090 00403 98 dx except modified condition attaching consent work detailed approved plan required condition completed prior occupation development approved herein 2 copy exhibit a1 remain court file

Mani v Secretary, Department of Education [2021] NSWPICPD 3 (26 March 2021).txt

mani v secretary department education 2021 nswpicpd 3 26 march 2021 last updated 6 april 2021determination appeal decision commission constituted membercitation mani v secretary department education 2021 nswpicpd 3appellant jumna bai manirespondent secretary department educationinsurer allianz agent nsw self insurance corporationfile number a1 2825 20member m c mcdonalddate member decision 8 september 2020date appeal decision 26 march 2021catchwords worker compensation section 11a 1 theworkers compensation act 1987 procedural fairness alleged factual error application ofnorthern new south wale local health network v heggie 2013 nswca 255 12 ddcr 95 reasonable action presidential member acting president michael snellhearing papersrepresentation appellant mr baran counselwalker law grouprespondent mr r hanrahan counselbartier perry lawyersorders made appeal arbitrator certificate determination dated 8 september 2020 confirmed introduction backgroundjumna bai mani appellant worked nsw department education department respondent primary school teacher 1998 recently employed full time permanent teacher king langley public school commenced first term january 2018 appellant state subjected racism 2018 reported executive school towards end year told would moving role learning support relief face face teacher 2019 1 following receipt email mr lambert principal 18 march 2019 appellant met mr lambert m hutton acting deputy principal 19 march 2019 first meeting told number complaint parent asked respond allegation writing appellant subsequently sent written response professional support officer teacher federation principal appellant described encounter principal 28 march 2019 saw office discus rescheduling meeting said found angry described bullying workplace harassment 2 meeting 29 march 2019 second meeting involving appellant mr lambert m hutton mr hayman teacher school also attended meeting support person appellant 3 mr lambert discussed appellant response allegation said response answer complaint appellant told needed include proactive response show seeking improve interaction student class management appellant stated drew professional development plan pdp approval supervisor stated mr lambert chose pdp forced include said plan individual teacher goal yet mr lambert said could make change plan ask appellant said stated alternative mr lambert would refer matter epac department employee performance conduct directorate investigate 4 meeting 8 may 2019 third meeting mr lambert said would refer pdp epac approval appellant stated telephoned epac someone told epac nothing pdp appellant said 16 may 2019 school concluded met outside classroom mr lambert m hutton walked mr lambert office gave letter stated would face disciplinary action failed mr lambert wanted said felt intimidated embarrassed anxious stated struggled continue working three day went work 5 appellant paid worker compensation benefit provisional basis 19 march 2019 6 insurer issued 78notice dated 6 august 2019 denied liability basis ofs 11a 1 theworkers compensation act 1987 1987 act relying department allegedly reasonable action respect performance appraisal 7 denial confirmed notice dated 6 january 2020 insurer relied alleged reasonable action respect performance appraisal discipline 8 proceeding commenced ard lodged 22 may 2020 matter listed conciliation conference arbitration hearing 14 july 2020 mr baran appeared appellant mr hanrahan respondent much time spent attempted conciliation possible deal arbitration hearing remaining time neither party sought call oral evidence cross examine matter dealt basis written submission submission lodged appellant behalf dated 27 july 2020 17 august 2020 reply submission lodged respondent behalf dated 12 august 2020 commission issued certificate determination dated 8 september 2020 accompanied 27 page reason 9 arbitrator accepted defence made pursuant 11a 1 1987 act basis discipline award favour respondent appellant appealed decision appeal lodged worker compensation commission abolished 10 matter come within worker compensation division personal injury commission operation 2020 act 1 march 2021 11 2020 act amended certain part 1998 act relevantly arbitrator former worker compensation commission became non presidential member personal injury commission amendment allow appeal decision member personal injury commission presidential member worker compensation division personal injury commission accordance withs 352of theworkplace injury management worker compensation act 1998 1998 act arbitrator reasonsthe arbitrator summarised statement evidence appellant 12 mr lambert 13 noted reply included table summarising issue respect appellant performance three previous school issue 2018 led moved class end 2018 said unclear whether document prepared mr lambert intended form part statement 14 arbitrator referred number described p olicies relevant matter dispute document titled australian professional standard teacher included goal pdp document teacher federation called know right responsibility performance development framework code conduct described standard behaviour expected employee department included employee expected comply lawful direction defined direction fall within scope job description involves illegality reasonable excerpt department complaint handling policy guideline provided le serious matter resolved informally unless reason inappropriate document teacher federation dealing implementing performance development framework summarised procedure observation professional practice goal setting pdps 15 arbitrator referred document titled tr6 complaint handling summarised new complaint handling procedure implemented 2017 arbitrator said evidence file deal role epac noted document said complaint handling procedure policy applied parent expression dissatisfaction behaviour decision staff provided subject complaint informed within five working day copy summary specific provided time provided subject complaint arrange support person two day sufficient written particular provided meeting time allowed written response appellant also relied pamphlet teacher federation described bullying arbitrator referred department guideline management conduct performance policy included maintaining appropriate standard conduct work related performance teacher 16 arbitrator noted dispute m mani suffered psychological injury totally incapacitated work 17 arbitrator referred report clinical note treating practitioner appellant saw dr ducic general practitioner treatment anxiety associated work stress 2011 2012 2013 2016 2017 2018 doctor report dated 12 may 2013 14 july 2017 dealt previous claim doctor noted report anxiety result racist comment april 2018 treatment declined reference anxiety stress work april 2018 19 march 2019 19 march 2019 dr ducic recommended work cover deterioration mental health 22 march 2019 complaint stress work appellant said yell kindergarten child felt parent talked first 15 may 2019 appellant told dr ducic enquiry epac described ipac told case closed said principal telling truth 18 arbitrator referred material m dilek psychologist m dilek referred appellant history regarding two prior harassment bullying matter taken work cover commission instance found case ill treatment history instance appellant cleared wrongdoing placed alternate school m dilek referred history issue since appointment new principal appellant targeted bulled sic harassed work 19 arbitrator summarised material dr jovanova appellant treating psychiatrist treated appellant respect three distinct episode bullying 2014 2017 2019 doctor said appellant consistently reported psychiatric symptom always developed context bullying work dr jovanova reported insurer 5 july 2019 saying appellant informed principal distorted fact deliberately systematically breached protocol conflict resolution dr jovanova said appellant would best respond fair treatment workplace doctor recommended compassionate transfer another school 20 report dr rastogi psychiatrist qualified appellant case summarised dr rastogi diagnosed adjustment disorder depressed anxious mood said injury caused constant lack support chronic victimisation intimidation threat mr lambert dr rastogi said injury resulted racial discrimination student intimidation scrutiny persecution principal ongoing threat support department education doctor thought future appellant would capable graded return primary teaching different school 21 arbitrator also summarised report dr c smith psychiatrist qualified insurer dated 15 july 2019 22 dr smith diagnosed adjustment disorder depression anxiety considered predominant cause appellant injury initiation informal performance management respect parental complaint arbitrator noted appellant rely racist remark made 2018 allege change duty beginning 2019 caused psychological injury 23 arbitrator summarised appellant submission appellant counsel referred need reasonable conduct predominant sole cause relevant injury defence succeed submitted number area respondent conduct high handed vindictive targeted extremely disproportionate issue raised disciplinary action circumstance entirely unreasonable relevant action unauthorised 24 arbitrator summarised respondent submission submitted appellant case address predominant cause injury necessary mr lambert manage multiple complaint appellant teaching method induced fearful reaction student minute relatively informal meeting showed appellant perceive problem sought shift responsibility respondent submitted mr lambert action objectively fair guided code conduct sound educational policy submitted reasonableness respondent action assessed objectively citingnorthern nsw local health network v heggie 25 taking broad view whole process context appellant employment history action department reasonable submitted mr lambert version event accepted respondent submitted making provisional payment compensation admission liability 26 appellant reply submitted deemed date injury 19 march 2019 relevant event series meeting appellant mr lambert event previous school irrelevant assist previous vulnerability meant claim must succeed respondent take find submitted correct process implemented involved informal discussion mediation alternative dispute resolution counselling 27 arbitrator said appellant submission relied event 2019 arbitrator said understanding controversy injury solely caused event although previous claim arbitrator found injury caused event march may 2019 28 noted various psychiatrist made similar diagnosis 29 arbitrator rejected appellant submission compensation payment made constituted admission referring 280 1998 act 30 arbitrator dealt 11a 1 defence said satisfied party conducted matter basis discipline action relied purpose defence referred number well known authority dealing section 31 included reference summary sackville aja inheggie following review authority principle governing defence 32 arbitrator referred meeting 19 march 2019 referred appellant case know meeting disciplinary nature think anything serious arbitrator said appellant encouraged bring support person email arranging meeting stated need meet conveying meeting necessary catch reference confidentiality suggested serious july 2019 appellant told dr smith take support person meeting person take arbitrator preferred contemporaneous account appellant statement prepared nearly year last meeting bring support person think meeting anything serious 33 arbitrator said nine parental complaint kind school would take seriously applied particularly child reluctant attend school day appellant science class involved disagreement teaching method arbitrator said appellant response suggested failed understand seriousness complaint said fact mr lambert contacted epac appropriate complaint handling policy showed epac function included handling parental complaint staff arbitrator said complaint handling policy required confidentiality reasonable disclose complainant identity 34 arbitrator said mr lambert provided copy minute meeting mr lambert statement dated 7 june 2019 two week appellant ceased work arbitrator said mr lambert evidence differed appellant preferred contemporaneous statement documentary evidence 35 arbitrator said appellant complained inaccuracy minute explain minute incorrect arbitrator accepted minute accurate 36 arbitrator described meeting 29 march 2019 referred appellant view meeting appellant said afforded procedural fairness interrogated response afforded due respect asked provide proactive response show trying improve interaction student appellant said advised protocol arbitrator said minute reflected careful record careful discussion mr lambert explained school seeking work appellant appellant given opportunity explain response mr lambert explained epac contacted due volume complaint short period mr lambert explained next step review pdp goal view need appellant change manner reminded appellant eap employee assistance program 37 arbitrator referred meeting 8 may 2019 saying gain contemporaneous note meeting contrast appellant summary minute indicated appellant asked happened epac complaint mr lambert said finding sent epac awaiting response said meantime adjustment made appellant pdp goal arbitrator said minute showed appellant considered issue stemmed misunderstanding parent appellant resistant amendment pdp goal little insight complaint arisen arbitrator said appellant description meeting mr lambert lied interaction epac particular pdp part process arbitrator said minute reveal arbitrator said minute suggest pdp form would sent epac 38 arbitrator referred letter dated 13 may 2019 providing direction code conduct shortly given letter appellant ceased work mr lambert said time letter handed told appellant program support would arranged letter said purpose support appellant clear language explained consequence non compliance mr lambert stated appellant said would accept change pdp would participate support offered 39 arbitrator said required ass whole process may reasonable even defect assessment objective based school knew time 40 arbitrator said appellant argued department conduct unreasonable speaking epac speaking b giving advance notice denying procedural fairness c permitting m mani opportunity present case investigate matter raised ignoring m mani said defence e pointing clause code conduct breached one 41 arbitrator said school received nine complaint appellant teaching short time early 2019 tenth complaint received disciplinary process began mr lambert required consider act appellant informed immediately mr lambert away school unreasonable appropriate complaint dealt principal 42 arbitrator accept appellant submission complaint trivial student fearful attending appellant class one child reluctant attend school day taught appellant complaint consequence appellant teaching method school required take seriously followed appellant role changed end 2018 due complaint 43 arbitrator said work epac included parental complaint staff epac appellant agreed complaint could managed locally complaint handling policy mandated confidentiality reasonable complainant identity disclosed complaint disclosed within five day contrary complaint handling policy arbitrator said unreasonable given mr lambert absence school 44 arbitrator referred first meeting attempt discus complaint reason appellant action inappropriate appellant accepted issue raised speaking loud voice tearing page child book accept action inappropriate appellant given detail complaint opportunity respond writing responded within 14 day given arbitrator said satisfied first two meeting appellant given opportunity present case said minute demonstrated appellant given opportunity say wanted say second meeting mr lambert sought detail appellant written response arbitrator satisfied mr lambert gave appellant detailed explanation teaching area required improvement 45 arbitrator concluded serious substance complaint mr lambert action reasonable necessary reasonable process conducted reasonable manner amount bullying harassment arbitrator said third meeting discus amendment pdp objectively amendment goal necessary improve performance area complaint reasonable appellant considered professional development different thing complaint fourth meeting letter dated 13 may 2019 handed letter stressed purpose support first time reference remedial disciplinary action appellant failed comply handed meeting rather sent appellant 46 arbitrator concluded process conducted careful manner extended period aimed improving appellant performance result parental complaint serious issue arbitrator found department conduct taken whole reasonable conduct respect discipline 47 conduct cause injury compensation payable award respondent paperssection 52 3 2020 act provides 3 commission satisfied sufficient information supplied connection proceeding commission may exercise function act without holding conference formal hearing regard procedural direction pic2 wc3 document submission party appeal proceed determined basis document satisfied sufficient information proceed paper without holding conference formal hearing appropriate course circumstance threshold mattersthere dispute party threshold requirement quantum time pursuant s 352 3 352 4 1998 act met nature appeal pursuant section 352 5 section 352 5 1998 act pursuant appeal brought provides appeal section limited determination whether decision appealed affected error fact law discretion correction error appeal review new hearing inraulston v toll pty ltd 48 roche dp appliedwhiteley muir zwanenberg ltd v kerr 49 cited approval brennan cj toohey mchugh gummow kirby jj inzuvela v cosmarnan concrete pty ltd 50 nature appeal process pursuant 352 1998 act arbitrator though basing finding credit may preferred one view primary fact another probable finding may disturbed presidential member probability outweigh chosen arbitrator said conclusion wrong b found primary fact arbitrator may draw particular inference even fact arbitrator decision must displaced enough presidential member would drawn different inference must shown arbitrator wrong c may shown arbitrator wrong showing material fact overlooked given undue little weight deciding inference drawn available inference opposite sense chosen arbitrator preponderant opinion appellate court arbitrator decision wrong 51 indavis v ryco hydraulics pty ltd keating p observed principle consistently applied commission 52 deputy president inraulstonalso cited following passage frombranir pty ltd v owston nominee 2 pty ltd 53 process considering fact giving weight view advantage held trial judge choice arises conclusion equally open finely balanced preponderance view conclusion error necessarily arrived merely preference view appeal court fact fact contrary view reached trial judge 54 inheggie sackville aja said fortiori statutory right appeal requires demonstration decision appealed affected error appellate tribunal entitled interfere decision ground think different outcome preferable seenorbis v norbis 1986 hca 17 161 clr 513 518 519 55 principle applicable appeal pursuant 352 5 1998 act considered court appeal inworkers compensation nominal insurer v hill 56 honour said error presidential member dealing appeal pursuant 352 5 applying description judge function appeal explained barwick cj inwhiteley muir basten ja said respect error fact finding line preferring different result identifying error mean easy draw clearly deputy president sought adopting language complained also barwick cj sought inwhiteley muirin using language identify difference appeal based finding error hearing de novo one must add rehearing appeal way rehearing court asked whether finding fact open trial judge might demonstrate unduly limited understanding court function however language place determining appeal factual finding 352 5 57 legislationsection 11a 1 1987 act provides 11a compensation psychological injury caused reasonable action employer 1 compensation payable act respect injury psychological injury injury wholly predominantly caused reasonable action taken proposed taken behalf employer respect transfer demotion promotion performance appraisal discipline retrenchment dismissal worker provision employment benefit worker departmental documentsthere large body material evidence document issued department teacher federation deal process adopted disciplinary performance related action taken department test reasonableness 11a 1 objective one decided simply reference whether respondent complied process example requirement departmental guideline 58 extent department complied administrative process could still relevant assessment whether action proposed action reasonable code conductthe material includes code conduct document face issued department 59 section document deal happens breach code conduct includes procedural fairness requires decision maker inform allegation made yougive opportunity respond andnot personal interest outcome 60 section document deal duty care definition duty provides general term duty care legal obligation provide reasonable care performing act making omission could foreseeably harm others discussion duty includes 21 2 consideration safety relate physical psychological wellbeing individual 21 3 employee duty take reasonable care safety welfare child young people care duty take reasonable action protect student child young people risk harm reasonably predicted example risk known hazard foreseeable risk situation preventative measure taken standard care required example degree supervision need commensurate student maturity ability 21 4 duty care student applies activity function conducted arranged school student care employee risk associated activity need assessed managed activity undertaken 61 appendix 3 document titled fair warning fair action empowering manager support professional behaviour includes employee engages behaviour disruptive effective functioning workplace manager respond promptly using fair warning approach address behaviour manager initially counsel employee poor behaviour persists meet employee provide opportunity respond identified concern necessary manager may subsequently provide written direction poor behaviour occurs manager authority give employee written direction engage conduct warning repeated unacceptable behaviour result disciplinary action taken code conduct breached third time manager authority refer matter employee performance conduct directorate epac recommendation action taken 62 appendix 3 also includes following process procedurally fair yes employee right know basis concern conduct right respond concern fairly heard manager must ensure clearly advised employee concern done face face meeting employee may bring support person meeting respond meeting within agreed timeframe employee refuse meet discus concern manager make note effort meet employee proceed process may include forwarding letter direction 63 complaint handling policy guidelinesthere document attached ard handwriting inserted top read nsw dept education training complaint handling policy guideline managing complaint read required manage complaint decision required regarding appropriate procedure circumstance matter assessed le serious resolved using informal resolution unless reason approach considered inappropriate formal procedure needed situation appropriate possible resolve matter informally 64 teacher federation update performance development frameworkthe ard includes document headed nsw teacher federation current issue update includes article called implementing performance development framework framework say provides advice clarification implementation performance development framework includes key feature approach performance development individual teacher executive principal driver professional development decision made negotiation one supervisor important teacher able determine direction focus action process capacity individual teacher judgement crucial defining mean professional framework based positive mutually respectful collaboration professional intended process top line management supervisor directs teacher supervisor guide support colleague negotiated process meet requirement framework teacher progress process developing performance development plan pdp completing self assessment participating annual review structured discussion annual review determine wording describe teacher progress toward goal agreed written assessment 65 section document dealing observation professional practice goal setting 66 section document headed cautionary note regarding australian institute teaching school leadership aitsl state framework jointly developed federation department part term settlement salary condition award nature role aitsl however changed since federal government unilaterally determined aitsl board longer comprised representative educational organisation stated aitsl board comprised direct political appointment response change aeu australian education union formally decided cease cooperation current politicised aitsl work andcontinue support implementation professional standard practice process initiated aitsl prior june 2015 negotiated industrial award agreement teacher registration accreditation requirement member therefore advised policy practice process produced aitsl june 2015 accepted educationally sound reflective view teaching profession 67 teacher federation complaint handling policythere document bearing insignia nsw teacher federation headed tr6 complaint handling document refers various tool complaint handling policy january 2017 say federation consulted 2017 policy procedure document agree many aspect final version released department however currently procedure teacher school must follow document go set following work epac encompasses management child protection investigationsparental staff complaint staff efficiency matter dealt staff efficiency conduct team sect epac directorateserious misconduct issue dealt serious misconduct investigation team smit epac directorate public interest disclosure complaint corruption maladministration type matter referred epac principal investigation necessary authority specific detail referral obligation department tool referring complaint heading complaint resolved complaint handling policy procedure stated department policy procedure apply following community member parent expression dissatisfaction aspect service provided contracted department including behaviour decision staff practice policy procedure way department handled complaint 68 guideline management conduct performancethe material includes guideline management conduct performance face document issued department describes applying generally officer e permanent employee employed department theteaching service act 1980 policy statement cl 3 document includes object legislative scheme management conduct performance maintain appropriate standard conduct work related performance officer teaching service officer employed chapter 1a thepublic sector employment management act2002

Humane Society International and Minister for the Environment and Heritage [2006] AATA 298 (3 April 2006).txt

humane society international minister environment heritage 2006 aata 298 3 april 2006 humane society international minister environment heritage 2006 aata 298 3 april 2006 last updated 4 april 2006administrativeappealstribunaldecision reason decision 2006 aata 298administrative appeal tribunal n2005 339general administrative divisionre humane society internationalapplicantand minister environmentand heritagerespondentdecisiontribunal hon howard olney qc deputy presidentmrs josephine kelly senior membermr r way memberdate 3 april 2006place sydneydecision tribunal affirms decision review sgd deputy president olneycatchwordsenvironmental law review decision declare fishing operation southern bluefin tuna sbt fishery approved wildlife trading operation sbt exempt native specimen minister must rely primarily upon outcome assessment carried purpose deciding commercial fishery approved wildlife trade operation minister making declaration must consider consistent object act detrimental survival sbt likely threaten relevant ecosystem sbt highly valued fish australia member convention conservation sbt establishes global total allowable catch australian sbt fishery managed australian fishery management authority afma sbt fishery management plan afma must manage prepare assessment australian sbt fishery accordance efficiency precautionary principle economic efficiency cost recovery implementation australian obligation international agreement principle governing fishery fishery conducted manner lead overfishing managed minimise impact function biological diversity ecosystem tribunal rely assessment tribunal relies primarily assessment decision affirmed legislationenvironment protection biodiversity conservation act 1999ss part 10 part 13a part 13 146 153 178 303ba 303db 303dd 303fn 303fra 303ft 303gj 391 502 503fisheries management act 1991ss 17 18fisheries administration act 1991reasons decision3 april 2006 hon howard olney qc deputy presidentmrs josephine kelly senior membermr r way memberthe application1 applicant seek review decision minister environment heritage minister declaring fishing operation southern bluefin tuna sbt fishery approved wildlife trade operation pursuant provision ofs 303fnof theenvironment protection biodiversity conservation act 1999 epbc act tribunal jurisdiction review minister decision conferred 303gj 1 h epbc act exempt native wildlife specimens2 part 13a epbc act s 303ba 303gy bear heading international movement wildlife specimen section 303dd make offence export regulated native specimen specimen inter alia included list exempt native specimen established 303db instrument published gazette 1 december 2004 minister amended list exempt native specimen include fish taken sbt fishery subject restriction including specimen covered declaration approved wildlife trade operation 303fn relating fishery occasion acronym wto used refer wildlife trade operation purpose 303fn operation wildlife trade operation operation taking specimen relevantly commercial fishery 303fn 10 declaration3 1 december 2004 minister caused published gazette declaration dated 10 november 2004 operative provision state hereby declare operation harvesting specimen derived fish invertebrate specimen listed part 13 act taken southern bluefin tuna fishery defined southern bluefin tuna fishery management plan 1995 amended made thefisheries management act 1991 approved wildlife trade operation accordance 303fn 2 10 purpose act unless amended revoked declaration valid 17 november 2007 b subject following condition 1 operation fishery carried accordance southern bluefin tuna fishery management plan 1995 amended 2 australian fishery management authority afma inform department environment heritage change southern bluefin tuna fishery management plan 1995 amended significant policy document 3 report produced presented department environment heritage annually include statement extent performance criterion southern bluefin tuna fishery management plan 1995 amended met year information sufficient allow assessment progress afma implementing recommendation made strategic assessment southern bluefin tuna fishery 2004 4 combined effect minister declaration listing sbt exempt native specimen currency approved wildlife trade operation export sbt offence 303dd part 13 threatened species5 one issue raised applicant minister acted prematurely making declaration deliberation minister threatened specie scientific committee whether sbt listed endangered specie pursuant part 13 epbc act finalised 6 part 13 epbc act deal inter alia listing threatened specie endangered category threatened specie 178 threatened specie scientific committee established 502 function include advising minister amending updating list established part 13 503 b 7 declaration made minister expressly excludes approved wildlife trade operation specimen listed part 13 epbc act would seem basis applicant complaint sbt subsequently listed part 13 period approved wildlife trade operation taking sbt longer authorised declaration hand sbt listed real objection particular ground making declaration statutory scheme8 section 303fn mandate minister must declare operation approved wildlife trade operation unless satisfied certain matter 303fn 3 requires deciding whether declare operation approved wildlife trade operation minister must regard certain matter 303fn 4 9 far presently relevant matter minister must satisfied pursuant 303fn 3 declaring operation approved wildlife trade operation 303fn 3 operation consistent object part b operation detrimental survival taxon operation relates ii conservation status taxon operation relates ba operation likely threaten relevant ecosystem including limited habitat biodiversity object part 13a set 303 ba 1 ensure australia complies obligation cite biodiversity convention b protect wildlife may adversely affected trade c promote conservation biodiversity australia country ensure commercial utilisation australian native wildlife purpose export managed ecologically sustainable way e promote humane treatment wildlife f ensure ethical conduct research associated utilisation wildlife h ensure precautionary principle taken account making decision relating utilisation wildlife 10 cite referred 303ba 1 mean convention international trade endangered specie wild fauna flora done washington 3 march 1973 amended force australia time time convention concern specimen listed appendix convention thereby afforded varying level type protection exploitation trade sbt cite listed specimen 11 issue concerning biodiversity convention raised application relevantly article 14 convention imposes upon contracting party obligation far possible appropriate introduce appropriate procedure requiring environmental impact assessment proposed project likely significant adverse effect biological diversity view avoiding minimizing effect appropriate allow public participation procedure b introduce appropriate arrangement ensure environmental consequence program policy likely significant adverse impact biological diversity duly taken account enactment part 13a epbc act 2001 appears direct response australia obligation convention 12 precautionary principle lack full scientific certainty used reason postponing measure prevent degradation environment threat serious irreversible environmental damage epbc act 391 2 section 391 1 requires minister must take account precautionary principle making decision listed 391 3 includes decision declaring operation approved wildlife trade operation extent consistently provision act 13 matter relevant application minister must regard pursuant 303fn 4 deciding whether declare operation approved wildlife trade operation 303fn 2 significance impact operation ecosystem example impact habitat biodiversity b effectiveness management arrangement operation including monitoring procedure however deciding whether declare commercial fishery approved wildlife trade operation purpose 303fn minister must rely primarily outcome assessment relation fishery carried purpose division 1 2 part 10 epbc act 303fn 10a limit matter may taken account deciding whether make declaration 303fn 10b 14 division 1 part 10 epbc act 146 provides making agreement minister responsible person adoption implementation policy plan program assessment made impact action policy plan program matter protected provision part 3 act 146 1 subsection 146 2 set detail various process provided agreement 15 regulation epbc act may prescribe assessment process used purpose inter alia 303fn ass potential impact environment wildlife trade operation operation likely significant impact environment 303fra 1 however regulation apply relation wildlife trade operation operation taking specimen commercial fishery 303fra 4 follows regulation made exercise power conferred 303fra application assessment process involved relation declaration presently consideration 16 clear legislative intention disclosed 303fn 10a indicates assessment process applicable declaration 303fn 2 relation commercial fishery governed assessment made pursuant part 10 exclusion commercial fishery wildlife trade operation regulatory regime established 303fra tends add emphasis significance requirement 303fn 10a minister must rely primarily upon outcome assessment carried purpose division 1 2 part 10 deciding whether declare commercial fishery approved wildlife trade operation 17 way summary appropriate observe order affirm minister decision make declaration tribunal must satisfied operation relates consistent object part 13a 303fn 3 ii detrimental survival conservation status sbt 303fn 3 b iii likely threaten relevant ecosystem including habitat biodiversity 303fn 3 ba tribunal must regard iv significance impact operation ecosystem 303fn 4 v effectiveness management arrangement operation including monitoring procedure 303fn 4 b performing function tribunal must rely primarily outcome assessment relation sbt fishery carried purpose division 1 2 part 10 303fn 10a may take matter account 303fb 10b 18 view primacy accorded 303fn 10a assessment part 10 epbc act decision making process appropriate review outcome relevant assessment take account relevant evidentiary material tribunal hearing19 application heard period six day 23 26 29 september 2005 11 november 2005 20 outset issue raised confidential nature certain document relating meeting body known southern bluefin management advisory committee held 21 22 september 2005 general thrust issue raised document question contained confidential material put considered meeting commission conservation southern bluefin tuna ccsbt scheduled held mid october 2005 reference ccsbt made later decision unnecessary canvas detail nature material except say related stance australian delegation might take upcoming meeting ccsbt hearing argument interested party tribunal made order pursuant tos 35 2 theadministrative appeal tribunal act 1975restricting access relevant document related part transcript well giving direction person may present part proceeding involved discussion document conclusion proceeding 29 september 2005 tribunal agreed adjourn matter 11 november 2005 anticipation ccsbt meeting held october 2005 may produce outcome relevant issue tribunal following october 2005 meeting ccsbt longer basis claim confidentiality material question public domain 21 documentary material lodged tribunal pursuant tos 37of theadministrative appeal tribunal act 1975 document extended 1 750 page addition document tendered course hearing including affidavit dr thomas w polachek dr james findlay messrs glenn david hurry andrew mcnee gave oral evidence cross examined latter three called give evidence behalf minister affidavit evidence tendered relation confidentiality issue relevant substantive issue tribunal 22 affidavit professor rothwell tendered cross examined evidence dispute including convention conservation southern bluefin tuna give australia power veto proposed decision ccsbt total allowable catch quota allocation 23 australian fishery management authority afma granted leave make submission following suggestion applicant way alternative setting aside minister decision tribunal might instead vary minister declaration imposing limit catch authorised taken pursuant approved wildlife trade operation afma dispute minister hence tribunal power impose condition detailed submission afma examined complex interaction thefisheries administration act 1991 thefisheries management act 1991and epbc act function responsibility afma central matter issue 303ft epbc act particular paragraph 4 c section 24 heading 303ft additional provision relating declaration section applies inter alia declaration made 303fn 303ft 1 minister considers operation subject declaration extent relates particular class specimen instrument declaration specifies class specimen operation covered declaration extent relates class specimen 303ft 3 instant case minister relied upon provision confining operation harvesting fish taken sbt fishery excluding specimen listed part 13 subsection 4 particular relevance provides 4 minister may make declaration plan operation even though considers plan operation subject declaration particular period b certain circumstance exist c certain condition complied case instrument declaration specify period circumstance condition guidance extent operation subparagraph 4 c found subsection 8 simply state condition may relate reporting monitoring 25 nothing found 303ft support proposition power impose condition pursuant s 4 c limited condition relating reporting monitoring indeed minister declaration although impose condition type also imposes paragraph b 1 condition operation fishery carried accordance sbt fishery management plan 1995 amended cannot suggested latter condition relates merely reporting monitoring construction section would appear scope s 4 c unlimited appropriate circumstance may open minister impose condition effect limiting volume number specimen could taken part operation question southern bluefin tuna26 following description general biological characteristic sbt based upon expert evidence dr polachek dispute sbt highly migratory specie pelagic fish found throughout southern temperate zone ocean primary 30deg south 45deg south except easterly region south pacific live 40 year grow weight 200 kilogram length 200 centimetre single global stock sbt one known spawning ground indian ocean south java 7deg south 20deg south spawning occurs september april young fish migrate southward along west coast australia large number tend spend summer december april southern eastern coastal water australia stage generally around 9 12 month considered recruited stock age 1 year large unknown fraction juvenile sbt spend summer near shore water around southern australia primarily great australian bight generally spend winter deeper oceanic water found far south africa sbt near australia form surface school deeper oceanic water found near surface age 5 seldom found near shore water upon reaching maturity 8 14 year individual return spawning ground south java spawning occurs extended period length time individual spend spawning ground known known whether individual spawn every year spawning return feeding ground southern ocean 27 sbt one highly valued fish sashimi especially japan main market specie identified vulnerable overfishing 28 although 30 country involved taking sbt majority global catch taken australia japan new zealand indonesia korea two separate method used taking sbt namely long lining purse seine long lining involves catching fish mainline several kilometre length usually 20 50 kilometre australian fishery 100 kilometre global fishery many hundred even thousand hook purse seine method involves gathering surface school sbt large net moving tow cage low speed transfer farm located close shore transferring farm cage fattened sale 29 majority global catch sbt taken long lining remainder taken purse seining preliminary figure 2001 2003 season suggest proportion 8 237 tonne 58 7 per cent long lining 5 787 tonne 41 3 per cent purse seining almost 99 7 per cent sbt taken australian fishery harvested purse seine virtually whole catch 98 per cent taken farm cage port lincoln south australia fattened grown sale 30 sbt focus international fishery since 1950s initially japanese long liner fished spawning ground south java 1960s extended sbt area southern ocean long line catch peaked early 1960s 81 605 tonne 1982 australian catch peaked 21 500 tonne came purse seining canning large scale catch japanese vessel 1960s later japanese australian vessel 1970s 1980s diminished population early 1980s sign sbt spawning stock juvenile dangerously overfished australia japan new zealand introduced informal arrangement collaborative management fishery 1989 progressive reduction 1980s set informal catch limit 6 065 tonne japan 5 265 tonne australia 420 tonne new zealand catch limit remained 1997 involved substantial reduction take object allow stock rebuild decade commercial harvesting caused steep decline parental biomass convention conservation sbt31 1994 australia japan new zealand entered convention conservation southern bluefin tuna convention provides establishment ccsbt scientific committee advisory body one major function ccsbt decide upon total allowable catch allocation among party article 8 1 b occasion acronym tac used refer total allowable catch article 14 provides observer state engage process convention article 18 state may accede convention thereby bound term 32 late 2001 republic korea acceded convention august 2002 fishing entity taiwan became member extended ccsbt 2004 philippine became formal co operating non member whilst indonesia south africa observer status 33 period three year convention entered party continued observe previously agreed reduced catch limit 1998 2002 agreement could reached however 2003 2004 fishing season ccsbt set global total allowable catch 14 030 tonne following national catch allocation member japan 6 065 tonnesaustralia 5 625 tonnestaiwan 1 140 tonneskorea 1 140 tonnesnew zealand 420 tonnesnon member asked abide bycatch limit 50 tonne philippine 30 tonne south africa 800 tonne indonesia absence unanimous agreement party occurred 2005 previously agreed total allowable catch national allocation remain force 34 object setting total allowable catch level since late 1980s rebuild spawning biomass 1980 level first 2010 2020 spawning biomass sbt remains historically low level consensus amongst scientist objective rebuilding spawning biomass 1980 level 2020 unlikely achieved management plan35 subject certain exception presently relevant afma required bys 17of thefisheries management act 1991to determine writing plan management fishery section 17sets detailed procedure followed formulation plan management specifies various matter required dealt plan unders 18 1 plan must first submitted relevant minister may either accept plan 18 2 refer back afma indication accepted 18 3 latter event afma required soon practicable take step appear necessary ensure acceptance plan minister 18 4 minister accept plan procedure ofss 18 3 4 continue apply plan either accepted minister withdrawn afma 36 afma determines plan management fishery unders 17of thefisheries management act 1991 must make agreement 146 epbc act assessment impact action plan matter protected provision part 3 consider recommendation made minister agreement epbc act 148 section 153 provides endorsement accreditation plan management thefisheries management act 1991made pursuant agreement unders 146 37 august 2004 minister made principle decision accredit sbt fishery management plan 1995 amended thereby incorporating amendment recommended afma course carrying strategic assessment sbt fishery reference made amended plan came effect 1 december 2004 38 australian sbt fishery managed afma thefisheries management act 1991and sbt fishery management plan managing fishery afma take advice sbt management advisory committee expertise based reference group including representative conservation movement industry recreational fishing federal state territory government sbt fishery management plan afma required manage australian sbt fishery manner consistent principle efficiency cost effectiveness ecologically sustainable development exercise precautionary principle economic efficiency accountability cost recovery implementation australia obligation international agreement 39 afma responsible determining australia national catch allocation fishing season dividing catch allocation among operator individual transferable quota form statutory fishing right ensuring australia exceed national catch allocation managing interaction specie australian sbt fishery managing interaction sbt australian fishery sbt fishery management plan afma may determine national catch allocation higher australia allocation determined ccsbt must also regard decision ccsbt australia obligation international agreement management sbt fishery afma strategic assessment40 september 2002 afma produced draft report entitled assessment report southern bluefin tuna afma assessment made pursuant agreement minister afma entered december 2001 provision 146 epbc act addendum report produced june 2004 following public comment submission 41 afma assessment substantial document comprising 140 page 3 part respectively describe assessment process background information afma provides detailed description sbt fishery detail assessment sbt fishery following general observation made executive summary report assessment report southern bluefin tuna fishery developed accordance afma obligation theenvironment protection biodiversity conservation act 1999to prepare strategic assessment report commonwealth fishery assessment report fishery export component report considers impact fishery specie caught within fishery broader marine environment southern bluefin tuna target specie landed fishery southern bluefin tuna highly migratory specie fished nation early 1980 concern status fish stock resulted australia becoming member commission conservation southern bluefin tuna commission signatory convention conservation southern bluefin tuna commission member australia new zealand japan recently korea taiwan ccsbt meet annually discus management southern bluefin tuna set annual allowable catch member country currently sbt stock considered ccsbt scientist overfished spawning stock severely depleted current catch severely limiting probability rebuilding commission agreed level report ass australian management regime southern bluefin tuna fishery management plan 1995 draft sbt plan amendment annex 2 due influence role international arrangement status sbt stock referred appropriate assessing australian fishery assessment undertaken primarily collecting existing data report relating sbt fishery information checked scientific environmental fishery management agency discussion industry non government organisation representative summary identifies discus said two principle guided assessment namely principle 1 fishery conducted manner lead fishing stock fished fishery must conducted high degree probability stock recover principle 2 fishing operation managed minimise impact structure productivity function biological diversity ecosystem although expressed form two principle directly address issue raised s 3 4 303fn epbc act 42 executive summary asserts relation principle 1 implemented australian fishery management plan afma belief strong verifiable framework ensure australia meet national international obligation sbt management arrangement address requirement management plan obligation commit australia ensuring sbt mortality accurately counted using reliable information collection system implementation observer program provide independently validated data purse seine long line sector relating catch target bycatch specie robust stock assessment process dynamic status fishery australian scientist actively contribute part commission process arrangement place directly control level take fishery also procedure limiting take emergency situation relation principle 2 following comment made australian fishery objective high chance achieved reason include nature australian sbt fishing operation primarily purse seine considered low impact assessment monitoring ecological impact potential risk addressed via ecological risk assessment commonwealth fishery undertaken csiroimplementation bycatch action plan australia tuna fishery andmanagement plan obligation impose condition fisher ensure protection ecologically related associated dependant specie future action australian sbt fisherythe major finding assessment indicate australian management arrangement fishery place allow achievement afma objective satisfy theepbc actguidelines area need built upon next five year within australian fishery identified following data collection monitoring strategy need progress relating collection independently verified data relating target bycatch specie allow environmentally responsible management arrangement place risk assessment implementation following completion risk assessment fishery action address issue concern need occur accountability afma committed number activity need thorough regular evaluation ensure objective measure identified amended southern bluefin tuna fishery management plan achieved active contribution strategic direction ccsbt current concern status sbt parental stock australia must continue play strong role future action commission ensure responsible management global fishery 43 observation relating two principle expressed executive summary guiding assessment although specifically directed statutory responsibility minister 303fn epbc act nevertheless address substance issue indeed nothing raised course proceeding suggest afma assessment deficient respect said observation quoted executive summary misstate conclusion expressed body report circumstance absent contradictory evidence would open tribunal accordance dictate 303fn 10a rely upon assessment providing proper basis conclude condition precedent making declaration 303fn 2 satisfied evidence44 dr polachek academic qualification zoology fishery ecology senior principal research scientist pelagic ecosystem sub program division marine research csiro marine atmospheric research curriculum vitae attests high standing field marine science engaged jointly party application provide report express opinion response question raised party response question posed extensive detailed 45 dr polachek clearly leading authority relation sbt procedure followed minister initially submit series question following applicant likewise dr polachek responded considerable detail series well supplementary question several request clarification response affidavit 26 august 2005 annex exhibit following document twp1 dr polachek curriculum vitae twp2 minister question 18 july 2005 twp3 applicant question 28 july 2005 twp4 email correspondence clarification minister assumption definition ecological sustainability 28 july 2005 24 august 2005 twp5 bundle correspondence raising supplementary question twp6 response minister question including supplementary question twp7 response applicant question twp8 list acronym used twp9 list literature cited reports46 apart written testimony dr polachek gave oral evidence 27 28 september 2005 exhaustively cross examined counsel party transcript evidence occupies 113 page cross examination entirely helpful tribunal large extent witness asked make factual assumption asserted counsel express opinion basis assumption process whereby specific written question submitted responded writing provided much coherent body evidence 47 question 28 posed applicant dr polachek asked consider current management arrangement place australia effective ensuring wto detrimental survival sbt e wto detrimental conservation status sbt dr polachek answer question 28 e feel expertise answer two question economic sociological political expertise ass wto would affect level sbt caught method used capture australia internationally 48 applicant question 32 dr polachek please also refer paragraph 44 minister statement reason minister state 44 satisfied fishery would likely threaten relevant ecosystem period december 2004 december 2007 b opinion enough information known ecosystem sbt part satisfied wto likely threaten dr polachek answer question 32 b feel expertise answer question economic sociological political expertise ass wto would affect level sbt caught method used capture australia internationally nevertheless response minister question provide information relevant first part question 49 letter bearing date 26 august 2005 obviously written well prior date applicant solicitor referred dr polachek draft response question put party sought clarification number matter including 4 page 23 response hsi question response question 29 sic e page 26 response question 33 sic b suggested expertise ass wto would affect level sbt caught apologise phrasing question caused confusion case confusion using acronym wto refer declaration wildlife trade operation minister subject proceeding allows export sbt caught australian sbt fishery allows australian tac continue 5 265 tonne next 3 year intend refer world trade organisation change answer question please provide new answer cause reluctance answer client question please let u know rephrase question 50 email sent 22 august 2005 dr polachek responded question referred preceding paragraph term confused wto acronym however impression wto declaration deal allowing exportation sbt neither required fishery continue would determine future australian tacs word without wto declaration minister tacs could adjusted upwards downward sbt allowed exported would clearly large impact economics current sbt fishery however clear would translate change catch level within australia addition even lack wto approval restrict australia catch clear might affect happens catch outside australia e g role would australia continue play ccsbt context able ass predict lack wto approval may affect future catch level felt appropriate expertise clarify whether direct link wto australian tac case rephrasing question could please indicate assumption made non australian catch 51 dr polachek answer part b c applicant question 28 also quite enlightening question opinion sought whether considered current arrangement place australia effective ensure sbt protected b sbt fishery managed ecologically suitable way c precautionary principle taken account afma setting annual catch fishery response given would possible whatever management arrangement within australia would sufficient ensure sbt protected given widespread distribution fishery harvest b response c privy discussion undertaken afma board deliberation annual sbt catch limit however uncertainty appear reason underlying decision made reason given set catch level similarly uncertainty substantive reason underlying advice provided sbtmac respect setting annual catch limit response provided relation question 28 c indicates precautionary principle relevant context matter review one thing emerge evidence absolute answer question raised 303fn epbc act even experienced scientist talk term probability based upon uncertain factual data indeed one stage dr polachek answer question rhetorically posed question count fish sea 52 dr findlay currently senior research scientist acting program leader fishery marine science service program bureau rural science agency within commonwealth department agriculture fishery fauna daff academic qualification marine biology zoology aquaculture previously worked fishery manager afma assistant director international relation fishery aquaculture branch daff primary responsibility afma management eastern tuna billfish fishery sbt taken incidental catch whilst international relation section fishery aquaculture branch worked predominantly sbt policy since joining daff 1998 attended meeting ccsbt since 2002 attended meeting ccsbt stock assessment committee scientific committee 53 dr findlay affidavit dated 26 august 2005 cover broad spectrum issue concerning particular status stock sbt risk associated operation global sbt fishery dealing risk biological extinction detriment conservation status dr findlay say paragraph 29 30 affidavit 29 recent catch level preventing rebuilding stock also considerable evidence suggest recent catch level directly result rapid decline population however low level spawning stock biomass sbt population le resilient unfavourable oceanographic condition event recruitment failure e sustained period markedly lower recruitment may occur resulting decline stock difficult predict likelihood impact unfavourable oceanographic condition 30 sbt stock level well internationally accepted standard biological safety fishery sustainability need remembered even stock current low level remain million fish sbt population across full range age class risk biological extinction extremely low opinion sbt cannot considered threatened specie basis paragraph 33 expressed view likelihood detriment conservation status specie term 33 however considering whether australian sbt fishery detrimental conservation status specie key question whether continuing australian sbt fishery result decline stock past ten year spawning stock stable average annual global catch order 15 760 suggests removal approximately equal surplus yield stock surplus yield productivity stock replacement stock produced current stock level well excess could considered constitute significant extinction risk continuation current fishing including australia unlikely result rapid decline stock level view subject comment made paragraph 29 continuation australia fishery likely detrimental conservation status specie 54 another important aspect dr findlay affidavit evidence concern impact australian sbt fishery ecosystem paragraph 42 45 48 affidavit subject dealt follows 42 contrast prawn fishery use trawl net towed behind vessel catch fish method used catch sbt principally purse seining pelagic long lining involve negligible impact physical habitat 43 harvesting fish necessarily alters ecosystem live amount alteration ecosystem dependent amount fish harvested case sbt population reduction comparison unfished level around 1952 data started collected sbt order 90 hence obviously potential significant change ecosystem however quantitative assessment marine ecosystem change new area science stage impossible quantify impact australian global sbt fishery ecosystem 44 concern impact fishing sbt specie including threatened endangered protected specie shark seabird e g albatross however vast majority fishing within australian sbt fishery done purse seining selective form fishing fisher logbook data collected independent observer board purse seine vessel suggest little bycatch taken purse seine operation interaction threatened endangered protected specie rare 45 contrast long lining much smaller sector within australian fishery relatively non selective passive form fishing interacts wide range specie including shark seabird considerable amount overlap preferred water sbt threatened specie seabird albatross 48 summary doubt australian global sbt fishery altered food web removal sbt however key question whether australian sbt fishery threatens ecosystem little information available upon ass food web impact either australian global fishery sbt therefore cannot draw conclusion far concerned however clear operation australian sbt fishery cause little damage physical habitat although concern bycatch particularly associated long lining undertaken relatively small sector australian fishery 55 mr hurry academic qualification aquaculture presently hold position general manager fishery aquaculture commonwealth daff extensive experience field aquaculture fishery particularly relation various international organisation particular relevance fact since 2001 australian commissioner ccsbt 56 hurry prepared affidavit dated 26 august 2005 mr hurry evidence deal detail australia involvement ccsbt associated committee particular emphasis leading role australia taken international management global sbt fishery considerable concern suggestion australia reduce catch sbt zero assumption would thereby effectively contribute stock recovery approach witness favour view expressed paragraph 82 affidavit pragmatic effective approach australia continue take sbt responsible manner continue argue responsible global management sbt explains position paragraph 83 85 thus 83 reason follows australia currently strong reputation balanced voice commission however cease taking sbt current circumstance country likely continue taking sbt likely political consequence would include significant weakening position lead player commission result diminishing commission effectiveness overall australia longer position take leadership role commission particularly arguing responsible management sbt view none member would presently able step role 85 based involvement commission regional fishery management organisation consider possible closing australian fishery would lead member ccsbt perceive change australia focus responsible fishery management balanced conservation sbt conservation view may discourage member country take sbt engaging australia potentially commission would perceive focussed stopping rather managing fishing 57 mr mcnee currently assistant secretary marine environment branch commonwealth department environment heritage position held since 18 july 2005 prior since august 2000 senior manager tuna billfish fishery afma primary duty involved provision high level advice afma senior management afma board daff commonwealth minister fishery forestry conservation management commonwealth tuna billfish fishery overall responsibility management inter alia sbt fishery 2002 heavily involved development afma assessment report submitted september 2002 development comprehensive amendment sbt fishery management plan 1995 prepared affidavit dated 20 august 2005 58 mr mcnee evidence deal role afma responsibility sbt fishery management plan canvass prospect afma setting lower national catch allocation determined ccsbt say paragraph 109 111 affidavit 109 fm act sbtf management plant afma power set lower national catch allocation determined ccsbt however fm act sbtf management plan articulate central role ccsbt importance giving effect australia obligation international agreement including implementing ccsbt decision australia member ccsbt participate effective global management global stock therefore afma perceives part role implementing decision ccsbt rapidly efficiently possible done date 110 test afma always whether taking approach maintaining status quo adopting ccsbt set national catch allocation consistent objective fm act sbtf management plan view consistent clearly seen relation clause 5a requires implementation international obligation clause 4a requires management consistent principle ecologically sustainable development precautionary principle signing convention recognises sbt global stock taken many country similar objective fm act australia recognised ccsbt pivotal achieving recovery stock meeting afma legislative objective managing australian sbt fishery word afma fulfil objective long term supporting australia active participation forum 111 taking alternative approach afma considered set lower national catch allocation taken ccsbt voluntarily agreed australian government consider would lower pressure momentum member ccsbt implementing cohesive recovery strategy several reason conclusions59 highly technical nature evidence written oral tribunal demonstrated legislative policy behind provision 303fn 10a well justified obvious minister first instance review tribunal required embark upon decision making process field endeavour highly specialised equally highly uncertain evidence opinion skilled scientist others intimately involved particular field critical decision minister tribunal required make tribunal process provided opportunity consider outcome expressed afma strategic assessment appropriate intention 303fn 10a given effect tribunal rely primarily outcome assessment 60 regard outcome afma assessment matter raised course hearing application tribunal satisfied matter referred 303fn 3 epbc act regard matter referred 303fn 4 tribunal view minister decision declaring fishing operation sbt fishery approved wildlife trade operation pursuant 303fn act affirmed certify 60 preceding paragraph true copy reason decision herein ofsigned miss sacha keadyassociatedate hearing 23 26 29 september 2005 11 november 2005date decision 3 april 2006counsel applicant mr p larkinmr j johnsonsolicitor applicant environmental defender officecounsel respondent mr p hank qcms j jagotsolicitor respondent australian government solicitor

Bjelivuk, Re [2004] QLRT 41 (14 May 2004).txt

bjelivuk 2004 qlrt 41 14 may 2004 last updated 9 september 2005land resource tribunalqueenslandcitation bjelivuk 2004 qlrt 41parties matter application mining lease 95409 milo bjelivukfile aml00062 2004proceeding application mining leasedelivered 14 may 2004delivered brisbanehearing date heard paperspresiding member smith dporder 1 hearing dispensed 4 2 event inspection report prepared pursuant winton ilua contains reference exclusion zone recommendation site protection measure recommend honourable minister natural resource mine energy exclusion zone recommendation included special condition grant 8 3 subject order 2 recommend honourable minister natural resource mine energy mining lease 95409 granted entire application area purpose mining opal term 10 year 32 catchword mining mining lease native title indigenous land use agreement ilua recommendationmineral resource act1989

Lawrence & Dehn (No 2) [2014] FamCA 642 (1 August 2014).txt

lawrence dehn 2 2014 famca 642 1 august 2014 last updated 6 march 2015family court australialawrence dehn 2 2014 famca 642family law procedural whether father permitted reopen contravention proceeding respect adducing evidence reasonable excuse court found contravention evidence reasonable excuse contravention application heard undefended basis father failed attend application dismissedapplicant m lawrencerespondent mr dehnfile number pac4894of2008date delivered 1 august 2014place delivered parramattaplace heard parramattajudgment hannam jhearing date 1 august 2014representationcounsel applicant mr samsonsolicitor applicant smythe wozniak legalcounsel respondent m messnersolicitor respondent eddy neumann lawyersorders 1 matter adjourned to12 august 2014 10 00amfor interim hearing balance mother contravention application future conduct contravention notedthat publication judgment court pseudonymlawrence dehnhas approved chief justice pursuant tos 121 9 g thefamily law act 1975 cth family court australia parramattafile number pac 4894 2008ms lawrenceapplicantandmr dehnrespondentreasons judgmentthis application respondent father contravention application permitted adduce evidence reasonable excuse contravening order application relation contravention primary order dealt 11 july 2014 absence respondent father judgment delivered date respondent father press application earlier foreshadowed finding primary order contravened set aside basis afforded procedural fairness aware proceeding determined day however case court effect nothing find contravention proved day issue reasonable excuse properly considered court day wish issue determined today applicant mother opposes application say effect whole contravention proceeding issue remedy dealt day issue whether order contravened whether reasonable excuse contravening order clear scheme act court consider issue whether reasonable excuse contravening order finding made order contravened act make clear court may find order contravened contravened reasonable excuse contravened reasonable excuse court satisfied 11 july 2014 father served matter dealt absence issue contested father scheme act make clear application dealt indeed dealt purpose court considered whether contravention occurred whether reasonable excuse final paragraph judgment given day 11 july 2014 make clear turn mind whether order contravened whether reasonable excuse proffered respondent father noted evidence relation issue reasonable excuse view authority dealing issue procedural fairness make clear necessary person notified aware matter alleged person also provided opportunity respond allegation father chose attend day accepting content matter alleged heard absence also nothing say response indicated interchange counsel bench need considering issue reasonable excuse evidence court able determine whether reasonable excuse made word person asserting reasonable excuse evidentiary onus initially discharge evidence date considered determined matter view open father effect reopen proceeding issue reasonable excuse dealt today accordingly matter need deal issue balance application made mother upon contravention proved well future conduct contravention certify preceding eleven 11 paragraph true copy reason judgment honourable justice hannam delivered 1 august 2014 legal associate date 8 august 2014

THE STATE OF WESTERN AUSTRALIA -v- BYRNES [2022] WADC 104 (28 November 2022).txt

state western australia v byrnes 2022 wadc 104 28 november 2022 last updated 2 december 2022jurisdiction district court western australiain criminallocation perthcitation state western australia v byrnes 2022 wadc 104coram russell dcjheard 4 5 october 2022delivered 28 november 2022file ind 2169 2020between state western australiaandbrock richard byrnesandjanelle marie augimerisentencing trial issue deprivation liberty whether aggravating circumstance whether weapon used offence duration deprivation liberty turn factslegislation nilresult state succeeded proving issue dispute aggravating circumstancerepresentation counsel state western australia mr e mcclintockfirst named accused mr p dixonsecond named accused m k e turtley chappelsolicitors state western australia state director public prosecutionsfirst named accused paul dixon barrister solicitorsecond named accused legal pathwayscase referred decision law v state western australia 2009 wasca 193r v lobban 2001 sasc 392 2001 80 sasr 550r v olbrich 1999 199 clr 270russell dcj introductionbrock richard byrnes janelle marie augimeri charged together rebecca pamela tuffin co offender ind 2169 2020 27 march 2020 northbridge count 1 unlawfully detained kimberley brooke anderson contrary 333 thecriminal code b count 2 stole kimberley brooke anderson suitcase property kimberley brooke anderson contrary 378 thecriminal code mr byrnes entered plea guilty charge indictment 16 may 2022 m augimeri entered plea guilty charge indictment 17 may 2022 m tuffin also convicted offence may 2022 entered plea guilty stealing offence count 2 first day trial 19 may 2022 m tuffin pleaded guilty deprivation liberty charge count 1 convicted offence 25 may 2022 trial jury honour judge petrusa trial judge disputed issue fact purpose sentence relation mr byrnes m augimeri matter listed trial issue heard trial issue 4 5 october 2022 reason follow fact find purpose sentence relation disputed issue fact axe produced mr byrnes within minute m augimeri first arriving apartment 7 47 pm 27 march 2020 remained present shortly m tuffin first arrived apartment 8 27 pm period one hour duration m anderson deprivation liberty least five hour time m augimeri first arrived apartment 7 47 pm 27 march 2020 least time mr byrnes m augimeri last left apartment 12 58 28 march 2020 fact relied upon statethe fact relied upon state set amended statement material fact dated 28 september 2022 read counsel state trial issue incorporate fact reason without repeating full fact set amended statement material fact largely accepted mr byrnes m augimeri factual issue dispute purpose sentence set following section reason mr byrnes accepts respect count 1 offence deprivation liberty principal offender conduct action included striking m anderson conduct action would communicated m anderson free leave apartment period time respect liability stealing offence count 2 basis upon mr byrnes entered plea 7c thecriminal code presence detention m anderson would aided m tuffin steal m anderson property m augimeri entered plea relation count 1 2 basis criminally liable offending 7c thecriminal codeby aiding mr byrnes relation deprivation liberty count 1 aiding m tuffin offence stealing m anderson property count 2 state take issue basis mr byrnes m augimeri criminal liability stated disputed issue factmr byrnes m augimeri plea guilty necessarily involve admission element offence subject charge end trial issue issue fact remained dispute bear sentence determined whether axe produced present m anderson detention find axe present long duration m anderson deprivation liberty counsel state conceded evidence adduced trial issue state could maintain axe remained threat throughout period m anderson detention asserted amended statement material fact rather state contended axe produced shortly m augimeri arrived apartment remained present shortly m tuffin arrived state submitted based m anderson evidence time recorded cctv footage axe produced mr byrnes shortly m augimeri arrived apartment 7 47 pm remained present shortly m tuffin arrived apartment 8 30 pm state accepted would later 9 00 pm state contends offence count 1 deprivation liberty commenced shortly m augimeri arrived apartment 7 47 pm 27 march 2020 continued mr byrnes m augimeri left apartment approximately 12 58 28 march 2020 principle applicable trial issuesthe principle relating basis upon sentencing judge must impose sentence offender pleads guilty set court appeal inlaw v state western australia 2009 wasca 193 26 34 principle include following held inr v olbrich 1999 199 clr 270 25 prosecution seek sentencing judge take matter account aggravating circumstance prosecution bring matter judge attention necessary call evidence prosecution must prove aggravating circumstance beyond reasonable doubt offender seek sentencing judge take matter account mitigating circumstance offender bring matter judge attention necessary call evidence offender must prove mitigating circumstance balance probability necessary prosecution offender call evidence aggravating mitigating circumstance case may asserted matter controverted party sentencing judge prepared act assertion even though controverted party sentencing judge persuaded existence particular fact absence fact prove converse fact adverse favour offender case may sentencing judge persuaded existence fact fact exist purpose sentencing r v lobban 2001 sasc 392 2001 80 sasr 550 relevantly trial issue state seek prove aggravating circumstance axe produced present m anderson detention noted state contends axe present shortly 7 47 pm remained present shortly 8 30 pm state accepted would later 9 00 pm factual issue resolved duration m anderson deprivation liberty state accepts bear onus proving disputed fact beyond reasonable doubt evidenceevidence relied upon statethe state tendered relied content state brief brief incorporated amended statement material fact read beginning trial issue state also played tendered disc containing cctv footage apartment newcastle street northbridge m anderson detained exhibit 1 edited video record interview mr byrnes conducted 27 april 2020 exhibit 2 relation cctv footage state referred cctv timeline included brief page 39 relied aid time mr byrnes m augimeri m tuffin m anderson others depicted cctv footage arriving leaving m anderson apartment 27 28 march 2020 though neither defence counsel took issue time stated cctv timeline referred aid directed cctv footage evidence stated timeline state adduced oral evidence victim kimberley brooke anderson refer detail counsel state drew attention uncertainty relation certain item including described tomahawk located search m tuffin car time arrest state referred recording search m tuffin car photograph brief page 54 56 57 property receipt log brief page 51 52 property receipt log page 52 refers item 7 described new zealand passport name kimberley anderson item 10 described tomahawk sheath recorded located item 11 pink guess suitcase counsel state read part evidence given detective michael valastro trial m tuffin relation search agreement defence counsel set evidence reason evidence read appears page 629 631 transcript trial issue copy extract transcript trial m tuffin marked identification mfi trial issue detective valastro investigating officer conducted search m tuffin car two suitcase located pink guess suitcase black suitcase state confirmed evidence equivocal whether item referred detective valastro evidence located inside pink suitcase open black suitcase rear m tuffin car pictured brief page 56 57 58 state submit item located inside pink suitcase evidence kimberley brooke andersoni repeat m anderson evidence relevantly evidence event 27 28 march 2020 matter issue follows m anderson 34 year old march 2020 31 year old worked escort sex worker usually received booking text email met client purpose carrying booking short term accommodation worked near city march 2020 m anderson perth long two three month came know worked rebecca tuffin described also escort sex worker said m tuffin hired car could work bunbury together day 27 march 2020 m anderson returned bunbury arranged meet m tuffin return car m tuffin could return hire company m tuffin turn car towed adelaide terrace outside ibis hotel m anderson said found towing company towed car paid released got hire car back towing company possession another day went missing called towing company check towed said know stage happened car friday 27 march 2020 received enquiry text message new prospective client referred greg made arrangement meet greg apartment using work newcastle street northbridge initially met late morning inside apartment half hour discussion said enough money go booking left man identified greg contacted m anderson text message later day saying friend wanted refer make booking sexual encounter man referred greg came back see m anderson friend sometime afternoon 27 march 2020 m anderson could remember man name said met two men downstairs took apartment met either men day said man seemed nervous long two men apartment man said forgotten wallet left apartment leaving m anderson alone apartment man knew greg later identified man called greg brock mr byrnes 10 minute man came back girl m anderson later identified janelle m augimeri m anderson said realised something wrong expecting girl m augimeri coming apartment mention made coming m anderson asked said thing started get frantic said started wonder happening feel safe m anderson could remember exact word spoken said accusation coming mr byrnes m augimeri question barked car said female m augimeri said car said think m tuffin name mentioned put together asking hire car m tuffin hired asked would describe atmosphere apartment female entered m anderson said felt volatile loud said tried use phone call notify person alert someone said friend came mr byrnes freaked saying called police m anderson initially said thought man left point later evidence said axe ax brought said know call made man know mr byrnes told sit shut hit face initially said hit face fist said struggling order event axe said two ax black bag asked hit said mouth like back hand axe hand axe hand gestured show rear hand knuckle wrist connecting mouth know hand axe said hand struck asked part axe made contact m anderson said sure maybe handle felt like back hand sharp part axe asked describe axe said like household gardening axe roughly 30 cm length wooden handle said thought may red sharp part middle head 100 sure asked saw red said shaft asked back handle said metal said point first observed axe anxious scared frantic asked said two ax said think yes asked said think friend male think got one m anderson asked long seeing axe first time mr byrnes struck said long maybe couple minute asked long time female entered apartment first saw axe m anderson said thought shortly arrived said time mr byrnes axe struck think said sit shut hit shocked sit shut said man left shortly m augimeri arrived ax came thing escalated could remember exactly thought man said something like called cop left said either mr byrnes m augimeri told wipe phone took said phone wiped could remember made heard mr byrnes m augimeri speaking saying something like far away bec said m tuffin arrived shortly within hour hour m anderson first saw axe time mr byrnes m augimeri asked car said told towed getting gone know happened said got key show key car missing said mr byrnes m augimeri let m tuffin apartment m tuffin arrived mood hostile m tuffin yelled angrily m anderson asked axe whether saw hour m tuffin arrived m anderson said think mr byrnes still hand time point either m tuffin arrived shortly recall seeing asked saw axe m tuffin apartment m anderson said remember later evidence said believed mr byrnes still axe hand small amount time m tuffin arrived see axe m tuffin left apartment m anderson also gave evidence m tuffin going thing showing item mr byrnes m augimeri m anderson shown photograph page 18 19 20 brief described showing damage cushion arm sofa blind said m tuffin caused damage slashing thing knife said mr byrnes m augimeri present m tuffin damage m anderson described apartment said big apartment small dining table one couch maybe 4 metre long said inside entrance way lounge see kitchen dining table said one open area big could remember exact word mr byrnes m augimeri m tuffin spoke m anderson owing debt m tuffin car m anderson working mr byrnes m augimeri supervision pay said could remember seeing axe discussion happening could remember saw m tuffin going possession m anderson said sitting floor lounge m tuffin came punched kicked m anderson put hand head protect face head said m tuffin throwing punch felt like kick well dug fingernail back m anderson head said mr byrnes defused situation told m tuffin stop told enough something along line m tuffin backed m anderson said m tuffin mentioned wanting cut m anderson face burn hair mr byrnes said something like work able work state something along line m tuffin calmed stopped m anderson said happening m augimeri lounge watching m anderson said m tuffin apartment couple hour assault m anderson closer arriving leaving m tuffin left apartment took m anderson suitcase put m anderson possession left cross examination m anderson identified pink suitcase m tuffin car photograph brief page 54 m tuffin left mr byrnes m augimeri stayed apartment least two three hour longer said m tuffin left heard discussion m tuffin mr byrnes m augimeri someone coming apartment could leave person would stay watch said m tuffin left another man seen arrived apartment mr byrnes m augimeri left apartment left m anderson man said understood supervise make sure leave coming back morning mr byrnes m augimeri left mr byrnes asked m anderson go went apartment said gave small amount money think 50 60 100 cannot remember said something like show good time referring man arrived understood mean sex booking sexual encounter alone apartment man spoke little bit sex sexual assault said earned trust believed best way get time man left apartment go service station get drink nothing drink apartment left apartment grabbed thing left m anderson identified people depicted still cctv footage mr byrnes image brief page 25 b brief page 26 c m augimeri brief page 27 mr byrnes brief page 29 e man initially came apartment mr byrnes brief page 30 f m tuffin brief page 31 g m anderson mr byrnes brief page 32 h man came later evening left go service station brief page 33 cross examination counsel mr byrnes m anderson asked drug use around period 27 march 2020 said around time used methylamphetamine ghb alcohol said ghb anti anxiety would induce appetite level effect methylamphetamine said make drowsy used miniscule amount described methylamphetamine upper keep awake suppresses appetite accepted use lot methylamphetamine eating sleeping distort thinking pattern said specific memory drug use 27 march 2020 suggested m anderson inconsistency evidence axe event surrounding suggested evidence m tuffin trial may 2022 used phone second man noticed freaked said calling police think using phone took pretty quickly agreed evidence may 2022 m tuffin trial order event gave became frantic loud screamed saw ax got hit said could trust recollection may 2022 much could statement closer event said struggling exact sequence thing became distressed said best try recall denied frantic thought distorted using drug said environment danger m anderson challenged tried call person rather police said thought quickest thing dial last number recent call person pizza knew location trying low key accepted gave statement police march 2020 said mr byrnes axe mention two ax also accepted evidence may 2022 m tuffin trial asked saw second axe said thought saw two ax know movement second axe said know mr byrnes second axe hand guy took put m anderson evidence trial issue said second axe think male think one said could got wrong said know least one suggested m anderson memory axe faulty memory axe ax day m anderson said believe true said believe immediate danger saw weapon axe came said axe came realised discussion option said axe would felt escalation danger said know presence one axe accurate second clear later evidence said believed wrong second axe asked conversation mr byrnes night said could remember exact word said would remind said statement struggling even putting back traumatic event trying help get clarity feel bit confused cross examination counsel m augimeri m anderson agreed made two statement police one 29 30 march 2020 another one may 2022 said information statement gave police march 2020 much accurate memory said would rely said march 2020 statement particular sequence accurate timeline asked struck face mr byrnes shortly m augimeri arrived m anderson said know least one axe agreed earlier evidence axe mr byrnes holding wooden handle asked describe axe said similar see bunnings ad said looked new appeared normal household axe asked owned axe time protection said asked m tuffin axe ever saw m tuffin axe belonging m anderson said suggested m anderson mr byrnes never axe hand time m anderson said part clearly remembers hit hit holding axe said know fact happened untrue saying asked could mistaken holding anything m anderson responded believe definitely axe time m augimeri arrived m tuffin arrived apartment m anderson agreed hour examination m anderson said least one axe apartment night m augimeri arrived apartment asked axe said mr byrnes mr byrnes video record interviewin edited video record interview mr byrnes conducted 27 april 2020 mr byrnes asked event subject charge subsequently brought video record interview mr byrnes edited agreement state mr byrnes direct editing electronic record interview routine procedure court must draw adverse inference use routine procedure also direct mr byrnes said interview part evidence consider case nothing said interview used m augimeri repeat everything said mr byrnes video record interview summary evidence happened m anderson apartment relation text message sent received 27 march 2020 follows mr byrnes said went meet m anderson basically score asked got hold m anderson number mr byrnes said dave sommerville said got number day get gear possibly get root couple mate said initially met m anderson 3 00 pm 27 march 2020 went back 7 00 pm mate wanted consider getting said mate sex m anderson money said chipped second one later evening mr byrnes said m anderson said bring partner m augimeri apartment said drama getting along said effect m tuffin came got awkward m tuffin m anderson arguing vehicle mr byrnes asked m tuffin knew come came apartment whether contacted m tuffin mr byrnes said m tuffin rang m anderson asked argument m anderson m tuffin mr byrnes said pretty hectic violence next bar m tuffin smacked m anderson around time said aggressive hit hair grabbing knee head couple punch m tuffin m anderson said trying split trying protect m anderson asked happened mr byrnes said also m augimeri m tuffin m anderson said two boy rocked later asked shown message phone m tuffin m augimeri said message said hacked message involved evidence relied upon mr byrnesmr byrnes gave evidence behalf trial issue also called nathan brent robson give oral evidence mr robson gave evidence video link direct routine procedure court must draw adverse inference mr byrnes m augimeri evidence brock richard byrnesi repeat mr byrnes evidence relevantly evidence event 27 28 march 2020 matter issue follows day 27 march 2020 mr byrnes spoken m tuffin worked security m tuffin told car said calling m anderson answering phone mr byrnes volunteered find whether m anderson car m tuffin gave m anderson phone number later day 27 march 2020 mr byrnes contacted m anderson arranged meet said picked east perth drove apartment newcastle street northbridge went found car made excuse relationship getting cold foot left apartment told m tuffin car asked go back find contacted m anderson later 27 march 2020 saying friend wanted refer make booking said m anderson agreed picked friend nathan robson mr robson went m anderson apartment newcastle street said m anderson met came side door three went upstairs apartment mr robson said left wallet car left came back apartment m augimeri mr byrnes said m anderson startled m augimeri came said soon m augimeri came started asking m anderson car said look hire car gone missing last possession need get back get resolved bec obviously concerned said started get heated immediately m augimeri said voice went pacing around unit stating wanted car back going look kim want car back said m anderson started yelling concerned neighbour would hear yelling said nathan said used phone call text someone mr byrnes said walked m anderson said calmly yelling fuck text struck face said sitting next couch said got show texted backhander motioned swinging right arm outwards explained sitting next left right hand went bang hit indicating back hand near wrist made contact mr byrnes asked anything hand said asked axe said said see anyone axe occasion asked friend nathan axe said mr byrnes asked axe black laptop bag said asked happened given m anderson backhander said well fear could sense obvious reason know hit became compliant straight away said messaging m tuffin asking wanted constant communication m tuffin apartment said wait m tuffin finish client come apartment said waited probably 90 minute time said m anderson compliant sitting couch sort interrogating done car would tell anything say anything going car mr byrnes said m tuffin arrived atmosphere changed said m tuffin came going could see demeanour angry m anderson m anderson sitting ground sitting front m tuffin came behind m anderson think m tuffin grabbed m anderson hair dropping knee punch mr byrnes physically jump told m tuffin calm said look going get car back m tuffin stopped assaulting m anderson mr byrnes said m tuffin went bedroom saying looking key stuff missing came bedroom main open kitchen lounge area luggage m tuffin left apartment luggage mr byrnes asked suggestion m augimeri arranged someone come apartment watch m anderson night said purpose arranged friend come said m anderson could raise money try work towards getting car back bad night get started line work mr byrnes said m augimeri left apartment gave m anderson 150 felt sorry said friend got full amount mr byrnes took m anderson car parked street newcastle street said m anderson look friend might want see tonight got money rest fee mr byrnes m augimeri left apartment leaving friend m anderson mr byrnes asked telling police complete truth interview 27 april 2020 said asked lying mr byrnes said said message m tuffin would catch blacken eye said said appease m tuffin gave work wanted continue relationship m augimeri income asked told lie interview said trying deceitful culpable charge pleaded guilty accepted person described cctv footage played footage recorded mr byrnes arriving apartment m anderson 2 37 pm b mr byrnes leaving via lift 2 46 pm c mr byrnes returning apartment m augimeri 2 55 pm going apartment m augimeri remained hallway mr byrnes m anderson mr robson exiting lift walking apartment 7 31 pm e man wearing black hoodie identified mr robson getting lift 7 36 pm f mr robson returning apartment m augimeri 7 47 pm g mr robson leaving apartment 7 58 pm h mr byrnes leaving via lift phone held ear 8 25 pm returning m tuffin 8 27 pm mr byrnes said m tuffin called walked swipe card let apartment mr byrnes leaving via lift 9 02 pm returning 9 12 pm said went look food get j mr byrnes leaving apartment m tuffin 11 27 pm m tuffin pulling suitcase k mr byrnes returning 11 30 pm man black hat identified friend came see m anderson l mr byrnes leaving apartment m augimeri 11 39 pm mr byrnes returning apartment 12 18 n mr byrnes leaving apartment 12 24 returning 12 32 mr byrnes leaving 12 34 returning minute later m augimeri could recall p mr byrnes leaving apartment m anderson 12 50 returning 12 54 mr byrnes said took m anderson car gave 150 friend enough money book m anderson q mr byrnes m augimeri leaving apartment 12 58 said left night return left friend m anderson apartment cross examination counsel m augimeri mr byrnes said worked security escort sex worker 20 year said come across sex worker carried weapon protect worked m tuffin four month every night worked asked ever seen m tuffin possession axe said could say mr byrnes agreed thing escalated quite quickly m augimeri arrived apartment newcastle street 27 march 2020 cross examination counsel state mr byrnes asked interview police agreed lied police purpose visit m anderson afternoon 27 march 2020 wanted distance knew done wanted avoid consequence would follow also agreed went meet m anderson afternoon use name said used alias accepted conceal m anderson actually mr byrnes agreed spoke police giving impression first time became aware vehicle issue inside apartment said police m anderson stole m tuffin car hired suggested attempt deflect involvement mr byrnes replied yeah absolutely accept lured m anderson trap accepted told police interview got m anderson number dave sommerville another lie deflect done said yes course also accepted giving lie deflecting also trying add bit flesh bone story looked even better said well making fly mr byrnes accepted influence methylamphetamine behaving erratically day referred cctv footage boxing shadow put fact explicit plan would go apartment detain hold m anderson pending m tuffin arrival said yes true yes said detained pleaded guilty mr byrnes shown message brief page 63 mr byrnes accepted message m tuffin said 7 06 pm hold accepted roughly 30 minute went apartment went apartment specific plan hold m anderson m tuffin arrived said plan hold m anderson information shared mr robson m augimeri went apartment agreed m augimeri arrived apartment thing escalated appeared m anderson became concerned tried use phone concerned thought might getting someone come assist struck accepted word action conveyed intimidation m anderson mr byrnes denied produced axe agreed hold apartment intimidation said yes sure axe axe people need axe said made compliant without axe enough commotion going guy know asking car suggested mr byrnes arranged man black hat came apartment m tuffin left essentially babysit m anderson night mr byrnes said m anderson job babysit bad job suggested mr byrnes seen coming going apartment night 1 00 taken key apartment left mr byrnes said key said recall key mr byrnes shown text message brief page 90 99 accepted lied police interview claimed author message fact evidence nathan brent robsoni repeat mr robson evidence relevantly evidence matter issue follows mr robson said known mr byrnes 20 year 27 march 2020 mr robson went mr byrnes block flat unit northbridge asked reason going mr robson said went collect car got lady take reference m anderson let went upstairs said got upstairs argument broke lady mr byrnes car mr robson said saw mr byrnes punch lady mr robson left asked left mr robson said thought going pick car know going happen mr robson asked saw ax day said asked saw mr byrnes axe mr robson said mr robson asked axe saw axe stage day said asked saw anything mr byrnes hand apartment flat unit said probably phone think asked saw anything else mr byrnes hand mr robson said could recall cross examination counsel m augimeri mr robson asked whether saw weapon day said none cross examination counsel state mr robson asked anybody else apartment mr byrnes lady said mr byrnes wife girlfriend asked got apartment mr robson said went get m augimeri went back lady buzzed said saw mr byrnes hit lady conversation car said left understanding pick car mr byrnes punch woman mouth asked point woman apartment appeared using phone said saw m augimerims augimeri give adduce call evidence obliged draw adverse inference election assessment evidence finding fact disputed issuesi directed accept part witness evidence reject part also directed matter may affect assessment witness evidence witness may honest mistaken may remember every detail matter given evidence circumstance time time passed event gave evidence gave evidence mistaken witness may convincing witness axe produced present reason follow satisfied beyond reasonable doubt find axe produced present part period time m anderson deprived liberty m anderson evidencems anderson answered question asked openly could certain something said evasive frank candid including personal matter work drug use accepted may mistaken thing one thing whether one axe two saying two ax said think got wrong accept evidence m augimeri entered apartment unexpectedly confronted mr byrnes m augimeri car environment circumstance volatile frantic anxious scared traumatic experience also inconsistency relation description axe however consistently described looking new appeared normal household axe though inconsistency m anderson said statement police march 2020 day following event subsequently including evidence trial m tuffin trial issue inconsistency cause doubt m anderson credibility generally find honest witness best remember detail traumatic frightening experience happened two year gave evidence surprising evidence may confused struggled recall detail sequence event circumstance given passage time m anderson clear evidence least one axe asked struck face mr byrnes shortly m augimeri arrived said know least one axe suggested memory axe faulty memory axe ax day m anderson accept said know presence one axe accurate second clear believe immediate danger axe came axe came realised discussing option said axe would felt escalation danger suggested m anderson mr byrnes axe hand time m anderson emphatic part clearly remembers hit hit mr byrnes holding axe said knew fact happened mistaken believed definitely holding axe neither mr byrnes m augimeri prove anything state prove disputed issue fact beyond reasonable doubt however find m anderson thought distorted using drug suggested counsel mr byrnes clear evidence accept submission made behalf m augimeri effect m anderson told police axe axe fact belonged m anderson seeking deflect asked axe used one protection m anderson clear evidence find plausible circumstance considering evidence whole m anderson would made story mr byrnes axe spoke police 29 march 2022 submitted m anderson evidence effect mr byrnes axe hand hit without contact axe implausible reject submission regard way m anderson described blow mr byrnes hand holding axe size axe follow axe must come contact m anderson mr byrnes evidencei accept mr byrnes truthful witness put evidence effect axe one side demonstrated prepared lie deflect minimise involvement avoid consequence action mr byrnes accepted evidence lied police purpose visit m anderson afternoon 27 march 2020 reason suggested giving police impression first time became aware issue car inside apartment accepted absolutely attempt deflect involvement played involvement interview police suggesting given m anderson number someone m tuffin knew nothing car inside apartment asked m tuffin came arrive apartment said spoken m anderson phone contacted m tuffin let know presented message sent received police interview adamant author said hacked regard mr byrnes admission prepared lie deflect minimise involvement evidence whole accept evidence axe prefer m anderson evidence mr robson evidencethough mr robson evidence effect see axe time apartment find evidence issue compelling prefer evidence m anderson presence axe long axe present reason follow satisfied beyond reasonable doubt find axe produced mr byrnes within minute m augimeri first arriving apartment 7 47 pm remained present shortly m tuffin first arrived apartment 8 27 pm find axe remained present period one hour accept m anderson evidence first saw axe couple minute mr byrnes struck find struck within minute m augimeri mr robson arriving apartment based cctv footage 7 47 pm accept m anderson evidence m augimeri arrived apartment mr byrnes m augimeri confronted hire car thing became volatile mr byrnes told m anderson sit shut struck face holding axe hand though difference m anderson evidence mr robson evidence left say left mr byrnes struck m anderson cctv record mr robson leaving 7 58 pm 11 minute m augimeri arrived apartment also accept m anderson evidence effect last time saw axe shortly m tuffin arrived apartment cctv footage record m tuffin first arriving apartment 8 27 pm m anderson evidence accept m tuffin arrived within hour first saw axe mr byrnes still axe hand small amount time m tuffin arrived see axe m tuffin left apartment long m anderson detained satisfied beyond reasonable doubt find duration m anderson deprivation liberty least five hour time m augimeri first arrived apartment 7 47 pm 27 march 2020 least time mr byrnes m augimeri last left apartment 12 58 28 march 2020 though period time mr byrnes m augimeri left apartment time satisfied m anderson evidence accept m anderson detained free leave apartment least 7 47 pm 27 march 2020 12 58 28 march 2020 cctv footage record mr byrnes m augimeri leaving apartment together last time m anderson 12 58 b man black hat remained m anderson leaving via lift 2 48 c m anderson hurrying emergency door rather via lift shortly 3 24 whilst consider likely m anderson feel free leave man left apartment go service station 2 48 satisfied beyond reasonable doubt conclusion finding fact issue determined trial issueshaving considered evidence adduced trial issue fact find disputed issue fact purpose sentence follows axe produced mr byrnes within minute m augimeri first arriving apartment 7 47 pm 27 march 2020 remained present shortly m tuffin first arrived apartment 8 27 pm period one hour duration m anderson deprivation liberty least five hour time m augimeri first arrived apartment 7 47 pm 27 march 2020 least time mr byrnes m augimeri last left apartment 12 58 28 march 2020 certify preceding paragraph comprise reason decision district court western australia ldbassociate judge russell28 november 2022

R v Bargenquast, Holmes & Davis [2005] QCA 476 (16 December 2005).txt

r v bargenquast holmes davis 2005 qca 476 16 december 2005 last updated 16 december 2005supreme court queenslandcitation r v bargenquast davis holmes 2005 qca 476parties rvbargenquast adam troy applicant rvdavis wade anthony applicant appellant rvholmes mark william applicant file ca 135 2005ca 153 2005ca 158 2005sc 369 2005division court appealproceeding sentence applicationappeal conviction sentenceoriginating court supreme court brisbanedelivered 16 december 2005delivered brisbanehearing date 23 november 2005judges de jersey cj mcpherson ja mackenzie jseparate reason judgment member court concurring order madeorder 1 application leave appeal sentence refused case2 appeal conviction ca 153 2005 dismissedcatchwords criminal law appeal new trial inquiry conviction appeal new trial appeal sentence appeal convicted person application reduce sentence refused applicant convicted trial six offence involving violence including manslaughter offence committed sustained pursuit deceased capture applicant aged 22 44 time offence trial judge could differentiate level involvement offence apart one applicant identified leader two applicant complained lack parity sentence co offender one applicant claimed played lesser part offence good work history supportive family good reference minor criminal history factor reflected sentence whether sentence manifestly excessivecriminal law appeal new trial inquiry conviction appeal new trial miscarriage justice general appellant convicted trial six offence involving violence including manslaughter appellant appealed three count appeal conviction one count argued basis insufficient satisfactory evidence upon jury could conclude appellant present scene time offence appeal conviction remaining two count argued basis quality evidence conviction unsafe unsatisfactory whether jury verdict unsafe unsatisfactoryr v duong others 2002 qca 151 ca no 336 338 343 344 2001 30 april 2002 consideredcounsel j rafter sc applicant ca 135 2005a kimmins applicant appellant ca 153 2005d j walsh applicant ca 158 2005m r byrne respondentsolicitors bernard bradley associate applicant ca 135 2005john mcdonald solicitor applicant appellant ca 153 2005aw bale son applicant ca 158 2005director public prosecution queensland respondent 1 de jersey cj advantage reading reason judgment mackenzie j agree order proposed honour reason 2 mcpherson ja agree mackenzie j reason given appeal davis conviction cannot succeed dismissed also agree application bargenquast davis holmes leave appeal sentence imposed must also fail together engaged protracted series violent offence took place several day culminated death one victim fortunate found guilty murder manslaughter nevertheless offence case resulted participation deliberate act violence aimed recovering small amount money one consequence simply culpable negligence inadvertence part 3 matter sentencing complains disproportion lack parity sentence imposed upon complaint wear thin account taken act carried extent individual participation conspiracy inflict violence relative age especially case holmes prior criminal history one may feel sympathy correct word davis young man previous good record work history family background became personally involved crime seems largely fortuitous involved took part fully others violent action led fatal event light jury verdict learned judge carefully analysed part applicant played commission offence honour assessment shown wrong made error exercising sentencing discretion possible view sentence excessive 4 application leave appeal sentence like appeal davis conviction dismissed 5 mackenzie j reason concerned appeal appellant davis conviction three count indictment application leave appeal sentence bargenquast davis holmes jon david farthing also tried jointly appealed appeal conviction bargenquast abandoned hearing convenience although strictly accurate case bargenquast holmes refer appellant overview 6 holmes given farthing 3 500 cash arrange purchase cannabis farthing gave money deceased kerrie edward palmer believed subsequently absconded money offence respect present proceeding concerned arise incident subsequent search location palmer resulted death 27 january 2003 deceased body found mudjimba indictment 7 count 1 alleged 10 january 2003 maroochydore bargenquast davis holmes farthing unlawfully assaulted mitarsha neill bodily harm whilst company armed offensive weapon known palmer believed may able give information whereabouts 8 count 2 alleged 27 january 2003 noosa head bargenquast davis holmes farthing unlawfully assaulted kylie ann soanes soanes occupant man named zambona house coral tree avenue noosa head searching deceased believed living house far premise involved count 3 4 count relates incident occurred intercepted assaulted another person desaubin involved part series incident went shop buy cigarette 9 count 3 charged 27 january 2003 noosa head bargenquast davis holmes farthing entered dwelling house one tamara jean freestone intent commit indictable offence breaking night time actual violence whilst armed dangerous weapon offensive instrument company count 4 alleged contemporaneously count 3 participant unlawfully assaulted geoffrey jappe bodily harm whilst company armed dangerous weapon offensive weapon soanes assaulted palmer seen near taxi jappe also taxi went freestone unit course event unit entered slicing screen door knife jappe cut hand face knife freestone attempted intervene slapped told sit 10 count 5 alleged 27 january 2003 noosa head bargenquast davis farthing holmes unlawfully deprived deceased personal liberty count arose capture deceased men seeking subsequent detention 11 count 6 alleged 27 january 2003 noosa head appellant farthing unlawfully assaulted deceased bodily harm whilst company armed dangerous weapon offensive weapon crown entered anolle prosequiin respect count commencement trial 12 count 7 alleges day unknown 26 january 2003 30 january 2003 sunshine coast appellant farthing murdered deceased verdict sentence 13 appellant farthing convicted count 1 5 7 alternative count open indictment notably acquitted murder convicted manslaughter count 7 verdict sentence imposed alternative count upon offender convicted appearing bracket set following table bargenquastdavisfarthingholmes1aobh whilst armed company neill 2 years2 years6 month assault 2 years2common assault soanes 3 months3 months3 months3 months3burglary circumstance aggravation freestone 5 years4 years2 years4 years4aobh whilst armedand company jappe 3 years9 month assault 6 month assault 9 month assault 5deprivation liberty palmer 3 years3 years3 years3 years7manslaughter palmer 12 years10 years9 year svo declaration14 yearsdavis appeal conviction 14 sole ground verdict respect count 1 3 4 unsafe unsatisfactory necessary deal separately 15 count 1 appeal conviction argued basis insufficient satisfactory evidence upon jury could conclude beyond reasonable doubt appellant present unit relevant time count related aggravated assault occasioning bodily harm mitarsha neill complainant gave evidence received phone call chantal conroy 3am conroy came house together walked conroy house arrived farthing sitting lounge room neill conroy also sat 16 shortly three men know came shut door behind stood front asked palmer said know accused lying 17 neill gave description men said one tall skinny short brown hair tattoo side face heard referred adam accepted bargenquast described another 40 something medium build flat top hair cut heard others calling stretch accepted holmes third man described young guy wearing hat quite stocky build 20 year old hear referred name 18 initial questioning stretch told young guy get thing car left house came back although answer question see anything replied see anything almost immediately afterwards asked happened young fellow hat came back replied gave white cord adam put around throat pulled extremely tight accused stretch lying hit face closed fist farthing conroy remained lounge young guy sitting bar stool kitchen attached lounge room little away farthing conroy 19 conversation stretch conroy farthing left threat made told could go fled home injury suffered sufficient constitute bodily harm 20 unable identify appellant photo board shown police cross examination agreed unidentified man touched hit offered verbal encouragement stretch adam remained firm evidence unidentified man told get thing car seen come back white cord hand give adam asked statement police said unidentified man passed something man identified stretch explained happened stretch given adam 21 conroy said met bargenquast holmes prior relevant incident met appellant prior night 10 january 2003 come house bargenquast holmes night prior incident count 1 believed introduced wade discussion occasion palmer whereabouts whether neill lying knowledge whereabouts plan discussed presence conroy three appellant farthing conroy would pretend worried prowler contact neill purpose get neill come conroy house bargenquast could chat neill arrived farthing others arrived five minute later particular man knew wade bargenquast holmes 22 evidence happened holmes davis came inside thought bargenquast balcony davis farthing stood back kitchen davis quiet say anything agreed person knew wade taken part done neill said nothing way encouragement others 23 said holmes questioned neill asked lying saw holmes give nod bargenquast came cord passed holmes put around neill throat questioned aggressively one stage bargenquast holding cord around neck conversation holmes farthing left leaving three men neill house 24 conroy shown photo board police identified bargenquast holmes regard davis endorsed photo board number 10 shown board court pointed number 6 davis photograph explanation gave discrepancy number 10 immediately photograph identified davis said pretty sure identified photograph davis police jury advantage seeing give evidence decide whether accepted fact identified photograph davis 25 focus appellant submission inadequate proof third man even though actively participate assault neill presence plan lure premise discussed others assaulting sufficient basis jury find party even satisfied got cord direction holmes 26 learned trial judge gave general direction appropriate term concerning identification evidence specific direction conroy evidence coupled reminder need consider participation plan lure neill house issue going credit 27 learned trial judge left davis case jury two base aided commission offence providing cord offering encouragement remaining commission offence gave appropriate direction concept complaint made content told satisfied davis present could convict matter whether satisfied beyond reasonable doubt third man davis 28 direction given shortly passage complaint made said incorrect summary neill evidence complaint learned trial judge said neill version holmes directed davis learned judge mentioned name rather unidentified man get thing car returned something true neill know davis name therefore use evidence passage reasonably understood referring part played unidentified man evidence believed davis actually using davis name context could misled jury 29 may said submission direction immediately following direction concerning need satisfied davis present could convict dealt possible basis liability aiding encouragement defective complaint way expressed presupposes proof davis present requires jury make indicated inference make way unfavourable accused merely reading passage sufficient demonstrate complaint ill founded jury clearly instructed need satisfied third man davis direction deal premise jury accepts davis present satisfied aided getting cord explains alternatively may aider providing support presence knowing happening neill explained matter inference whether know whether intended support others conduct inference reasonably open evidence could convict basis error direction 30 substance ground appeal conviction count 1 dismissed 31 count 3 4 attack conviction quality evidence conviction unsafe unsatisfactory davis convicted burglary alleged circumstance aggravation relation entry unit occupied tamara freestone coral tree avenue noosa verdict jury taken respect circumstance aggravation individually common holmes farthing also convicted common assault geoffrey jappe unit although bargenquast convicted aggravated assault occasioning bodily harm 32 could doubt davis gone company others search palmer vicinity premise admitted driving bargenquast holmes area knowing intended recover money claimed stolen palmer admitted participating chasing palmer ran away one record interview admitted participating dragging girl bush searching bag see money 33 case conducted basis davis actually broken premise person first affected entry used knife cut fly screen jappe said arrived taxi located palmer vicinity shortly afterwards four wheel drive pulled nearby palmer ran away followed men four wheel drive jappe went freestone flat already locked door 34 saw man door asked palmer man learned trial judge satisfied bargenquast cut screen knife entered premise inside held knife jappe throat jappe told know palmer arm pinned bargenquast putting knee began cut jappe hand continuing ask palmer cut jappe face 35 jappe said another man 45 stocky grey hair prior face cut walked woman jappe said person palmer staying jappe taken outside look item palmer might dropped assaulted scruffy looking well built red haired man stopped told one others gone back inside man 25 brown haired carrying baton one half foot long came heard someone call outside got men left 36 tamara freestone also gave evidence short stocky person piece wood metre long coming flat time jappe went outside assaulted redheaded man 37 evidence witness desaubin already sentenced part event evening placed davis company holmes bargenquast coral tree avenue relevant time also gave evidence saw davis knew flat said davis miniature baseball bat aspect evidence relating davis strongly challenged cross examination 38 learned trial judge explained circumstance desaubin given evidence consequence cooperate trial gave appropriate warning dangerous convict evidence absence independent evidence supporting evidence directed correctly could nevertheless rely desaubin evidence absence supporting evidence ultimately matter whether extent accepted evidence 39 case left jury basis davis liability either aided offence entering unit shortly bargenquast entered 8 basis jury satisfied basis complaint made verdict count 3 4 inconsistent possible jury acted view evidence holmes davis entered unit shortly bargenquast assault someone unit probable consequence entry done course least tacitly agreed enterprise searching palmer hiding place however evidence supported sequence event assault involving use knife cut jappe attempt get information least commenced two actually entered unit jury verdict guilty common assault may reflect view went beyond davis holmes held responsible 40 evidence whole view reasonably open jury satisfied davis guilt count view appeal conviction count 3 4 dismissed appeal sentence 41 sentence imposed set table paragraph 13 learned trial judge summarised event evening saying pursuit palmer relentless first sighted eluded pursuer terrified neighbourhood offence soanes freestone jappe committed 42 control palmer suffered tearing nerve fibre brain injury caused force generated rapid rotation head causing brain swing within skull shearing force centre brain ruptured nerve fibre one blow could sufficient usually one addition bruising frontal lobe subdural haematoma scalp laceration fractured rib bruising area lower back right buttock laceration bruising 43 captured yard residence punched struck piece wood dragged road assaulted learned trial judge expressly made finding whether assault appellant farthing palmer left coral tree avenue could satisfied appellant farthing inflicted fatal blow satisfied involved happened whether holmes actually inflicted violence satisfied presence charge pursuit dissuade others also gave knowing encouragement 44 said found impossible differentiate level involvement offence said apart holmes role leader thought equally culpable appears relate position matter individual offender taken account offence serious violent offence involved pursuit sustained nature involved commission several offence coordination among appellant farthing evidenced arrival four wheel drive placing palmer vehicle subsequent conveyance mountain creek buderim stage learned trial judge thought probably dead 45 learned trial judge referred tor v duong others 2002 qca 151 tor v bates baker 2002 qca 174which considered worse case present case referred offer plead guilty manslaughter trial said present case fell betweenduongandbates bakerin seriousness said would fix head sentence reflect offence make sentence concurrent r v nagy 2003 qca 175 2004 1 qd r 63 necessary deal submission concerning appellant holmes 46 complaint essentially lack parity bargenquast submitted evidence showed bargenquastwas directly involved attack neill jappe palmer holmes involved attack neill jappe prevented attack jappe telling others although submitted evidence involvement actual attack palmer conceded holmes gone others farthing attack prime mover burial palmer body also conceded attack holmes benefit 47 holmes worst criminal history appellant although mostly recent leader learned trial judge described relentless pursuit victim said would sentenced basis assumed leadership role criminal history fact 44 older others would given highest penalty bargenquast 48 essence submission bargenquast behalf apart age little distinguish davis farthing factually submitted little distinguish farthing action purpose sentence except holmes control happened convicted serious offence count 1 4 others position comparable davis sentenced level 49 learned trial judge noted criminal history mostly relating property offence violence noted psychiatric problem age 27 time offence may observed argument position comparable davis difficult maintain bargenquast clearly played active role relation count 1 3 4 davis 50 submitted even appeal conviction count 1 3 4 dismissed head sentence excessive age 22 time good work history supportive family good reference minor criminal history fact influenced holmes submitted davis played lesser part offence provided transport evidence engaged physical violence palmer unsatisfactory also submitted withdrawn point palmer may dead taken buderim assisted police naming others involved taking police buderim address submitted sentence reduced eight year serious violent offence declaration 51 learned trial judge noted youngest offender steady employment accepted influence holmes family friend mentor supplied vehicle second occasion holmes tried contact father unavailable learned trial judge said receive benefit assistance although said entirely truthful named offender took police buderim address addition matter may observed davis present occasion 17 day apart appears admission assistance limited second occasion providing transport participated coral tree avenue chase least certain extent also recorded purpose considering parity learned trial judge described farthing assistance substantial surrendered police eventually made full confession identified others took police body relevant site jury differential verdict indicated saw role lesser one role others conclusion concerning sentence 52 view learned trial judge carefully weighed factor individual appellant relating farthing evidence cannot maintained successfully ranking offender relativity sentence imposed erroneous 53 respect level sentence imposed according jury verdict offender pursued course conduct two occasion 17 day apart intention finding palmer believed absconded 3 500 given holmes farthing obtain drug course activity terrorised people believed might able give information palmer whereabouts found tried escape subjected degree violence caused fatal injury 54 difficult result escape conclusion beating proved fatal inflicted retribution believed done even death unintended therefore serious offence 55 regard particularly toduong 12 year imprisonment imposed main offender serious le protracted series offence also said offender must receive benefit belated plea guilty cannot demonstrated sentence 14 year imposed leader connected series offence sentence carefully reflect relative degree culpability mitigating circumstance manifestly excessive application leave appeal sentence therefore refused case

Silver v Dome Resources Nl [2005] NSWSC 265 (10 March 2005).txt

silver v dome resource nl 2005 nswsc 265 10 march 2005 last updated 8 may 2005new south wale supreme courtcitation silver v dome resource nl 2005 nswsc 265current jurisdiction equityfile number 2586 01hearing date 3 10 march 2005judgment date 10 03 2005parties michael bernard silver p1 xd1 fair choice limited p2 xd2 dome resource nl d1 xc1 durban roodepoort deep limited d2 x xc2 judgment hamilton jlower court jurisdiction applicablelower court file number applicablelower court judicial officer applicablecounsel j e thomson j watt p xds g r parker d xc solicitor bull son schmidt p xds allen arthur robinson d xc catchword procedure 99 supreme court procedure practice supreme court rule admission withdrawal absence absolute right withdraw discretionary consideration act cited trade practice act 1974 cth 52corporations act 2001 cth s 200band200gdecision leave withdraw admission defence refusedjudgment supreme courtof new south walesequity divisionhamilton jthursday 10 march 20052586 01 michael bernard silver anor v dome resource nl orsjudgment1his honour application amend statement claim defence question contested hearing application whether defendant may amend defence withdraw admission whether plaintiff may amend statement claim include claim unders 52of thetrade practice act 1974 cth respect two representation additional two representation already relied 2 original statement claim filed 11 may 2001 plaintiff allege par 20 first defendant made payment second plaintiff pursuant term amended retirement deed first plaintiff relevant time beneficially entitled shareholder second plaintiff would received substantial benefit defence filed 21 june 2001 defendant deny traversed non admission par 20 statement claim amended defence filed 20 may 2002 defendant admitted par 20 statement claim formal amendment occurred shortly evidence filed behalf plaintiff instance mr silver affidavit sworn 5 april 2002 however reasonably clear evidence formulated admission par 20 going made 3 long history proceeding pleading amendment interlocutory contest proceeding originally fixed trial 4 6 february 2003 fixture vacated barrett j 20 december 2002 following circumstance set honour judgment delivered day persuaded defendant allowed withdraw relevant admission since seen valid question ventilated authority signatory retirement variation deed corporate action supposedly authorising deed made accept may cause prejudice plaintiff way need inquiry possibly discovery also accept point could raised earlier stage defendant one case need orderly progress proceeding towards trial far possible maintenance scheduled hearing date balanced interest justice see interest justice need authority issue raised least cogent way introduced proceeding therefore propose allow amendment sought defendant add question authority mentioned barrett j remains central important issue longer trial fixed 4 15 april 2005 4 defendant late january 2005 indicated first time desire withdraw admission par 20 statement claim original decision admit par 20 made consultation defendant counsel statement tendered support application withdraw admission reason making admission stated follows 5 time admission made evidence produced defendant aar substantiate allegation made paragraph 20 statement claim decision make admission made believed making admission would assist defendant cross claim particular would assist contention first plaintiff knowledge attributed second plaintiff b first plaintiff personally benefited execution retirement variation deed mostert stratton breach duty 6 result reconsideration present counsel desired withdraw admission time amendment made cross claim remove allegation cross claim consistent admission decision withdraw admission paragraph 20 statement claim based judgment present counsel mr martino considered matter agrees defendant interest best served withdrawing admission making amendment cross claim subsequently affidavit mr davis mr martino filed read substantially differ summary statement tendered 5 term par 20 statement claim crystal clear uninstructed mind however plain factual matter sought contested whether first plaintiff beneficially entitled shareholder second plaintiff whether would received substantial benefit term accounting standard feed provision ofss 200band200gof thecorporations act 2001 cth matter section play part pleading 6 question whether first plaintiff beneficial shareholder depends oral arrangement mr yu plaintiff relied affidavit evidence solicitor mr marucci mr yu difficult find disappeared china creditably mr marucci bent every effort find located rest home somewhere beijing tienjin contact email mr yu ill serious doubt ability travel availability video link facility take cross examination even process obtaining evidence would difficult disruptive late stage importance independent witness corroborate first plaintiff account oral arrangement obvious 7 defendant draw attention fact affidavit mr yu put earlier time available mr marucci frankly concedes consider possibility evidence filed early 2002 however lie ill mouth defendant changed mind eleventh hour complain plaintiff changed mind necessity mr yu evidence 8 principle concerning withdrawal admission discussed number recent case considered length rogers cj comm incoopers brewery ltd v panfida food ltd 1992 26 nswlr 738 much said case germane present case honour enunciated central principle leave may granted admission withdrawn justice requires 746 relevant principle formulated amply santow j honour indrabschv switzerland general insurance co ltdnswsc unreported 16 october 1996 honour formulation adopted full court federal court australia injeans v commonwealth bank australia ltd 2003 fcafc 309 2003 204 alr 327at 17 18 follows 17 honour noted common ground relevant principle applied motion leave dealing application withdrawn sic admission honour summarised principle suggestion appeal honour applied wrong principle summarised inaccurately honour correctly rejected approach taken england inh clark doncaster ltd v wilkinson 1965 ch 694 1965 1 er 934where suggested except case gave rise estoppel admission might withdrawn least party prejudiced otherwise way might cured cost order rather honour accepted view advanced rogers cj incoopers brewery ltd v panfida food ltd 1992 26 nswlr 738that party permitted easily withdraw admission otherwise making admission might become meaningless nevertheless countervailing policy honour accepted party discouraged making admission fear given might withdrawn 18 true position honour said principle admission might might withdrawn rather court broad discretion weigh matter overall question ensure fair trial honour accepted principle stated santow j supreme court new south wale indrabsch v switzerland general insurance co ltd unreported 16 october 1996 bc9604909 follows 7 8 1 party apparent disability make clear distinct admission accepted opponent acted upon reason policy due conduct business court application withdraw admission especially appeal freely granted 2 question one reviewing judge consider context particular appeal general guideline person seeking review withdraw concession made provide good reason judge disturb previously common ground conceded 3 court satisfied admission made consideration advice party expert full opportunity consider case whether admission made admission made deliberateness formality would ordinarily permitted withdrawn 4 usually appropriate grant leave withdraw admission shown admission contrary actual fact leave may also appropriate circumstance show admission made inadvertently without due consideration material matter irrespective whether admission formally made leave may refused party changed position reliance upon admission 5 followingcohen v mcwilliam 1995 38 nswlr 476 court obliged give decisive weight court efficiency party wish defend claim entitled hearing merit cost order available mean compensating party cost thereby unnecessarily incurred fairly visited party honour went consider relationship principle decision high court inthe state queensland v j l holding pty limited 1997 hca 1 1997 189 clr 146 9 reality view conflict statement principle withdrawal admission case cited inj l holding since governing consideration instance requirement justice ensuring fair trial earlier formulation principle withdrawal admission full court federal court australia incelestino v celestinofcafc unreported 16 august 1990 statement principle predatedj l holdingsand held unsound gillard j inmckenziev commonwealth 2001 vsc 361at 46 full court western australia inhutton v meston 2004 wasca 178at 18 disavowal part conflict earlier case andj l holding event take santow j statement indrabsch approved full court federal court injeans representing correct statement applicable principle 10 among proposition flow statement santow j federal court withdrawal allowed matter course applicant withdrawal seeking indulgence applicant establish case withdrawal mr g r parker counsel defendant put withdrawal would allowed unless futile opponent establish futility plaintiff done contrary view matter turn onus onus applicant establish utility withdrawal thus inaustralia new zealand banking group ltd v bechely crundallnswsc unreported 11 june 1996 sperling j said relief would granted way leave withdraw admission provided matter seriously question proceeding utility withdrawal admission must established futility 11 one factor shall advert firmly view withdrawal allowed defendant frank plaintiff presentation case application clearly state admission made advice counsel consideration material factor least part gain tactical advantage presentation cross claim establish refusal application lead conduct case factual basis different reality simply say new counsel deems advantageous defendant deny par 20 statement claim furthermore find plaintiff would prejudiced withdrawal admission stage prejudice could cured simply cost order thing stand would wish mr yu evidence issue contested preparation trial month would disrupted effort get evidence far certain whether could obtained time acceptable form evidence appears material issue sought raised save follows view refusal application withdraw would accordance requirement justice 12 countervailing consideration plaintiff seek rely new cause action play admission made clear par 20 material new cause action indemasi v linfox transport aust pty ltdnswsc unreported14 june 1995 mclelland cj eq would permitted admission made defence withdrawn except statement claim amended way may arguably cause admitted fact added different significance relation claim first brought forward amendment statement claim allegation sought put issue whether lease expired 29 30 september totally different significance respect added opposed existing claim significance admitted fact nature relation proposed new claim old alter fact plaintiff seek rely new claim propounded time admission made propose hold inquiry whether defendant decision would new claim already play time like mclelland cj eq indemasi think defendant held admission respect claim consideration time made held admission relation claim held 13 propose follow course followed honour indemasi namely put plaintiff election whether wish persist amendment application far relates new cause action since prejudice suggested flow amendment shall allow amendment also allow withdrawal admission persist amendment intend refuse defendant application withdraw admission 14 fact election debated submission motion plaintiff indicated court put election would retract application amend adding additional representation 15 result plaintiff granted leave file amended statement claim form propounded omitting amended paragraph 53a 56a also omitting prayer 11a defendant application leave withdraw admission refused 16 decision result originally sought amendment allowed statement claim defence party bring forward formal leave granted filing court version amended pleading accordance ruling last updated 31 03 2005

Wilson, Peter John [2001] MRTA 1833 (2 May 2001).txt

wilson peter john 2001 mrta 1833 2 may 2001 last updated 19 june 2001 2001 mrta 1833catchwords spouse prospective genuine continuing mutualityvisa applicant rudra wilsonreview applicant peter john wilsontribunal migration review tribunalpresiding member lindsay fordmrt file number v00 00208dima file number f99 158765date decision 2 may 2001at melbournedecision tribunal affirms decision refuse grant spouse provisional class uf visa subclass 309 visa applicant statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural affair delegate rudra wilson neé wati visa applicant female national fiji born 3 august 1966 applied spouse provisional class uf visa subclass 309 23 august 1999 delegate decision refuse visa made 26 november 1999 peter john wilson review applicant lodged application review migration review tribunal tribunal 14 january 2000 jurisdiction standing2 visa applicant lodged valid application review decision reviewed tribunal legislation policy3 themigration act 1958 act various regulation made principally themigration regulation 1994 regulation provide different class visa criterion grant reaching decision tribunal bound act various regulation written direction issued minister section 499 act matter may subject policy found publication produced department immigration multicultural affair dima procedure advice manual 3 pam 3 migration series instruction msi tribunal required regard policy apply unless cogent reason 4 general term person may considered visa complies criterion tribunal must affirm decision review one criterion essential grant visa met hand tribunal find one criterion met may remit application visa dima direction specified criterion met matter minister delegate consider remaining criterion tribunal consideration therefore usually limited might described criterion dispute many regulation require applicant provide evidence support specific criterion time application made evidence provided criterion time tribunal taken account relevant time decision criterion otherwise extent reinforces detracts evidence provided time application see bretag v immigration review tribunal fca unreported 29 november 1991 5 legislation policy relevant review legislation migration regulation 1994 schedule 2 part 309andregulation 1 15apolicy procedure advice manual pam 3 migration series instruction msi case minister immigration local government ethnic affair v dhillon fca 8 may 1990r v cahill 1981 2 nswlr 453minister immigration multicultural affair v asif 2000 fca 228nassouh v minister immigration multicultural affair 2000 fca 788bretag v immigration review tribunal fca unreported 29 november 19916 tribunal generally regard regulation stood time visa application later amendment may apply circumstance evidence7 tribunal regard document dima file document file material submitted behalf visa applicant hearing scheduled 17 april 2001 review applicant telephoned said wish travel melbourne proceeded due date telephone tribunal received oral evidence review applicant tribunal following document available review t1 mrt case file folio numbered 1 99d1 dima case file folio numbered 1 368 visa applicant 34 year old fijian female currently resides sigatoka fiji 23 august 1999 applied spouse provisional class uf visa subclass 309 basis marriage peter john wilson review applicant australian citizen since birth d1 f 11 married 29 july 1999 fiji d1 f 5 review applicant third marriage second marriage remy wilson ended divorce 26 june 1998 30 month d1 f 2 9 enclosed application written statement visa applicant d1 f 4 describing development relationship review applicant stated 1998 introduced review applicant cousin life australia june 1999 review applicant travelled fiji meet person day later engaged soon review applicant departed australia following month review applicant returned fiji 29 july 1999 married 10 23 november 1999 visa applicant interviewed australian high commission suva d1 f 31 35 interview visa applicant stated trying get visa enter australia new zealand rejected said married earlier wanted marry person overseas interviewing officer asked 33 year old woman would chose marry 69 year old man said find anyone else d1 f 22 26 november 1999 delegate refused application ground visa applicant unable demonstrate marital relationship genuine continuing criterion dispute 14 january 2000 review applicant lodged application review mrt t1 f 1 27 apart written statement review applicant tried refute delegate conclusion relationship question genuine documentary evidence support application enclosed 11 letter australian embassy fiji dated 29 october 1999 review applicant stated visa applicant corresponded 13 month due misunderstanding mail arriving correspond 2 3 month d1 f 16 stated receiving reply two letter rudra thought lost interest corresponding burned 20 letter however written statement addressed australian high commission suva d1 f 4 visa applicant stated although introduced review applicant year ago wrote one letter explained low level communication saying send photo rejected connection review applicant trip fiji june 1999 said surprise one afternoon went home work saw peter cousin place d1 f 4 12 13 december 2000 tribunal invited review applicant provide date information documentary evidence indicating relationship visa applicant going continuing 19 january 20001 tribunal received one card two letter review applicant support application envelope included 13 hearing review applicant miner working life travelled many country said often visited fiji holiday indian woman monita living ballarat far life asked wanted meet girl fiji acquiesced arrived monita introduced number woman monita claimed relative also visa applicant interested visa applicant said following day visited visa applicant without monita escorting began going together swimming travelling see sight proposed week agreed civil ceremony later arranged ceremony methodist minister said around 100 guest attended celebration visa applicant parent home cake word engagement due error visa applicant father 14 said stayed visa applicant 2 week room parent home returned australia returned december 2000 spent 2 week touring could recall stayed said thought one hotel called raki raki 15 said visa applicant discussed future plan apart wish show around australia joint asset two child happy relationship contact two met many visa applicant friend travel introduced spouse far early correspondence concerned said many letter photograph exchanged given box book away local university thought inadvertently put envelope containing document asked look found read content letter concerning burning letter d1 f 16 said must happened memory good day 16 said could live fiji visa rejected poor country difficult place live said like give go like try religious think long good stay findings17 visa applicant successful obtaining visa must meet mandatory criterion far relevant application review visa applicant must time application spouse australian citizen regulation 309 211 2 prohibited sponsor regulation 309 212 18 year age regulation 309 213 visa applicant met requirement regulation tribunal also satisfied marriage recognised valid purpose act regulation 1 15a 1 also meet time decision criterion continues spouse australian citizen prohibited sponsoring aged 18 regulation 309 221 sponsorship approved still force regulation 309 222 18 previous finding conditional visa applicant meeting definition spouse core criterion visa defined inregulation 1 15a provides tribunal must satisfied party havea mutual 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 inminister immigration local government ethnic affair v dhillon federal court 8 may 1990 unreported relevant comment test genuine marriage adopting word street c j inr v cahill 1978 2 nswlr 453at458 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 husband wife exclusion others 19 proper course therefore follow regulation apply fact excluding speculation notion idealised marriage consideration 20 determining question arising underregulation 1 15a 1 class visa tribunal required byregulation 1 15a 3 consider list factor indicator married relationship minister immigration multicultural affair v asif 2000 fca 228 7 march 2000 applied date application nassouh v minister immigration multicultural affair 2000 fca 788 14 june 2000 conduct pertinent indicator relevant time decision requirement visa tend logically show existence non existence claim made time application seebretag v immigration review tribunal fca unreported 29 november 1991where loughlin j quoted fromminister immigration multicultural affair v pochi 1980 fca 85 1980 4 ald 139at p160 point 21 regulation 1 15 3 deal financial aspect relationship party significant asset whilst visa applicant claimed given visa applicant money evidence gift provided regulation 1 15 3 b focus nature household largely irrelevant child living rather artificial situation visited fiji much visitor party made plan future indication intend run household 22 regulation 1 15 3 c look social aspect relationship party represent married fiji dint wedding celebration however little evidence celebration none attended review applicant informed two four child doubt visa applicant friend relative aware relationship nature party commitment regulation 1 15a 3 substantiated probative evidence claimed many letter photograph exchanged yet little evidence explained variety story letter burned sent package book review applicant sent visa applicant visa applicant even admitted reason chose marry visa applicant one else offering even review applicant comment illustrated relationship anything solid conceding would giving go try ing fact illustrate commitment reasonable prospect relationship long term regulation 1 15a 3 e 23 analysis factor evidence given point conclusion formed delegate namely intention visa applicant entering relationship obtain residence australia hand review applicant appears genuine however way rushed relationship absence plan future suggest looking company probably antidote loneliness irrespective motif spouse far motif concerned fact party partly motivated migration consideration fatal application indicator pointing relationship within criterion inregulation 1 15a case none visa applicant side comment interview show largely indifferent married long marriage would allow leave fiji mean requirement mutuality commitment inregulation 1 15a 1 b met accordingly tribunal find visa applicant satisfy definition spouse inregulation 1 15aand therefore fails meet requirement regulation 309 211 309 221 visa applied conclusion24 visa applicant meet criterion dispute visa subject review decision25 tribunal affirms decision refuse grant spouse provisional class uf visa subclass 309 visa applicant

G and N [2009] WASAT 99 (15 May 2009).txt

g n 2009 wasat 99 15 may 2009 last updated 1 june 2009jurisdiction state administrative tribunalstream human rightsact guardianship administration act 1990 wa citation g n 2009 wasat 99member m j toohey senior member mr j mansveld member m gillett senior sessional member heard 5 may 2009 6 may 2009delivered 15 may 2009edited reason delivered orally 15 may 2009file gaa 2521 2008gaa 2587 2008gaa 1036 2009between gapplicantandnrepresented personcatchwords administration guardianship conflict child step child agreement party enduring power attorney revoked whether attorney required file record account tribunal satisfied attorney kept record account satisfactory account dealing transaction attorney required produce record account tribunal applicant wish proposed represented person appointment family member administrator unworkable account conflict public trustee appointed administrator applicant appointed guardian direction consult family memberslegislation guardianship administration act 1990 wa 4 2 44 1 44 2 43 64 1 68 1 68 3 107 1 107 1 b 108 1a 109 119result public trustee appointed plenary administratorapplicant appointed limited guardianthe enduring power attorney revokedcategory brepresentation counsel applicant mr hershowitzrepresented person m e needhamsolicitors applicant metaxas hagerrepresented person paynescase referred decision nilreasons decision tribunal summary tribunal decision1 applicant sought order theguardianship administration act 1990 wa concerning elderly father n dementia 2 applicant sought order appointed guardian administrator n enduring power attorney appointed step son attorney revoked also sought order step son produce record account dealing transaction undertaken attorney 3 step son assisted n many year applicant become involved affair recently 4 conflict applicant sister one hand n step child however agreed n longer capable managing estate needed someone act behalf agreed enduring power attorney n appointed step son later enduring power attorney appointed applicant revoked step son acted pursuant power several year applicant exercised power proposed appointment administrator 5 applicant questioned dealing transaction step son attorney sought record account tribunal accepted step son explanation transaction satisfied kept record acted properly exercising power attorney accept required produce record account tribunal applicant 6 tribunal found conflict either step son applicant would suitable act administrator conflict would make either appointment unworkable appointed public trustee plenary administrator 12 month time conflict might resolved step son applicant might suitable act administrator 7 tribunal found n immediate need guardian accepted decision accommodation treatment would likely made foreseeable future satisfied applicant suitable act guardian satisfied would involve step child n would wanted directed applicant consult step child keep informed background8 applicant sought order theguardianship administration act 1990 ga act concerning elderly father n dementia 9 n grew south africa settled perth 1988 second wife j child marriage 10 n three child first marriage elder daughter life europe son new zealand account estranged younger daughter came perth south africa august 2004 lived since applicant proceeding son daughter j first marriage live south africa 11 j moved nursing home july 2008 died september 2008 october 2008 applicant husband moved n home since cared 12 dispute arisen n daughter one hand j son daughter son law n son sent brief letter tribunal stating support applicant otherwise involved proceeding 13 refer reason n daughter applicant j son step son j daughter step daughter step daughter husband son law n estate enduring power attorney14 year n j owned several property business sold 2003 throughout marriage j managed couple financial affair 2005 aging felt needed assistance 15 august 2005 n executed enduring power attorney epa appointing step son attorney substitution step daughter epa expressed come effect immediately continue notwithstanding subsequent incapacity 15 although clear evidence appears time sometime earlier j also appointed step son step daughter act behalf 16 tribunal heard evidence accepts n j continued assert independence manage affair epa safeguard case needed step son helped year financial matter continued act power april 2008 apparent neither n j could manage even n continued manage aspect affair operating bank account 17 early 2008 j health deteriorating parkinson disease intense care required taking toll n carers noticed increasing problem memory coping generally 18 step son step daughter visited perth several time 2008 help couple make arrangement consultation carers decided j needed nursing home care step son step daughter applicant agreed sell unit owned couple pay nursing home bond 230 000 n would continue live matrimonial home 19 j moved nursing home july 2008 died late september 2008 sale unit finalised end october 2008 n half share proceeds sale held solicitor trust account pending outcome proceeding also owns one half matrimonial home half held j estate several bank account receives pension south africa 20 july 2008 n executed second epa appointing applicant attorney formally revoke earlier epa circumstance second epa came form part dispute event applicant given evidence tribunal accepts exercised power attorney applications21 30 october 2008 applicant lodged application tribunal seeing transaction n bank statement say call question step son conduct attorney order sought beyond tribunal power dealt principally applicant sought order appointing administrator n andordering step son produce record account dealing pursuant epa executed n august 2005 22 time application lodged sale n j unit finalised applicant also sought order effect preserving n half share proceeds restraining step son exercising power attorney 23 31 october 2008 tribunal injunction restrained applicant step son acting either epa without prior approval tribunal 24 recently applicant applied appointed n guardian order make decision concerning medical treatment live issues25 party agree n longer able make reasonable judgment estate need someone lawful authority manage affair 26 tribunal satisfied basis report n general practitioner consultant physician social worker public advocate evidence party n longer able reason alzheimer disease make reasonable judgment estate 27 medical evidence raise question n capacity july 2008 execute second epa light n failing cognitive ability consultant physician considers second epa unsafe circumstance party agreed epa revoked administrator appointed 28 various matter concerning n estate need dealt tribunal satisfied need administrator 29 dispute appointed administrator whether n need guardian n need guardian appointed andwhether step son required produce record account dealing transaction made attorney 30 applicant proposes appointed administrator say step son suitable appointed manner performed duty epa 31 step son proposes appointed administrator alternative public trustee appointed say applicant suitable appointed administrator say knew known n able execute second epa knew earlier epa conduct proceeding led complete breakdown trust party 32 applicant say n need guardian make decision concerning accommodation medical treatment j child agree n presently need guardian concede need likely arise foreseeable future however question applicant suitability act guardian 33 step son maintains performed duty attorney diligently object producing record tribunal say required produce applicant maintains fishing expedition contrary n wish 34 issue appointment administrator whether step son required produce record overlap substantially legislation35 tribunal jurisdiction virtue ga act make order concerning appointment administrator guardian certain order concerning epa appointment administrator guardians36 tribunal may appoint administrator person satisfied unable reason mental disability make reasonable judgment estate need administrator 64 1 37 section 43 1 provides tribunal may appoint guardian person satisfied incapable looking health safety ii unable make reasonable judgment respect person iii need oversight care control interest health safety protection others iv need guardian may appointed administrator38 administrator shall someone opinion tribunal act best interest person respect application made otherwise suitable act position 68 1 39 purpose determining whether person suitable appointed administrator tribunal shall take account far possible compatibility proposed appointee person concerned administrator estate wish person concerned whether proposed administrator able perform function vested 68 3 may appointed guardian40 guardian shall someone opinion tribunal act best interest person concerned position interest conflict may conflict interest person otherwise suitable act guardian 44 1 41 purpose determining whether person suitable appointed guardian tribunal shall take account far possible desirability preserving existing relationship within family person concerned compatibility proposed appointee person concerned administrator estate wish person concerned whether proposed guardian able perform function vested 44 2 order concerning epas42 person opinion tribunal proper interest matter may apply order requiring donee epa file tribunal serve applicant copy record account kept donee dealing transaction made connection power 109 1a 43 109 1 c tribunal may revoke epa tribunal appoints administrator continuing existence epa would inconsistent function administrator tribunal shall revoke epa extent inconsistency 108 1a principle observed44 dealing proceeding commenced ga act tribunal must observe principle set 4 2 apply principle tribunal main concern must n best interest n presumed capable looking health safety making reasonable judgment respect person managing affair making reasonable judgment respect matter concerning estate contrary proven satisfaction tribunal guardianship administration order shall made n need could met mean le restrictive freedom decision action plenary guardian shall appointed limited appointment would sufficient meet n need andany order must term impose least restriction possible circumstance 45 finally tribunal must seek ascertain far possible n view wish expressed whatever manner time time gathered previous action party relationship n46 step son step daughter claim n estranged applicant many year say relevant suitability act behalf say n j talked year estrangement applicant son dispute remained close elder daughter say applicant entered n life moved perth 2004 even really involved around april 2008 n carers contacted agree became actively involved father time 47 applicant concedes sibling really good relationship j denies estranged father say maintained loving relationship j left south africa produced letter card email father well photograph together visit support claim say husband visited n every second weekend since september 2005 moved live october 2008 step son step daughter dispute claim rarely perth period 48 step son step daughter describe n like father evident year n j closer child would stay step daughter visit south africa rather applicant entrusted financial affair step son step daughter appointed step son step daughter executor will 2004 2006 instructed accountant april 2008 would assisting financial matter future even applicant moved perth continued entrust affair j child 49 based evidence heard n step son step daughter probable applicant close n claim estranged step son step daughter claim event disputed husband assumed n full time care claim evidence step son conduct attorney50 applicant say step son failed duty n attorney extent suitable appointed administrator transaction undertaken exercise power require scrutiny produce record account tribunal applicant 51 applicant refers following matter particular number withdrawal transfer step son n j bank account three month j death withdrawal transfer include substantial amount paid step daughter son law shortly j death step son failure recognise conflict interest making payment j family warning notice notice impending cancellation service received j n early 2006 indicating account paid andthe step son failure bank cheque australian taxation office made n withdrawal transfer bank accounts52 bank statement led proceeding show withdrawal transfer including 174 000 transferred 13 august 2008 unidentified account withdrawal nearly 2 000 two withdrawal 6 000 20 22 august 2008 step son made last transaction south africa shortly returning perth 19 september 2008 transferred 1 599 35 solicitor 22 september 2008 made two withdrawal 3 000 one 5 000 29 september 2008 transferred 4 510 n j accountant 53 step son gave evidence transaction produced various record able account transaction including withdrawal 174 000 part payment j nursing home bond 230 000 payment step daughter son law legal cost associated n estate payment tax 54 tribunal accepts step son evidence transaction find account conduct satisfactory respect two qualification refer loan account55 tribunal heard evidence step son step daughter son law account j name referred loan account debt account three gave evidence fund account advanced different time year step daughter son law n j 56 loan documented one could tell tribunal precisely amount advanced total order 110 000 115 000 step daughter son law would bring money visit australia deposit account clear much n j used fund account year available 57 son law gave evidence money loan account fact j bequeathed fund account step son step daughter supported evidence 58 step son produced tribunal letter dated august 2004 n j step daughter son law stating decided lend 35 000 help establish guest house letter genuine would suggest firstly step daughter son law may owed money j secondly step son may improperly repaid money step daughter son law j death n j considered property jointly owned would implication n estate 59 became clear loan account mean step daughter son law could transfer fund australia without offending south african exchange regulation loan referred august 2004 letter device enable later return fund australia way repayment without offending south african exchange regulation happened return fund step son gave evidence balance 81 000 owed time appointment attorney produced record kept j account 60 step son gave evidence insufficient fund j n account pay 230 000 bond j nursing home therefore borrowed 56 000 loan account make difference account reduced step daughter son law earning le interest fund repaid money shortly j died told tribunal felt moral responsibility look family payment consistent j bequest son law also paid step daughter approximately 2 000 lent n j airfare 61 tribunal find loan account essentially fiction fund fact belonged step daughter son law satisfied step son subsequently reconciled account ensured n j estate treated equally n suffered detriment account payment 62 however would prudent step son satisfy best could amount advanced loan account year precise amount owing step daughter son law j death although clear fund actually belonged step daughter son law acting interest wider family step son recognise conflict interest done preserved j estate distribution according tribunal satisfied conduct accorded n j wish neither suffered actual detriment result unpaid account unbanked cheques63 applicant produced tribunal number notice relation unpaid account include letter showing building content insurance n j matrimonial home cancelled non payment notice impending disconnection gas electricity reminder payment account home security final notice payment telephone water st john ambulance account notice dated april 2006 february 2008 also several cheque australian taxation office ato banked 64 applicant say step son failure pay account bank cheque demonstrates firstly failure act properly attorney secondly impractical act administrator distance 65 step son gave evidence act epa april 2008 prior n j apparently managing affair however step daughter visited perth april 2008 clear n j could longer act took step daughter arranged direct debit number account 66 step son say tax refund cheque ato arrived returned south africa aware time 67 step son step daughter agree living south africa make impractical either manage n affair say long necessary detail direct debit internet banking could manage behalf claim evidence applicant conduct68 step son step daughter say applicant suitable act n behalf question motif bringing proceeding dispute claim visited n regularly say become involved around march april 2008 one carers time contacted 69 step son step daughter say applicant knew known n longer capable executing epa july 2008 say knew n appointed step son earlier epa gave evidence present one occasion earlier epa discussed say tell accompanied n solicitor second epa drawn even agreed july 2008 unit sold pay nursing home bond 70 applicant denies claim say knew n memory problem second epa executed thought due old age medical evidence competent denies present first epa discussed concedes knew step son handled j n affair say tell step daughter son law second epa lodged landgate would valid 71 applicant raise concern bank statement father estate step son step daughter bringing proceeding say conduct undermined trust applicant maintains step son always insisted handling matter discussed say accountant concerned n fund would removed south africa brought proceeding without notifying party n wishes72 tribunal heard n j made will may 2004 appointed step son step daughter executor trustee j survive tribunal sighted will accepts step son evidence tribunal sighted copy later made n august 2006 appoints step son step daughter joint executor trustee draw inference content disclosed applicant evidence suggesting later revoked made 73 tribunal also seen letter dated 2 april 2008 j n accountant advising step son step daughter would assisting financial matter future giving authority access information matter pertaining affair 74 tribunal satisfied n j clear preference step son lesser extent step daughter son law assist financial affair year indication wanted applicant involved even moved perth n continued entrust affair j child involve 75 november 2008 tribunal asked public advocate investigate application ascertain n view wish act public advocate provided written report investigation one officer visited n home december 2008 officer report n expressed wish throughout interview applicant manage affair stated implicit trust officer report also n appeared confused name child step child somewhat vague asset liability several occasion interview became distressed could recall thing asked officer refer applicant 76 although n executed epa july 2008 appointing applicant medical evidence indicates capacity time questionable extent epa considered expression n wish applicant manage affair must also questionable 77 light medical evidence n cognitive impairment difficult know weight put wish expressed december 2008 expressed preference applicant contrary clear preference year possible reflected little applicant present recognisable 78 evidence point n long standing preference j child manage affair balance tribunal find would prefer step son step daughter continue manage affair however wish determinative tribunal main concern must still best interest appointed administrator79 tribunal accepts step son evidence dealing transaction attorney qualification expressed matter questioned applicant satisfactorily explained 80 tribunal accept applicant contention unpaid account unbanked cheque demonstrate step son failure act n j best interest accept evidence step son step daughter n j continued manage affair find unpaid account reflect growing incapacity manage affair rather failing step son 81 circumstance qualification referred step son conduct attorney serious make unsuitable act administrator absence current conflict would find suitable appointed however unpaid account underline difficulty would managing n estate even direct debit internet banking arranged management distance would require applicant cooperation would inevitably matter would inform would almost certainly look make various arrangement light conflict satisfied appointment would workable 82 tribunal also satisfied absent conflict j child applicant would suitable act administrator accounting qualification presently caring n readily ass need 83 tribunal make finding applicant motif bringing application however failure tell step son second epa even knew mainly responsible managing n j affair conduct bringing proceeding without even asking step son various transaction make clear cooperation j child step son particular virtually impossible 84 applicant administrator cooperation j child would essential particular would deal step son step daughter executor j estate light conflict satisfied appointment would workablepublic trustee appointed85 circumstance tribunal find n best interest independent administrator appointed appoint public trustee plenary administrator appointment 12 month initially time j estate finalised may 12 month applicant step son could appointed step son required produce record accounts86 tribunal satisfied applicant proper interest bringing application n daughter carer raised reasonable question bank account face require explanation question whether step son required produce record account tribunal applicant 87 epa establishes fiduciary relationship donee donor donee must exercise power reasonable diligence protect interest donor must keep preserve accurate record account dealing transaction made power 107 1 b 88 course hearing step son produced tribunal applicant document record concerning n j estate transaction undertaken capacity attorney one two exception able readily produce document tribunal satisfied step son maintained record dealing transaction attorney question whether required produce tribunal applicant 89 whereas administrator appointed ga act required unless exempted submit account public trustee examination whereas appointment subject review tribunal conduct donee epa subject scrutiny scrutiny donee conduct way order 109 ga act consistent private le formal nature epa generally applicant must proper interest order apply order 109 90 ga act provides guidance tribunal exercising discretion 109 however nature purpose epa generally well principle 4 2 relevant relatively private nature epa wish donor particularly relevant 91 donee maintained record dealing transaction power provide satisfactory explanation oath dealing question tribunal would normally slow require produce record tribunal third party support evidence 92 case tribunal satisfied step son maintained record account dealing attorney able provide plausible reasonable explanation transaction questioned applicant tribunal 93 reasonable conclude entrusting affair step son lesser extent step daughter son law n wish involve applicant even moved perth visiting regularly n take confidence financial matter 94 substantial number document already produced applicant hearing tribunal persuaded n best interest require production record account public trustee administrator obtain step son record requires n need guardian95 tribunal report n general practitioner report comprehensive assessment consultant physician report social worker aged care assessment team ass n dementia probably alzheimer disease consultant physician note score 21 30 mini mental state examination june 2006 score 16 30 september 2008 report dated 12 november 2008 general practitioner note score 17 30 february 2008 indicating significant cognitive impairment affect current capacity make reasonable judgment concerning estate 96 although medical report focus n capacity make reasonable judgment estate also document increasing vagueness declining memory increasing need care 97 applicant given evidence father mental condition deteriorated past six month bout confusion agitation difficulty making simplest choice wear still able wash feed clothe need prompting would like stay home long possible present appears sustainable belief may need nursing home care within six 12 month 98 tribunal satisfied medical evidence evidence applicant n incapable looking health safety longer able make reasonable judgment respect matter relating person need oversight care interest health safety 99 n range medical treatment recent month including x ray skin graft hospitalised 10 day see general practitioner average twice month need see dentist treating doctor appear acted combined consent n applicant 100 n appear need guardian immediately tribunal accepts decision likely made within foreseeable future accommodation also foreseeable need treatment formal authority rather authority 119 ga act required appointed guardian101 applicant proposes appointed guardian j child propose oppose applicant appointment question j need suitability 102 applicant life care n understands daily need tribunal satisfied suitable act guardian one qualification 103 response question tribunal would make decision n behalf evident applicant see sole decision maker j child little involvement 104 tribunal accepts j child regard n father based relationship many year find would want involved far practicable important decision concerning therefore direct applicant limited guardian consult j child keep informed accommodation treatment ordersthe time giving notice guardianship application shortened tribunal declares n unable reason mental disability make reasonable judgment respect matter concerning estate ii need administrator public trustee appointed plenary administrator estate n power duty conferred theguardianship administration act 1990 wa tribunal declares n incapable looking health safety ii unable make reasonable judgement respect matter relating person iii need oversight care control interest health safety iv need guardian tribunal appoints applicant limited guardian n following function subject div 3 ofpt 5of theguardianship administration act 1990 wa consent treatment health care ii make decision concerning live limited guardian directed consult step son step daughter n accommodation treatment health care enduring power attorney made n 15 august 2005 21 july 2008 appointed step son applicant respectively attorney revoked step son directed provide public trustee record account dealing transaction exercise power attorney public trustee requires order 1 2 3 made tribunal 3 december 2008 shall cease effect date order fund held trust account benefit n paid public trustee forthwith application order unders 109 1 dismissed tribunal review order 14 may 2010 certify preceding 104 paragraph comprise reason decision state administrative tribunal ___________________________________ms j toohey senior member

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2019] FWCA 6381 (13 September 2019).txt

communication electrical electronic energy information postal plumbing allied service union australia 2019 fwca 6381 13 september 2019 last updated 8 august 2020 2019 fwca 6381fair work commissiondecisionfair work act 2009s 185 enterprise agreementcommunications electrical electronic energy information postal plumbing allied service union australia ag2019 3279 mark2 electrical pty ltd etu enterprise agreement 2018 2021electrical contracting industrydeputy president massonmelbourne 13 september 2019application approval mark2 electrical pty ltd etu enterprise agreement 2018 2021 1 application made approval enterprise agreement known themark2 electrical pty ltd etu enterprise agreement 2018 2021 agreement application made pursuant tos 185of thefair work act 2009 act made communication electrical electronic energy information postal plumbing allied service union australia agreement single enterprise agreement 2 employer provided written undertaking copy undertaking attached annexure satisfied undertaking cause financial detriment employee covered agreement undertaking result substantial change agreement undertaking taken term agreement 3 subject undertaking referred satisfied requirement ofss 186 187 188and190as relevant application approval met 4 note clause 35 4 part 36 11 part inconsistent national employment standard ne provides restriction otherwise provided ne given national employment standard precedence clause clause 4 1 agreement satisfied beneficial entitlement ne prevail 5 communication electrical electronic energy information postal plumbing allied service union australia cepu bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 note agreement cover organisation 6 agreement approved accordance withs 54of act operate 20 september 2019 nominal expiry date agreement 31 march 2021 deputy presidentprinted authority commonwealth government printer ae505267pr712367 annexure

McMahon Services Australia Pty Ltd [2022] FWCA 3694 (21 October 2022).txt

mcmahon service australia pty ltd 2022 fwca 3694 21 october 2022 last updated 24 october 2022 2022 fwca 3694fair work commissiondecisionfair work act 2009s 185 enterprise agreementmcmahon service australia pty ltd ag2022 4220 mcmahon service australia pty ltd industrial service enterprise agreement 2022building metal civil construction industriesdeputy president saundersnewcastle 21 october 2022application approval mcmahon service australia pty ltd industrial service enterprise agreement 2022 1 application made approval enterprise agreement known themcmahon service australia pty ltd industrial service enterprise agreement 2022 agreement application made pursuant tosection 185of thefair work act 2009 act agreement single enterprise agreement 2 employer provided written undertaking undertaking copy undertaking attached annexure decision satisfied effect accepting undertaking likely cause financial detriment employee covered agreement b result substantial change agreement 3 view person fair work commission know bargaining representative agreement sought relation undertaking 4 pursuant tosubsection 190 3 act accept undertaking undertaking taken term agreement 5 subject undertaking satisfied requirement ofsections 186 187 188and190of act relevant application approval met 6 agreement approved accordance withsection 54of act operate 28 october 2022 nominal expiry date agreement 20 october 2026 deputy presidentprinted authority commonwealth government printer ae517895pr747108 annexure

Amcor Flexibles (Australia) Pty Ltd T_A Amcor Flexibles Australasia - Preston [2017] FWCA 5920 (10 November 2017).txt

amcor flexibles australia pty ltd amcor flexibles australasia preston 2017 fwca 5920 10 november 2017 last updated 14 december 2017 2017 fwca 5920fair work commissiondecisionfair work act 2009s 185 enterprise agreementamcor flexibles australia pty ltd amcor flexibles australasia preston ag2017 3337 amcor flexibles australia preston enterprise agreement 2016graphic artscommissioner wilsonmelbourne 10 november 2017application approval amcor flexibles australia preston enterprise agreement 2016 1 application made approval enterprise agreement known theamcor flexibles australia preston enterprise agreement 2016 agreement application made pursuant tos 185of thefair work act 2009 act made amcor flexibles australia pty ltd amcor flexibles australasia preston agreement single enterprise agreement 2 applicant provided written undertaking copy undertaking attached annexure satisfied undertaking cause financial detriment employee covered agreement undertaking result substantial change agreement 3 subject undertaking referred satisfied requirement ofss 186 187 188and190as relevant application approval met 4 automotive food metal engineering printing kindred industry union known australian manufacturing worker union amwu bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 note agreement cover organisation 5 agreement approved accordance withs 54of act operate 17 november 2017 nominal expiry date agreement 31 december 2018 commissionerprinted authority commonwealth government printer price code g ae426060pr597640 annexure

24 Hour Fitness, Inc [2001] ATMO 121 (10 December 2001).txt

24 hour fitness inc 2001 atmo 121 10 december 2001 last updated 15 february 2002trade mark act 1995decision delegate registrar trade mark reasonsre trade mark application number788963 18 25 41 24 hour fitness name of24 hour fitness inc backgroundon 19 march 1999 24 hour fitness inc company incorporated state california applied trade mark 24 hour fitness class 18 25 41 examination stage initial objection raised relation class however objection class 18 25 good later withdrawn due course trade mark office tmo maintained objection unders 41of thetrade mark act 1995in relation class 41 service service described application follows health club service instruction field health physical exerciseprimarily tmo objected application basis trade mark 24 hour fitness lacked necessary inherent adaptation distinguish required bys 41 specifically trade mark applied service question one trader likely without improper motive need use relation service absence requisite inherent adaptation applicant also failed provide sufficient evidence use warrant application ofs 41 5 6 result applicant invited request subsequently granted hearing matter came hearing 22 october 2001 sydney applicant represented mr skelly evidencethe applicant relies statutory declaration anthony j bakos senior vice president general counsel applicant dated 23 may 2001 way summary mr bakos set history applicant past trade mark usage various trade mark registration advertising method expenditure united state revenue generated united state period 1995 2000 mr bakos also state applicant embarked upon expansion program early 1999 resulted acquisition operation health club many area europe asia however expansion australia date important note point applicant already successfully registered trade mark image 791893mr bakos providing information trade mark usage advertising expenditure differentiate applied mark graphical mark set advertising press exhibit however contain mix use word mark graphical mark however also fair say exception newspaper article word 24 hour fitness always accompanied graphical mark legislationsection 41reads 41 trade mark distinguishing applicant good service 1 purpose section use trade mark predecessor title applicant registration trade mark taken use trade mark applicant note 1 forapplicantandpredecessor titleseesection 6 note 2 predecessor title authorised another person use trade mark authorised use trade mark person taken use trade mark predecessor title seesubsection 7 3 andsection 8 2 application registration trade mark must rejected trade mark capable distinguishing applicant good service respect trade mark sought registered designated good service good service person note forgoods personandservices personseesection 6 3 deciding question whether trade mark capable distinguishing designated good service good service person registrar must first take account extent trade mark inherently adapted distinguish designated good service good service person 4 registrar still unable decide question following provision apply 5 registrar find trade mark extent inherently adapted distinguish designated good service good service person unable decide basis alone trade mark capable distinguishing designated good service registrar consider whether combined effect following extent trade mark inherently adapted distinguish designated good service ii use intended use trade mark applicant iii circumstance trade mark distinguish designated good service applicant b registrar satisfied trade mark distinguish designated good service trade mark taken capable distinguishing applicant good service good service person c registrar satisfied trade mark distinguish designated good service trade mark taken capable distinguishing applicant good service good service person note 1 forgoods personandservices personseesection 6 note 2 use trade mark predecessor title applicant authorised use trade mark another person taken use trade mark applicant see subsection 1 7 3 andsection 8 6 registrar find trade mark inherently adapted distinguish designated good service good service person following provision apply applicant establishes extent applicant used trade mark filing date respect application distinguish designated good service applicant trade mark taken capable distinguishing designated good service good service person b case trade mark taken capable distinguishing designated good service good service person note 1 trade mark inherently adapted distinguish good service mostly trade mark consist wholly sign ordinarily used indicate kind quality quantity intended purpose value geographical origin characteristic good service b time production good rendering service note 2 use trade mark predecessor title applicant authorised use trade mark another person taken use trade mark applicant see subsection 1 7 3 andsection 8 discussings 41inblount v registrar trade mark 1998 fca 440 1998 40 ipr 498 504 505 justice branson observed registrar entitled find trade mark inherently adapted distinguish designated good service good service person capable basis alone distinguishing designated good service b trade mark extent inherently adapted distinguish designated good service good service person c trade mark extent inherently adapted distinguish designated good service good service person uncertainty basis alone trade mark actually capable distinguishing designated good service finding result different consequence registrar reach conclusion must accept application accordance withsubsection 33 1 act registrar reach conclusion b provision paragraph b ofsubsection 41 6 apply finally registrar reach conclusion c provision paragraph b c ofsubsection 41 5 apply applying test taking step turn must first determine whether applied trade mark inherently adapted distinguish good applicant trader requires determine whether word 24 hour fitness inherent ability set service applicant apart trader must determine whether word 24 hour fitness word trader similar service unlikely wish use relation service per kitto j inclark equipment co v registrar trade mark 1964 hca 55 1964 111 clr 511at 514 applied service taken account clear word descriptive fitness centre open 24 hour day confirmed applicant documentary evidence even different interpretation applied instance use facility fit time provide facility enable tackle task daily life interpretation remain descriptive accordingly fall foul direct description test set case asregistrar trade mark v muller 1980 hca 35 1980 31 alr 177andburger king corp v registrar trade mark 1973 hca 15 1973 128 clr 417 expression trader fitness service likely want need use without improper motive particularly true trader open fitness facility open 24 hour wish advertise ability assist patron achieve whole life fitness second issue relation mark mr skelly submitted whether actual composition contracted expression render inherent ability distinguish word form complete phrase one would normally expect example 24 hour fitness centre 24 hour fitness gym 24 hour fitness club therefore mr skelly submits trader likely need use theapplied forphrase accept mr skelly general point believe go far enough recognises commercial reality presuming applicant successful application granted registration 24 hour fitness registration grant potentially perpetual enforceable exclusive right use word relevant class even word used one longer phrase already referred trader would perhaps inadvertently using trade mark applicant worst would leave open infringement passing action best would providing free advertising applicant either consequence would unfairly impinge trader right use word ordinarily descriptive service exactly consequence thats 41seeks avoid finally mr skelly submitted unlikely trader would wish use phrase unlikely gym would open 24 hour day respect test event factually incorrect experience aware least one 24 hour gym melbourne suspect others even unreasonable expect 24 hour gym open future trader unfairly restricted advertising service reason registration applied trade mark similarly satisfied mr skelly correct asserting applicant obtained registration graphical mark trader used expression 24 hour fitness describe service would improper motive infringing manner applicant chooses take common phrase basis graphical mark run risk others use word describe service occurred present case accordingly satisfied applied trade mark inherent capacity distinguish given must determine whether provision ofs 41 6 apply section 41 6 read 6 registrar find trade mark inherently adapted distinguish designated good service good service person following provision apply applicant establishes extent applicant used trade mark filing date respect application distinguish designated good service applicant trade mark taken capable distinguishing designated good service good service person b case trade mark taken capable distinguishing designated good service good service person applicant provided evidence use trade mark overseas admission trade mark used australia mr skelly pointed evidence showed extensive advertising internet presence sponsorship united state enough satisfy applicant trade mark known australian consumer extent applicant service advertised applied trade mark distinguished consumer mind comment judge lockhart jconagra inc v mccain food aust pty ltd 1992 fca 159 1992 23 ipr 193per lockhart j 233 4 helpful determining whether reputation may spread overseas due advance technology honour full comment must taken account importantly confirms relevant party must provide evidence reputation fact spread insufficient merely point mean reputation might spread without also showing consumer actually exposed relevant good service reputation made way relevant jurisdiction justice lockhart comment follows real question whether owner good established sufficient reputation respect good within particular country essentially question fact still necessary plaintiff establish good requisite reputation particular jurisdiction reputation within jurisdiction may proved variety mean including advertisement television radio magazine newspaper within forum may established showing constant travel people country forum people within forum whether resident person simply visiting country exposed good overseas owner see example mode orkinandmidas accordingly incumbent upon applicant provide evidence show applied trade mark known australia associated service mind australian consumer without evidence applicant cannot establish trade mark become distinguished prior overseas use evidence finally evidence applied trade mark ever used applicant advertising material annexed declaration mr bakos applied trade mark always used conjunction graphical mark many example applied trade mark located commentary term condition portion advertisement frequently word appear trade mark merely name applicant 24 hour fitness identify applicant website24hourfitness com see instance advertisement included exhibit jb 3 use particularly play secondary role behind graphical mark assist applicant satisfyings 41 6 consequence absence evidence satisfied element ofs 41 6 made wrong trade mark inherent capacity distinguish 41 5 would come play however reason set would still satisfied ground made section 41 5 read 5 registrar find trade mark extent inherently adapted distinguish designated good service good service person unable decide basis alone trade mark capable distinguishing designated good service registrar consider whether combined effect following extent trade mark inherently adapted distinguish designated good service ii use intended use trade mark applicant iii circumstance trade mark distinguish designated good service applicant b registrar satisfied trade mark distinguish designated good service trade mark taken capable distinguishing applicant good service good service person c registrar satisfied trade mark distinguish designated good service trade mark taken capable distinguishing applicant good service good service person relation consideration ii iii in 41 5 note evidence use australia date applicant provided declaratory evidence intends expand australia documentary evidence support documentary evidence might establish legal advice commissioned investigate regulatory requirement australia marketing plan compiled market survey undertaken determine viability proposed venture material satisfied fact firm fixed intention ever move australian market applicant also referred successful registration five country united state canada singapore chile japan might relevant consideration term ofs 51 5 iii however applicant failed provide evidence indicated basis registration allowed nothing indicate relevant application accepted basis past proposed use trade mark relevant jurisdiction similarly merely presenting list country registration allowed without also providing list country application made together indication whether currently examination rejected unsatisfactory prepared give potentially incomplete evidence great weight reason satisfied trade mark distinguish applicant service requisite degree therefore 41 5 b made conclusioni satisfied ground ofs 41have made applicant see reason allow application far relates class 41 service accordingly subject expiry relevant appeal period payment necessary fee direct application may proceed registration relation class 18 25 application may proceed registration relation class 41 geoffrey purvis smithhearings officertrade mark hearings10 december 2001

V02_14789 [2003] RRTA 150 (20 February 2003).txt

v02 14789 2003 rrta 150 20 february 2003 refugee review tribunaldecision reason decisionrrt reference v02 14789country reference east timortribunal member genevieve hamiltondate decision made 20 february 2003place melbournedecision tribunal affirms decision grant protection visa backgroundthe applicant two brother arrived australia mid 1990s lodged application protection class az visa department immigration multicultural affair themigration act 1958 act delegate minister immigration refused grant protection visa applicant applied review decision legislationunders 65 1 act visa may granted decision maker satisfied prescribed criterion visa satisfied subsection 36 2 act force 1 october 2001 provided criterion protection visa applicant visa non citizen australia australia protection obligation refugee convention amended refugee protocol amendment tos 36 2 introduced 1 october 2001 apply present application refugee convention refugee protocol defined mean 1951 convention relating status refugee 1967 protocol relating status refugee respectively 5 1 act criterion grant protection class az visa set inpart 866of schedule 2 themigration regulation 1994as force immediately 20 october 1999 provision family member derivatively entitled protection visa alternative basis member family unit applicant found refugee seemunkayilar v mima 1997 fca 1333 1998 49 ald 588at 592 593 mijoljevic v mima 1999 fca 834at 14 18 dranichnikov v mima 2001 fca 769 2001 109 fcr 397at 22 23 mima v shtjefni 2001 fca 1323at 17 however applicant must satisfy remaining criterion australia party refugee convention refugee protocol generally speaking protection obligation people refugee defined definition refugee article 1a 2 convention relevantly defines refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return high court considered definition number case notablychan yee kin v minister immigration ethnic affair 1989 hca 62 1989 169 clr 379 applicant anor v minister immigration ethnic affair anor 1997 190 clr 225 minister immigration ethnic affair v guo anor 1997 191 clr 559 chen shi hai v minister immigration multicultural affair 2000 hca 19 2000 201 clr 293 minister immigration multicultural affair v haji ibrahim 2000 hca 55 2000 204 clr 1 andminister immigration multicultural affair v khawar 2002 187 alr 574 section 91r 91s act qualify aspect article 1a 2 purpose application act regulation particular person four key element convention definition first applicant must outside country second applicant must fear persecution 91r 1 act persecution must involve serious harm applicant 91r 1 b systematic discriminatory conduct 91r 1 c expression serious harm includes example threat life liberty significant physical harassment ill treatment significant economic hardship denial access basic service denial capacity earn livelihood hardship denial threatens applicant capacity subsist 91r 2 act high court explained persecution may directed person individual member group persecution must official quality sense official officially tolerated uncontrollable authority country nationality however threat harm need product government policy may enough government failed unable protect applicant persecution persecution implies element motivation part persecute infliction harm people persecuted something perceived attributed persecutor however motivation need one enmity malignity antipathy towards victim part persecutor third persecution applicant fear must one reason enumerated convention definition race religion nationality membership particular social group political opinion phrase reason serf identify motivation infliction persecution persecution feared need besolelyattributable convention reason however persecution multiple motivation satisfy relevant test unless convention reason reason constitute least essential significant motivation persecution feared 91r 1 act fourth applicant fear persecution convention reason must well founded fear add objective requirement requirement applicant must fact hold fear person well founded fear persecution convention genuine fear founded upon real chance persecution convention stipulated reason fear well founded real substantial basis merely assumed based mere speculation real chance one remote insubstantial far fetched possibility person well founded fear persecution even though possibility persecution occurring well 50 per cent addition applicant must unable unwilling fear avail protection country country nationality whenever protection applicant country available ground based well founded fear refusing person concerned need international protection refugee whether applicant person australia protection obligation assessed upon fact exist decision made requires consideration matter relation reasonably foreseeable future claim evidencethe tribunal department file includes protection visa application department decision record applicant gave oral evidence tribunal protection visa application first named applicant hereafter applicant said born dili speaks timorese hakka speaks read writes tetum indonesian ethnic group timorese chinese follows major religion shop assistant born portuguese citizen time application indonesian citizen travelled australia indonesian passport issued dili mid 1990s lived address dili since early 1980s 12 year education became shop assistant left east timor legally pay bribe get passport applicant said left indonesia e east timor feared safety feared interrogation beating scared caught informed feared accused sort thing would continue hassled involvement student group want free timor political view could expressed without persecution indonesian government fully supported military east timor nowhere turn protection letter support application first applicant said indonesian committed human right abuse since invasion one timorese could turn protection allowed express view even peacefully people beaten tortured murdered many disappeared applicant believed east timor independent democratic election fully supported worked goal view firm time 15 year old senior high joined student group led named person would discus political hope way opposing indonesian authority second year talking group friend school saw military approach tried run away applicant caught severely beaten taken military headquarters interrogated anti indonesian asked friend talking said talking school matter accused lying beaten kicked treatment continued kept small room three day accused supporting anti indonesian group made forced labour release report week month finished school applicant said kept contact group member work early 1990s military came house arrested detained interrogated headquarters asked attended santa cruz demonstration said work abused said lying one began punch kick put small room three day release report week month november 1994 attended demonstration commemorating santa cruz massacre military came everybody fled applicant said father two brother also mistreated indonesian military parent still grieved loss daughter taken indonesian young age seen since protection visa application second named applicant hereafter called second applicant said born dili speaks timorese hakka ethnic group timorese chinese follows major religion occupation student indonesian citizen lived e east timor coming australia indonesian passport issued dili 1994 lived address dili since early 1980s 12 year education left legally pay bribe get passport second applicant said left indonesia feared beating interrogation committed opposing indonesian rule east timor military would continue hassle someone list suspect would arrested tortured every opportunity especially involved anti indonesian group indonesia ruthless dealing east timorese military would allow people express political view caught working independence would beaten tortured disappear basic human right permitted opposition tolerated avenue protection letter support application second applicant said afraid indonesian military early age junior high school joined student group whose aim bring free democratic east timor 11 group head named person would meet secretly another boy house sometimes beach every fortnight second applicant also gave money support one day school standing others discussing political matter approached military asked talking could even answer soldier started beating kicking accused liking indonesian took military headquarters interrogated second applicant asked friend talking said caught anti indonesian activity would killed kept day senior school joined another group 14 student led named person also good friend named involved santa cruz demonstration three four day later military came second applicant home arrested took police station immediately started punch kick taken another room name read asked knew people answered name belonged friend asked friend said know started punch kick continued interrogate used electric baton kept number day threatened would disappear involved release report week 6 month second applicant married another asylum seeker recently time application applicant parent sibling indonesia many relative australia applicant provided another statutory declaration described family situation indonesian invasion described harsh experience school result indonesian occupation essentially reiterated claim made earlier added detention given electric shock suffered severe cut bruising brother continued participate anti indonesian activity australia sure indonesian authority aware applicant provided third statutory declaration summarised experience indonesian rule said sibling adapted australian life strong connection australia want separated many relative australia chinese ethnicity afraid went back timor would face retribution reprisal fled going tough risk would heightened ethnicity sister married indonesian official another sister married indonesian would also seen betrayal applicant feared would resented persecuted consequence cousin killed timorese dili late 1990s applicant feared would also risk applicant said feared job opportunity housing family member east timor second applicant made statutory declaration along similar line brother said cousin killed east timor working shopassistant told employer timorese people stealing shop beaten died injury second applicant stated married bought house brother employer testimonial applicant indicate work place younger sibling whose application withdrawn covering letter applicant adviser summarises claim submits continuing fear persecution well founded applicant originally applied younger sibling dependant subsequently made claim however later withdrew application granted close tie visa adviser made submission review stage applicant adviser also made submission review stage submission reiterates applicant earlier claim argument would subjected harassment attack due ethnicity membership particular social group fear harassed outside country extended period also well founded submission said un conceded could assure safety resident east timor justice would done victim crime furthermore militia west timor continued threaten stability east timor raising question effectiveness durability political change east timor applicant victim community violence convention reason could real expectation obtaining police protection police force problem unable establish law order community submission describes destruction occurred 1999 outlined basic political development since including ongoing extreme poverty country dependence international aid security submission address legal principle concerning nationality arguing applicant national east timor well foundedness applicant fear context east timor attainment independence question whether material change adviser argued citing hathaway refusing refugee status basis change circumstance required change politically substantial e old power structure longer exists effective resulting genuine ability willingness protect refugee durable transitory adviser argued change east timor necessarily effective given harm anticipated applicant would inflicted non state actor east timorese government would merely posse willing able operate system machinery detection prosecution punishment persecution east timor justice situation incomplete resourced inexperienced barely functioning citing amnesty international un report partial law order vacuum fostered growth violent gang vigilante group ongoing instance violence minority group chinese timorese particular vulnerable intimidation violence citing un amnesty international report adviser also queried durability change withdrawal international presence east timor would result instability given evidence armed militia still pose threat cite report continued militia activity finally adviser noted humanitarian concern regarding applicant country informationtimorese chinese targeted selective killing aftermath indonesian invasion indonesian perceived link marxist fretilin 1965 coup indonesia involving chinese 500 chinese killed first day invasion chinese could afford leave population reduced 20 000 1974 thousand july 1985 cx4048 paper ci dated 14 march 1994 minority chinese supported integration east timor indonesia precisely massacre chinese indonesia 1965 political situation timorese ethnic chinese year indonesian occupation ambiguous delicate trying steer neutral path opposing force attracted hostility side certainly chinese actively supporting fretilin 10 fretilin according dfat cable ja1264 dated 30 september 1993 cisnet reference cx3511 consequently chinese among sometimes arrested detained activity family member would constant scrutiny majority chinese shared timorese religion catholicism power general viewed indonesian suspicion potential challenge indonesian rule cable hand since invasion chinese strongly feared fretilin fretilin open anti chinese rhetoric consequently would often placate fretilin material way e g food would give money want empower fretilin stillborn nation bill nicol 1978 cx3510 occupation dfat thought probably giving money indonesian military commercial activity ja1264 1992 dfat reported view chinese general engaged serious political activity may experience passive racism would relative economic well dfat discussed situation chinese icrc red cross involved tracing resettlement activity east timor source dfat clearly thought sympathetic chinese asylum applicant claim said chinese sometimes given hard time authority even though likely keep head ethnic timorese non javanese often questioned movement chinese felt future overall threatening atmosphere including santa cruz massacre although participate demonstration leading incident harder line taken occupying force since change command early 1992 icrc experience resettling farmer including ethnic chinese came suspicion supplied food fretilin indonesian happy let people leave east timor would let high profile activist leave cx3500 cable ja108413 dated 30 november 1992 ja1264 noted indonesian rule obtaining travel document leave east timor could hindered range manufactured reason would overcome common indonesia payment special commission gratuity e bribe 5 may 1999 indonesia portugal signed agreement endorsed un allow people east timor vote independence ballot took place 30 august nearly 99 population voted 78 5 percent opted independence pro indonesian militia proceeded campaign terror begun vote belatedly international community sent multinational force restore peace october un security council set transitional administration untaet run country organise election prepare east timor independence august 2001 election considered free fair held new 88 member constituent assembly draft constitution fretilin poll taking 55 seat constitution adopted assembly february 2002 april presidential election held 86 eligible population voting xanana gusmao 83 vote 20 may 2002 east timor became independent cx64770 chronology east timor bloody road independence 17 may 2002 reuters c unhcr medium relation pi geneva september 2002 became 191st member united nation http news bbc co uk 1 hi world asia pacific 1504243 stm general human right situation east timor described united state department state country report human right practice 2001 released bureau democracy human right labor march 4 2002 east timor extremely poor territory two third three fourth population 775 000 person engaged subsistence agriculture asian development bank year estimated per caput gross domestic product gdp approximately 452 estimated 70 80 percent east timor infrastructure damaged severely systematic scorched earth campaign indonesian military militia force conducted september 1999 withdrew territory year reconstruction proceeded slowly majority population basic shelter sufficient food supply low level commercial activity continued much served large foreign presence territory rural agricultural economy recovered significantly unemployment remained high urban area coffee remained territory significant export falling world price domestic export tax hindered export untaet authority repealed export tax may july east timor concluded agreement australia revenue potentially lucrative timor gap oil gas region located water east timor australia however timor gap expected economically productive 5 10 year property ownership dispute lack comprehensive commercial code hinder investment related long term development urban unemployment wage price inflation remained significant problem observer believe east timor remain heavily dependent foreign assistance foreseeable future untaet generally respected human right east timorese arrival interfet force withdrawal indonesian force september 1999 largely brought end decade long pattern numerous serious human right abuse indonesian authority east timorese ally however many serious problem remained east timorese indonesia backed militia based west timor indonesia time crossed east timor threatened robbed attacked occasionally killed local villager eight militia incursion year militia personnel killed east timor clash un pkf one indonesian soldier dressed civilian attire killed un pkf july reportedly fired across border east timor isolated attack instance harassment returning refugee suspected former militia member national council timorese resistance sponsored security group time involved abuse vast majority prison population composed pretrial detainee despite explicit protective regulation however december number pretrial detainee serious ordinary crime greatly reduced previous year occasion independence judiciary questioned judiciary resource remained extremely inadequate dissolution month proceeding august election cnrt continued benefit close relationship untaet time allegedly misused political influence employment advantage end year 192 592 internally displaced person idp returned east timor west timor area indonesia many others remained west timor year government indonesia announced would end aid refugee camp west timor revoked refugee status individual remaining however done year end domestic violence woman significant problem customary practice discriminate woman year end child returned school however educational infrastructure significantly improved since september 1999 suffered inadequate facility poorly trained teacher lack educational material protestant muslim occasionally harassed march mob burned mosque baucau ethnic chinese businessmen faced extortion harassment non portuguese speaker reported discrimination government hiring local leader sometimes forced suspected militia member returning west timor indonesia engage compulsory labor past unconfirmed report trafficking woman child indonesia east timor ethnic chinese businessmen subjected extortion harassment time element reportedly associated cnrt accuses chinese businessmen make le 1 percent population among thing financially backing rival group persistent prominent concern human right assessment government major ngo acknowledged un quality nascent justice system east timor best description problem contained amnesty international report east timor justice past present future ai index asa 57 001 2001 dated 27 07 2001 2002 annual report covering event 2001 amnesty summarised situation east timor follows new regulation adopted untaet legal aid well prison police service signalled progress establishing legal framework protect human right however important legislation drafted legislation dating occupation indonesia fell short international human right standard reviewed provision untaet regulation transitional rule criminal procedure conform human right standard also amended end year one east timor four district court fully functioning ruling always consistent human right standard lack capacity inexperience within public defender service meant case detainee access lawyer week month judicial independence threatened direct interference working court including political official incident physical threat member judiciary code ethic judiciary drafted yet adopted effective independent impartial judicial overview mechanism established effort resolve problem unlawful detention resulting expired detention order partially successful lack confidence formal criminal justice system contributed reliance alternative non judicial mechanism including traditional law crime rape domestic violence among resolved unregulated process without guideline effective monitoring practice applied inconsistently vulnerable group risk discrimination human right abuse legal status minority group muslim ethnic chinese community resolved continued risk discrimination including violent attack baucau mosque destroyed disturbance march amnesty mentioned right ethnic chinese always similarly brief general fashion 2001 report included following returning refugee member minority group muslim ethnic chinese particular risk asa 57 005 2000 dated 29 08 2000 east timor building new country based human right stated follows report also received intimidation harassment people belonging ethnic chinese community including business people subjected threat extortion 2001 world report human right watch included following chapter east timor http www hrw org wr2k1 asia etimor html accessed 7 february 2003 new east timor free human right violation indonesian businesspeople ethnic chinese background faced threat extortion gang apparently control cnrt leader threat became particularly pronounced riot dili sport stadium april 30 two businessmen accused financially backing group seen opposed cnrt evidence effect ever produced east timorese ethnic chinese also forced pay protection money gang linked local leader 2002 human right watch report mention harm east timorese chinese http www hrw org wr2k2 asia5 htmlaccessed 7 february 2003 instance attack muslim year quickly condemned east timorese untaet official january 1 2 2001 stone thrown muslim living nur mosque dili march 7 mosque baucau destroyed likewise 2003 report hrw mention difficulty east timorese chinese specifically report following http www hrw org wr2k3 asia5 html accessed 7 february 2003 uncertain legal status habitual resident ethnically non timorese resident lived east timor five year directly proceeding popular consultation became issue several time year following threat returnee indonesian family fled forcibly removed east timor indonesian territory following referendum 1999 individual received legal status constitution although draft citizenship bill contained provision would enable long term non timorese resident stay country ethnic timorese returned indonesia 2002 generally well received lower expected level intimidation violence toward news report rather early untaet day describes precisely situation ethnic chinese draw fairly clear distinction treatment timorese chinese indonesian chinese cx72023 south china morning post saturday 5 august 2000 east timor chinese businessmen threatchinese businessmen trying establish east timor economy become target hostility extortion local community chinese starting profitable wholesale retail supply operation ran last year independence vote face strong opposition indigenous east timorese feel early indonesian chinese return past relationship former jakarta regime indonesian businessmen dili helping soldier kill u giving food money coming back soon people hate said east timorese businessmen akui leong associated national council timorese resistance cnrt east timor umbrella political organisation chinese businessmen came east timor portuguese colonial ruler granted exclusive licence run import wholesale business practice continued indonesian regime many chinese business allied jakarta military machine protection process reconstruction slowly change face dili systematically destroyed september retreating indonesian army ethnic chinese shop selling everything motorbike food processor flourishing owner report gang youth associated timorese political group regularly visit premise intimidate demand money give money give u problem come drink beer pay threaten u said sebastian east timorese chinese businessman returned dili reopen family shop sebastian said allowed speak indonesian indonesian chinese employee dangerous stay even dangerous seen road said citing intense competition job amongst east timorese inflaming hostility resentment indonesian chinese business community reached peak april 30 two indonesian chinese ordered leave country cnrt president xanana gusmao blamed inciting riot cnrt leader later told businessmen could return continue face difficulty operating dili indonesian chinese accused undercutting local business illegally importing good surabaya indonesian west timor duty must paid good coming across land border west timor report indonesian businessmen bribing indonesian soldier avoid indonesian businessmen give u chance set business better supply sell cheaper anything said akui leong mr leong ethnic chinese regarded pure timorese community support underground resistance movement indonesian analyst worry chinese businessmen like mr leong could exploit hostility indonesian chinese secure market local distinguish ethnic chinese long time indonesian chinese said one western analyst surabaya chinese undercutting price east timorese chinese want may seem like ethnic problem actually economics australian department foreign affair trade produced number assessment situation east timor september 1999 relevant applicant claim country information report cir 92 00 dated 28 02 00 cx40457 security human right east timor dfat saidthere apparent discrimination east timorese authority community individual based place foreign residence number individual resided long term australia portugal indonesia assumed senior civil political position community without apparent discrimination prejudice nationality returnees travel document including indonesian regarded east timorese community national council timorese resistance cnrt relevant factor number east timorese official continue use indonesian passport primary travel identification document current low threat environment untaet security authority capable providing effective protection throughout east timor risk east timorese returning australia originally left country fear indonesian perhaps east timorese militia activity currently remaining practical militia indonesian military threat east timor except oecussi enclave possibly sparsely populated area close west timor border ethnic chinese return east timor likely face different circumstance treatment compared east timorese reason instance reported untaet last two month stone thrown ethnic chinese residence shop dili however motivation stone thrower unclear seems low intensity antagonism mostly among unemployed youth businessmen display wealth ethnic chinese speak tetum originate part indonesia mostly kupang atambua surabaya possible chinese perceived indonesian economic link indonesian military local business contact indicated chinese business people cautious atmosphere however number east timorese indonesian chinese returned east timor range chinese business businessmen common apparent dili australian mission untaet unaware official unofficial policy among cnrt community official discriminate ethnic chinese basis race cnrt leadership made formal informal statement encouraging ethnic chinese invest build business east timor cx43055 situation update east timor situation ethnic chinese cir 354 00 dated 30 06 00 dfat said absence east timor indonesian rule time august ballot reason harassment individual east timorese harassment tends result specific political economic factor regard ethnic chinese east timor since october 1999 number arrived returned indonesia australia country open reopen business unable specific precise number indonesian chinese perceived close tni indonesian intelligence indonesian rule harassed many east timorese position political leadership example absent east timor several year case duration indonesian rule reason adverse treatment tend specific example commercial dispute perception previous association tni militia general observation inclination retribution popular justice east timor centre perceived committed last year crime militia member family returning west timor subject harassment customary punishment example beating obligatory labour small number returning militia murdered recent conflict protestant catholic community one district east timor appears flowed local perception protestant community pro indonesia bias stay regular touch unhcr civpol district contact reception returnees unambiguous comparison place kosovo return refugee west east timor remarkably trouble free unhcr claim capacity keep statistic attack returnees certain militia report death hogwash best knowledge two returnees died result revenge attack occurred liquica district rule similar incident might occurred elsewhere appear systematic pattern murder instance returnees militia connection assaulted arrival home village civpol parish priest suai recently confirmed u civpol largely powerless prevent type attack neither resident presence sub district sufficient resource provide permanent protection returnees unhcr alert civpol returnees admitted concern security process guarantee safety several district untaet trying channel community resentment returnees productive channel community service reparation victim informal process apparently working quite well formalised consistent across east timor ethnic chinese community east timor timorese chinese indonesian chinese prominent retail sector economy ethnic chinese business owner target social jealously although restricted chinese specific ethnic group see heard general report ethnic chinese business owner threatened protection racket recent month dili baucau specifically two three returned indonesian chinese u line two business owner dili harassed local community recent week harassment appears stemmed local perception business owner previously closely associated tni indonesian intelligence apparatus also report business owner targeted cooperating local protection racket east timorese economy mendicant recovering last year event major long term aid program coming line general economic welfare improving social tension appear lessened somewhat since early new year job local far expression local resentment relative wealth foreigner relatively little crime directed foreigner beyond opportunistic theft heard report personal violence eg assault foreigner based economic motif applies equally ethnic chinese absence east timor five year perceived anti independence perception anti independence sympathy tend deeper specific base many east timorese returned still returning long absence functioning albeit still developing security apparatus east timor including around 1300 international police civpol untaet also currently training east timorese police force effectiveness coverage police fall away rural area civpol member responded effectively minor security incident involving member mission dili cx45826 cir 540 00 dated 17 10 00 dfat saidthere apparent discrimination returnees authority east timor east timorese community based returnees place foreign residence alone community based discrimination flow returnees perceived political orientation particularly perceived pro indonesia orientation returning indonesia suffered discrimination returnees particularly returning indonesia also experienced discrimination based comparative material wealth remained east timor lost much additionally anecdotal evidence east timorese returning diaspora several year absence perceived peer suffered enough although amount persecution systematic discrimination indeed current political leadership member diaspora discrimination ethnic chinese east timor although exact cause vary cannot described systemic consistent economic disparity one cause several local business owner ethnic chinese said non ethnic chinese business owner also subject harassment intimidation indonesian ethnic chinese also harassed due local perception affiliation indonesian government official discrimination ethnic chinese east timor case discrimination returnees west timor although degree discrimination related returnees particular background eg militia background approximately 170 000 east timorese returned west timor last year caused little instability within receiving community occasional report community resentment relative material wealth returning west timor returnees known perceived militia beaten small number related murder untaet imprisoned many known committed serious crime 1999 pending trial east timor court discrimination small local muslim community waned earlier year many member community returned east timor indonesia much discrimination local muslim flow perception community indonesian untaet human right political staff ngo active mediating tension muslim community non muslim dili mosque longer protected razor wire permanent police presence report harassment muslim outside dili resident south dili threatened burn local mosque earlier year also discrimination east timorese protestant east timor region muslim appears flow popular perception protestant community pro indonesia stance cx61411 cir 18 02 17 01 02 country human right update dfat said since 1999 core focus united nation presence assist development national institution law administrative structure including area human right currently involved human right training institution building task ahead immense time fruit endeavour fully evidence main target human right development east timor police service prison service judiciary civil society appointment new police commissioner canadian november 2001 augur well un civilian police civpol police commissioner told post committed improved mentoring east timor police personnel development service middle financial management aware current evidence allegation pointing suggesting systemic persecution group individual ideological ground example police investigation november 2001 incident baucau bobonaro dili involving individual political affiliation found political basis incident similarly incident burning mosque baucau mid 2001 given rise ethnic ideological religious violence rather evidence continuation ideological tolerance witnessed august 2001 constituent assembly election microcosm perhaps best reflected courtesy observed member constituent assembly since began drafting constitution september 2001 despite going significant difference member ideological viewpoint post understands east timor authority working actively resolve issue relating loss land property september 1999 group indonesian muslim currently living mosque dili suburb kampung alor east timor press reported 13 july 2001 201 member community elected become east timor citizen also understand policing authority acted quickly response community complaint christmas day 2001 allegedly harassed youth throwing stone onto roof mosque also evidence organised harassment numerous chinese trader east timor seen daily basis going freely business report vary frequency act retribution returnees incident reported however consistently described low level ephemeral directed mainly former militia returning west timor evidence suggest significant rejection community returnees although noted case low level retribution also instance aware returnees denied right employment education service said important recognise limited opportunity area fact virtually east timorese suffer paucity generally reasonable stability east timor anticipated much war weariness country militia element currently west timor responsible past human right abuse lacking resource support key militia leader also considering return east timor entail work crtr also significantly assist reintegration stability also aided east timor police service continues develop cx71018 cir 365 02 dated 05 12 02 dfat saidthe east timorese authority willing provide state protection person feel threatened east timor authority aided presence agency unhcr iom however due drawdown agency district unmiset human right officer commonly engaged process negotiating safety returnees local community monitoring ongoing well due limited capacity justice system east timor prosecutor find difficult ensure attack returnees fully investigated prosecuted number un report also address issue raised applicant claim cx43557 security council briefing 27 june 2000 sergio vieira de mello special representative secretary general untaet saidwhile law order situation remains relatively calm concerned attack minority community namely muslim ethnic chinese protestant targeting community often appears le religious racial political economic focus perception minority unduly close indonesian authority one chinese woman colleague spoken accused supporting indonesian military intelligence told u many chinese caught middle indonesian rule make regular contribution side woman dilemma unique rather product tumultuous time east timor recently experienced highlight need mature thinking deal wound past untaet working local community protection minority meeting top east timorese political church leader ensure message tolerance frequently expressed public statement becomes rhetorical refrain report security council untaet dated 26 july 2000 2000 738 un secretary general describing development democratic political group process east timor stated follows regrettably disturbing case intimidation group party cnrt umbrella describes incident ethnic religious minority also target harassment intimidation 8 june protestant church ermera aileu burned also several attack mosque dili ethnic chinese threatened harassed report go detail effort made untaet counter tendency promoting culture tolerance 2001 719 dated 24 july 2001 secretary general said average 300 crime per month reported half concerned theft personal assault mostly domestic violence criminal investigation completed 80 case mention ethnic chinese specifically report security council untaet dated 17 january 2002 2002 80 secretary general discussing internal security said reported crime rate low mentioned domestic violence e woman child particular concern reported problem return refugee community suspected militia involvement risked harassment development police service constrained insufficient resource justice system faced problem time heavy workload prosecutor office investigating 840 crime committed since november 1999 court delivered 139 verdict trial 2001 briefing security council 30 january 2002 special representative mention minority issue said security situation east timor remains stable border indonesia continues secure sighting militia although unregulated market increasingly problem crime rate increasing east timor police service growing duty admirably nonetheless hardline militia element may still pose long term threat substantial progress establishment operational east timor defence force presence appropriate military component necessary likewise national police force fully deployed un civilian police need remain east timor assist training enforcement report go describe step taken try redress shortcoming justice system describes also design expected continued un support police defence force able stand foot untaet press office reported relevant fact sheet 6 april 2002 security situation east timor stable low incidence crime reported crime rate march 2002 one reported crime per day per 50 000 inhabitant current increase number reported crime attributable widespread public information campaign urging crime reported un policy pro active policing east timor police service target 2 800 officer july 2003 un police would downsized concomitantly gradual increase number skill range east timorese counterpart close observance law order situation social stability report secretary general untaet 2002 432 17 apr 2002 paragraph 39 secretary general reiterated deficiency justice system described national police defence force built said within east timor reported crime statistic remain low however increase traffic accident noticeable increase reported domestic violence case past three month noted concern unofficial security group said step taken address concern veteran situation monitored untaet consider group posed significant threat september 2001 un high commissioner human right produced interim report east timor paragraph 45 stated situation ethnic minority uncertain however paragraph go address uncertain right people born east timor resident east timor 1999 return east timor untaet regulation preceded law citizenship proceeds discus concern muslim state fear returning home due absence protection minority un general assembly 56thsession document number 56 337 final report issued 58thsession commission human right 1 march 2002 document number e cn 4 2002 39 para 60 61 high commissioner said position ethnic religious minority remained concern draft constitution contained special protection minority mentioning issue treatment minority citizen without elaborating complains absence provision non citizen go specifically discus tension east timorese muslim done address unhcr ended refugee status east timorese may 2002 high commissioner said unhcr belief situation normalised longer valid reason remaining refugee come home vast majority east timor refugee returned home without incident unhcr press release 18 may 2002 viahttp www unhcr ch un secretary general first six monthly report security council unmiset dated 6 november 2002 said government sought institute dialogue disaffected group taxi driver student pensioner lawyer veteran conducting demonstration aspect government policy protection human right institutionalised including establishment office provedor human right continued problem functioning court system leading prisoner held prolonged period without trial led disturbance breakout 17 prisoner remained large breakout 193 prisoner august reported crime remained comparatively low case violence involving issue based security group occurred especially west four occasion local police un civpol required perimeter support unmiset military component establish order group appear nationally coordinated pose significant threat national security issue galvanising group high unemployment needed addressed un civpol handed policing responsibility east timorese police service 4 district schedule district police service despite lack resource maintained law order without major incident resource constraint kept gaining confidence respect community served could undermine morale service ability maintain law order external security border control situation continued improve threat militia border criminal activity would eliminated medium term due effort government robust presence unmiset military component intermittent firing vicinity boundary believed activity hunter initiative taken regulate market activity border security situation stable military component could commence drawing east timor free civil politically motivated disorder poor country high unemployment causing resentment december 2002 local police unmiset peacekeeper difficulty subduing riot erupted dili disaffected former guerrilla fighter joined protest student arrest fellow student east timor declares state alert http news bbc co uk 4 december 2002 accessed 5 december 2002 cx71291 cir 375 02 dated 17 12 02 assessment security returnees post riot 4 december dfat said calm returned likely continue near future thatwe aware nothing suggesting east timor protection visa applicant returned australia could target event riot past residence australia people could lead targeting rioter targeting unlikely militia activity west flare sporadically january 2003 masked raider serially attacked village near atsabe 25kms indonesian border attack widely attributed pro indonesia militia member captured member confirmed several people killed first attack border region year http www theage com au 7 january 2003 accessed 7 january 2003 unhcr assessed indonesia policy directing attack east timor may individual west timor still wanted destabilise east timor http www theage com au 25 january 2003 accessed 28 january 2003 however abc reported leaked un report attributed attack kopassus east timorese authority wanted international protection 22 january 2003 http www abc net au accessed 22 january 2003 cx71322 cir 376 02 dated 18 12 02 ratification human right treaty east timor dfat reported 10 december east timor national parliament approved ratification following human right treaty convention international covenant civil political rightsinternational covenant economic social cultural rightsinternational convention elimination form racial discriminationconvention torture cruel inhuman degrading treatment punishment optional protocol international convention civil political right individual complaint hearingthe applicant attended hearing sibling although speak simultaneously course hearing endorsed either expressly passively statement tribunal general summarise hearing referring together applicant applicant said parent asylum sister together younger sibling number sibling permanent residency australia sister married indonesian currently live indonesia married applicant came australia another sister forcibly removed family detail removal deleted accordance s431 act may identify applicant applicant thought married sure later tribunal asked applicant meant saying forcibly taken applicant said parent willing give taken force asked whether knew applicant said contact year lost contact letter went astray tampered tribunal asked whether effort made trace applicant said would like resume contact one could trace regarding initial claim applicant said similarity account due fact brother arrived australia could speak english someone helped make application maintained student suspected disloyalty indonesian regime actively supported pro independence organisation sister marry indonesian official love political reason yet timorese considered disloyal asked feared applicant said east timor unstable despite independence might appear peaceful today knew would happen tomorrow recently riot house shop including foreign owned shop government building burnt police killed student lot people left dili showed situation unsafe government much ability protect applicant particularly applied refugee status abroad hard get work would find even harder applied refugee status abroad situation bad many people died safely country reason would looked bullied timorese people president made lot public speech nobody listened applicant would able go safely sister married indonesian official think support independence movement would stop viewed hostility fact applicant expected threatened treated badly mentioned cousin killed applicant also said australia long time many family member australia many australian citizen want separate want go back east timor friend relative property friend two bought house together applicant child born english speaker wife lot friend relative australia well permanent resident applicant worked hard many year adapted life want start would returned east timor child would face limited life applicant tribunal quoted applicant key extract country information cited tribunal put applicant country information could taken indicate low level harassment extortion chinese business people early day untaet report tapered currently general statement chinese risk concrete information indicating chinese seriously harmed ethnicity extortion appeared economically motivated extent businessmen differentiated convention reason seemed indonesian chinese businessmen target east timorese chinese political affiliation attributed background official discrimination indeed east timor ratified un convention elimination discrimination tribunal put applicant although may resentment appear retribution people returning east timor basis country safety climax independence process returnees risk serious harm militia member suspected militia member tribunal also put applicant appeared serious constraint quality justice east timor local police force still trained legal framework law enforcement institution backed ongoing presence un investigation prosecution occur despite constraint even occur 100 case harm applicant feared would neither inflicted condoned authority given low crime rate general stability would also controllable authority applicant said ethnic chinese different timorese therefore know would happen chinese returned east timor prepared take risk wanted make money applicant would able make living pay extortionist time refuse pay extortionist cause trouble throw stone perhaps burn premise people expected able take good shop even could pay full price east timorese foreign government could protect asset recent riot could ordinary people protected australia issued travel warning army contingent darwin ready intervene since peacekeeping force east timor could really said peace east timorese authority saying thing situation save face give impression problem east timorese independence lot people may returned east timor sort people returning official government one thing indication ethnic chinese would treated adviser said around 1500 people returned east timor would go unnoticed community motif social jealousy may unclear hard verify discrimination occurring ethnic convention related reason people state motif adviser also stressed humanitarian aspect applicant situation finding reasonssection 8 east timorese law citizenship law number 9 2002 dated 5 november 2002 deal original opposed acquired citizenship provides among thing person born east timor parent born east timor whose parent stateless unknown citizenship east timorese citizen based information applicant evidence tribunal find east timorese national tribunal find applicant ethnically timorese chinese tribunal reservation aspect applicant initial claim concerning thing happened lived east timor however tribunal accepts applicant governed brutal occupying force viewed local degree suspicion loyalty lived threatening highly militarised environment accepts applicant left east timor genuine fear risked persecuted also accepts applicant family unwillingly separated one child family although reservation claim removed force occurred indonesian military occupation cause lingering grief tribunal accepts applicant cousin murdered indonesian rule satisfied evidence attacked convention reason inchan scase high court observed although date decision relevant date assessing whether convention test refugee status satisfied circumstance applicant fled country ordinarily starting point ascertaining present status time applicant satisfied relevant test absence substantial material change circumstance point continuation original status bearing mind nature claim made applicant made application tribunal satisfied east timor transition occupied territory formally independent country substantial material effective render longer well founded fear persecution applicant time left east timor based imputed pro independence political opinion country information detailing commitment international community ensuring east timor viability state fact generally stable overall suggests prospect sight indonesia taking east timor notwithstanding continued activity militia element west given applicant ordinary place residence east timor vicinity dili chance rogue pro indonesian agent persecuting applicant could characterised remote real chance thing happening applicant made new claim east timor became independent argued effect risk persecution due chinese ethnicity membership particular social group ethnic chinese sake decision tribunal prepared accept timorese chinese people constitute particular social group east timor additionally argued risk persecution country independence struggle reached bloody climax sake decision tribunal accepts persecution ground could said persecution reason applicant political opinion membership particular social group applicant also argued risk persecution relative indonesian connection including fact sister married indonesian official however tribunal satisfied claimed fear well founded country information indicates early day untaet low level harassment extortion chinese business people harassment took mild form stone throwing concern ethnic chinese risk even harassment clearly tapered life untaet clear extortion economically motivated since ethnic timorese business also targeted extent businessmen differentiated convention reason indonesian businessmen targeted rather timorese chinese political affiliation attributed background another human right concern noted amnesty un human right commissioner related chinese fact born east timor right return wished concrete information indicating ethnic chinese risk serious harm east timor ethnicity despite sweeping statement amnesty international official discrimination indeed authority encouraged chinese return help boost economy east timor ratified un convention elimination discrimination tribunal satisfied applicant face real chance persecution reason chinese evidence support claim people returning australia risk seriously harmed position safety abroad worst violence dfat report expressly disagree claim acknowledging talking people feeling resentment along line tribunal satisfied applicant face real chance persecuted reason evidence people related marriage indonesian official applicant sister married risk seriously harmed reason evidence group said risk serious harm militia member people suspected militia member tribunal satisfied applicant face real chance persecution sister marriage tribunal satisfied factor increase risk applicant seriously harmed reason ethnicity evidence applicant patently pro indonesian despite marriage assessment ability east timorese authority respond criminal complaint concerning civilian perpetrator reinforces tribunal view real chance applicant seriously harmed convention reason one hand commonly acknowledged justice system suffers serious problem including question independence judge inexperience prosecutor backlog case dfat said due overall resource constraint prosecutor find difficult ensure attack returnees fully investigated prosecuted context report also said unmiset concentrating trying prevent attack occurring case group risk ex militia hand crime rate low criminal code police enforcing law prosecutor judge court corrective system crime investigated prosecuted perpetrator convicted proportion case according un report thus appears low crime environment victim crime obtain justice despite limited resource police problem court system evidence protection discriminatorily withheld people sought refugee status abroad convention reason harm applicant may risk would neither inflicted condoned authority controllable authority tribunal satisfied applicant well founded fear persecution east timor within meaning convention conclusionhaving considered evidence whole tribunal satisfied applicant person australia protection obligation refugee convention amended refugee protocol therefore applicant satisfy criterion set 36 2 act protection visa tribunal note applicant extensive family connection australia well adapted living australia engaged community sibling permanent resident australia wish separated immediate family member extended family employed well regarded employer family interest east timor would start without support economy limited opportunity important genuine concern matter tribunal jurisdiction applicant may wish discus adviser take minister decisionthe tribunal affirms decision grant protection visa genevieve hamiltonmember constituting tribunal20 february 2003

DPP v Reid [2013] VCC 701 (21 May 2013).txt

dpp v reid 2013 vcc 701 21 may 2013 last updated 27 august 2013in county court victoriarevisednot restrictedsuitable publicationat geelongcriminal divisioncase cr 13 00226director public prosecutionsvsean reid judge honour judge hampelwhere held geelongdate hearing 21 may 2013date sentence 21 may 2013case may cited dpp v reid seanmedium neutral citation 2013 vcc 701reasons sentence subject catchword legislation cited case cited sentence appearance counselsolicitorsfor dppms flynnoppfor accusedmr b nibbsrobert stary lawyersher honour 1 sean reid pleaded guilty five charge indictment two related uplifted summary charge charge relate spree criminal activity occurring 5th 7 september last year 2 morning 5 september recent model mercedes stolen garage home parked overnight would appear two day possession car drove removed amongst thing two child car seat back car 3 two day later 7 september drove somebody bradley densley car took home place two mr densley home 4 left mr densley home left home returned discovered item stolen playstation console playstation game well assorted clothing shoe entry house forced smashing rear window 5 house searched later 7 september item stolen mr densley bedroom found possession 6 later 7 september stealing item mr densley home involved collision near intersection shannon avenue aberdeen street west geelong 7 agreed summary put wrong hit driver side car travelling straight ahead along shannon avenue force impact caused car hit car hence causing three car collision 8 mr ryan driver ford stolen car ran pulled sitting driver seat recovering immediate effect accident getting ready exchange name address driver vehicle got car got passenger seat said mate wrecked 100 000 car going sort something drive 9 mr ryan initially refused drive away demanded licence phone number handed innocently believing purpose exchanging name address following collision 10 pretended gun pocket using hand indicate gun pocket directed mr ryan drive killed 11 drove threatened saying thing like know work got idea wit drive alleyway directed despite threat making instead drove towards populous area stopped car got 12 made number demand mr ryan hand wallet telephone mr ryan eventually got car frightened threat walked hand 13 got driver side car saying mr ryan taking car tell cop give shit said know live used particularly offensive term making mr ryan appreciate innocent purpose given phone number licence address likely misused frightening manner 14 drove mr ryan car mr ryan went post office nearby assistance called distressed stage able provide real description happened police made arrangement see later 15 friend arrived drive home way home called mr ryan mobile phone number obtained accident threatened said know mate owe 100 grand 50 000 today every day pay another 5 000 per day mr ryan refused told coming whole family reminded knew number knew lived said would get somehow would kill wife child 16 stage two child young third way surprisingly terrified child wife 17 mr ryan contacted police went mr ryan home four time course afternoon rang number phone rang fifth occasion left chilling message voicemail hey buddy guess coming house want five grand got two day dead mate come kid marisa cocksucker 18 mr ryan realised eventually marisa name must found school id one son friend left car stolen 19 terrified mr ryan family understandably feel safe home went stay somewhere else night 20 police ultimately able trace telephone call identification photo board provided mr ryan 21 mobile number registered michael reid sean reid suggesting phone different name confirmed number phone call made mr ryan phone told police 22 police recovered stolen mercedes left scene collision found item stolen mr densley home earlier day 23 half past ten night police worked lived went address norlane car stolen mr ryan parked driveway engine running reverse light 24 arrested clothing seen wearing earlier day item connected making threat mr ryan connected theft mercedes found house person 25 interviewed exercised right make comment interview 26 affect mr ryan wife profound significant terrified nature threat fact knew address move night found fearful live house new house bought still process moving one planned hope dream family future together 27 selfish callous conduct destroyed dream caused terrible sense loss safety security also significant financial loss nothing fix one hope time feel little safer little secure little protected 28 age 24 amassed sorry significant list previous conviction conviction violence personal associated stealing property prior conviction property damage bad driving driving impaired alcohol driving without authority also previous conviction possession ammunition authorised posse number conviction offence associated breaching court order addition interfering licence include conviction breach bail breach restraining order breach condition conditional suspended sentence 29 conviction admitted court eight occasion first appearance child court october 2005 recent appearance magistrate court rockingham magistrate court january 2012 30 told mr nibbs instruction presented psychological report prepared m carla lechner good upbringing stable loving family although aged six diagnosed adhd apparently responded well medication family life schooling sense unremarkable 31 early teen would appear started go rail began abusing drug alcohol getting trouble fell family 32 discovered early teen man believed father biological father angry parent saw deceiving true parentage 33 m lechner report would appear remained although aware accept biological father violent mother left protecting exposure violence brought stable loving family man accepted treated son brought child child family 34 despite fact met biological father discovered led life appears devoted abuse drug alcohol seriously possibly terminally ill suffering multiple organ failure result substance abuse amassed significant criminal record doubt part linked history substance abuse remain angry mother step father social father see deception childhood 35 account gave m lechner mr nibbs explanation gave mr nibbs advanced criminal history point view person ready blame others misfortune prepared take responsibility action consequence 36 blame descent drug alcohol abuse consequent criminal behaviour response discovering true parentage blame biological father relapse tempting luring continuing abuse alcohol drug blame relapse drug alcohol abuse offending must sentence 37 left western australia early 2012 living therefore geelong area nine month offending much time working given significant support refer detail shortly one biological sister whose attempt find biological sibling led contact two 38 told come victoria make fresh start get away drug alcohol abuse criminal offending history six month appears able relatively well 39 custody since arrest september 2012 although mr nibbs course plea emphasised step taken custody course thought would assist particularly obtaining employment release nothing said course plea delivered customary care thoroughness indicate sorry done sense shame concern effect offending victim 40 although report m lechner recommended residential drug alcohol rehabilitation next step put plea one goal put seen effect long term drug alcohol abuse father given real incentive remain substance free release admirable concerned rather victim 41 bleak picture present tempered number matter count well favour point optimistic view able taken prospect rehabilitation criminal history history drug alcohol abuse would suggest 42 first significant support biological sister christie impressive witness everything done time reached try find biological sibling time readily willingly offered home geelong knowing recently released prison knowing history drug alcohol abuse speaks remarkably well 43 supported arrival geelong giving accommodation small crowded home young family assisted find accommodation thought would better living near independently 44 supported whilst custody indicated home upon release strong loving support hold real promise better way life 45 impressed loving acceptance also description person presented early month last year first met occasionally impaired drug alcohol impressed description emergence person seen first month continued spend time remand 46 decent hardworking person obviously good family value good working value add weight give said lucky support someone christie treasure value support act way show deserve trust placing promise hold better way 47 second matter count favour good history employment one maintained despite drug alcohol abuse marked life date amassing significant number criminal conviction referred 48 obtained formal qualification painter decorator told good history working field western australia arrival geelong since came early last year 49 would appear little trouble getting work employee shown dedication diligence according christie time geelong working first enough support obtaining work employee earning respect support employer 50 since remanded done course offered people remand dealing drug alcohol abuse stress better management oneself done number vocational course significantly obtained certificate welder whilst custody kangan tafe told field plan look work upon release 51 history work history improving qualification whilst custody entail history used getting morning going work every day enjoying occupied work see positive factor life count much favour release 52 still relatively young showed arrival victoria capacity time either abstain manage drug alcohol abuse remain employment continue support sister matter add guarded optimism prospect future 53 maybe extended time custody support sister appreciation dismal future ahead continue along path date path father apparently pursued growing maturity brought realisation want future change future different 54 maybe seeing close quarter life sister lead made indeed see want life like good job partner family home future free drug alcohol abuse offending cycle imprisonment 55 sentence impose must balance factor counting favour hold support sign hope along need denounce appalling behaviour day punish deter acting like manner deter others think behaviour acceptable something 56 m flynn said serious offence blackmail robbery offence particularly serious example type 57 threat made cruel calculated persisted time victim impact statement eloquently make clear effect intended strike fear immediate victim mr ryan also victim family 58 agree appropriate considerable gap head sentence non parole period hold hope allow parole board see fit release parole period supervised release allow supervised assistance drug alcohol rehabilitation occur supervision work supervision live supervision mix thing likely assist upon release maintain resolve currently expressing hoped time along way start develop compassion concern people hurt impacted offending 59 could please stand charge pleaded guilty convicted 60 charge 1 theft mercedes sentenced imprisoned period 15 month direct three month served cumulatively upon partial cumulation order make upon base sentence 61 charge 2 burglary sentenced imprisoned period nine month direct three month served cumulatively upon partial cumulation order base sentence 62 charge 3 theft associated burglary sentenced imprisoned period nine month 63 charge 4 charge robbery mr ryan car sentenced imprisoned period two year direct 12 month served cumulatively upon partial cumulation order upon base sentence 64 charge 5 blackmail sentenced imprisoned period two year six month base sentence 65 charge unlicensed driving fined amount 1 000 66 charge failing render assistance collision fined amount 500 67 make total effective sentence four year 68 direct serve period two year eligible parole 69 declare spent 256 day pre sentence detention direct counted reckoned part sentence already served 70 declare pursuant 6aaa thesentencing actthat plea guilty would sentenced charge 1 5 total effective sentence six year imprisonment would fixed period four year time would served eligible parole 71 note record fine remain unpaid payment plan part payment arrangement entered satisfaction registrar apply fixing term imprisonment default payment fine current thinking would direct time served lieu fine would served cumulatively upon sentence imposed today take view separate offence dealt separately rather part sentence served concurrently sentence already imposed 72 licence held cancelled disqualified obtaining licence period two year commences today 73 pursuant 464zf thesentencing acti direct undergo procedure taking forensic sample accordance sub division 30a part 111 crime act 74 direct obtained taking scraping mouth buccal sample seriousness circumstance offending prior conviction noting order opposed 75 must warn mr reid consent taking mouth scraping supervision authorised member police force sample taken may well blood sample invasive mean obtaining forensic sample police authorised use reasonable force enable forensic procedure conducted consent understand 76 prisoner yes honour 77 honour order pronounced reflect said intended 78 m flynn yes honour 79 mr nibbs yes honour 80 honour arithmetic correct 81 m flynn honour 82 honour arithmetic correct 83 m flynn sorry thought said anything correct sorry arithmetic correct honour 84 honour thank ancillaries 85 m flynn thank honour 86 honour thank yes remove mr reid please 87 prisoner removed

BROWN -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 228 (2 December 2010).txt

brown v state western australia 2010 wasca 228 2 december 2010 last updated 2 december 2010jurisdiction supreme court western australiatitle court court appeal wa citation brown v state western australia 2010 wasca 228coram pullin janewnes jamazza jheard 5 october 2010delivered 2 december 2010file cacr 152 2009between walter douglas brownappellantandthe state western australiarespondenton appeal jurisdiction district court western australiacoram sleight dcjfile ind 1198 2009catchwords criminal law appeal sentence stealing motor vehicle driving dangerously offence whether sentencing judge failed reconsider relevant sentencing consideration determining whether suspend term imprisonment whether sentence manifestly excessive whether first limb totality principle infringed turn factslegislation criminal code wa 313 1 371a 378 378 2 b 401 2 c 445road traffic act 1974 wa 49 1 49 3 55 1 61 1 64 1 sentencing act 1995 wa 6 1 6 2 6 4 32 39 2 39 3 59result appeal dismissedcategory brepresentation counsel appellant mr j robsonrespondent m l petrusasolicitors appellant legal aid wa respondent director public prosecution wa case referred judgment boyle v state western australia 2010 wasca 97buxton v state western australia 2009 wasca 6dinsdale v queen 2000 hca 54 2000 202 clr 321drake v state western australia 2006 wasca 209duong v state western australia 2006 wasca 110 2006 32 war 246fennell v somerville 2009 wasc 214forward v bower 2007 wasc 205furber v queen 2008 wasca 233giglia v state western australia 2010 wasca 9henderson v state western australia 2007 wasca 198hibbs v queen 2002 wasca 204hume v queen 2000 wasca 306 2000 33 mvr 203lopes v carter 2006 wasc 197 2006 47 mvr 18macpherson v queen 2002 wasca 287mccoll v queen 1999 wasca 306mcdonald v white 2007 wasca 213quartermaine v queen 2000 wasca 107re state western ex parte richards 2005 wasca 176rodenburg hill v wa police 2009 wasc 330roffey v state western australia 2007 wasca 246skipworth v state western australia 2008 wasca 64soulos v state western australia 2004 wasca 182wilson v state western australia 2010 wasca 821pullin ja agree mazza j 2newnes ja agree mazza j 3mazza j appeal sentence leave appeal granted 30 april 2010 4 15 september 2009 appellant entered fast track plea guilty offence stealing motor vehicle driving dangerously contained indictment 1198 2009 indictable offence eight offence contained notice pursuant tos 32of thesentencing act 1995 wa thes 32notice 5 hearing fact submission prosecuting defence counsel sentencing judge immediately proceeded sentence appellant follows section 32noticecount charge indoffencemaximum penaltysentence imposed1198 2009steal motor vehicle drive recklessly 378 2 b 371acriminal code wa code 8 years16 month immediate imprisonmentcount 112296 2008burglary place 401 2 c code14 years16 month immediate imprisonment concurrentcount 212297 2008stealing 378code7 years3 month immediate imprisonment concurrentcount 312298 2008fail stop 55 1 road traffic act 1974 wa rta 1 500 fine 200 fine 59sentencing actto apply count 412299 2008dangerous driving 61 1 rta 800 fine 500 fine 59sentencing actto apply count 512300 2008driving bac 0 8 0 117 64 1 rta 600 1 500 fine 4 month disqualification 600 fine 59sentencing actto apply 4 month mdl disqualificationcount 612301 2008driving without valid vehicle driver licence fine suspension 49 1 49 3 rta12 month 200 1 500 fine 3 year mdl disqualification3 month immediate imprisonment cumulative 12 month cumulative mdl disqualificationcount 712322 2008aggravated common assault 313 1 code3 year 36 000 fine9 month immediate imprisonment cumulativecount 812323 2008unlawful damage 445code12 month 12 000 fine1 month immediate imprisonment concurrent6 appellant sentenced total effective term 2 year 4 month imprisonment served immediately backdated commence 13 september 2009 eligibility parole also ordered pay 1 300 fine disqualified holding obtaining motor driver licence period 16 month appellant appeal term immediate imprisonment ground follows learned sentencing judge erred law failing appropriately consider suspending sentence imprisonment reconsidering relevant sentencing factor learned sentencing judge erred imposing sentence imprisonment individual offence manifestly excessive total sentence disproportionate overall criminality particular individual sentence manifestly excessive consideration given circumstance offence personal circumstance appellant sentencing standard b total sentence disproportionate total criminality sentencing standard considered 7 apparent appellant written oral submission ground designed allege express implied error 8 alleged express error sentencing judge failed reconsider relevant sentencing consideration deciding whether suspend term imprisonment imposed 9 alleged implied error individual sentence imprisonment manifestly excessive long suspended total effective sentence offended first limb totality principle 10 general principle applicable appeal well known need restated succinctly set inwilson v state western australia 2010 wasca 82 2 point 1 3 background11 offence committed 2 october 2008 12 time appellant de facto relationship kjd although living together one roof 13 day question appellant kjd drinking alcohol since lunchtime kjd sister law house argument left separately appellant walked kjd given lift home sister law 14 kjd 6 year old daughter arrived home find appellant already short argument appellant kjd sister law appellant went inside house started yelling kjd daughter continued drinking intoxicated aggressive kjd tried call police appellant hung telephone later snapped half count 8 thes 32notice 15 appellant got lighter fluid went front house poured fluid jacket jumper set fire went kitchen kjd back turned appellant squirted back lighter fluid yelled shut light count 7 thes 32notice kjd asked appellant leave 16 4 45 pm 5 00 pm appellant walked workshop area business premise malaga walked premise rear door opened large roller door got utility belonged business using key inside vehicle started drove appellant permission premise use vehicle count 1 thes 32notice stealing aspect indictable offence 17 appellant drove vehicle carpark area malaga tavern high speed lost control vehicle mounted kerb crashed rear toyota camry sedan appellant immediately reversed vehicle narrowly missing two pedestrian drove away high speed appellant made attempt stop vehicle speak owner damaged vehicle one pedestrian take evasive action avoid hit vehicle driven appellant count 3 4 thes 32notice 18 appellant drove vehicle pintail parade ballajura described state prosecutor aggressive violent manner constituted accelerating heavily braking hard resulting screeching vehicle tyre drove manner pintail parade minute dangerous driving aspect indictable offence 19 eventually vehicle broke appellant got car stole number item vehicle including nine roll masking tape empty mobile phone box small black torch micro sd card reader child jacket count 2 thes 32notice soon afterwards found police side road breathalysed gave blood alcohol reading 0 117 time driving count 5 thes 32notice 20 appellant authority drive motor vehicle licence suspended non payment fine count 6 thes 32notice pre sentence report21 appellant told author pre sentence report little recollection day question drinking heavily approximately two bottle spirit throughout day kjd 36 year age time offending history working housing industry reasonably lengthy history prior conviction dating back 1992 included conviction unlawful wounding stealing possession cultivation cannabis three prior conviction driving suspension although two conviction occurred 1996 also prior conviction driving without valid driver licence 22 30 december 2008 commission offence appellant sentenced 6 month 1 day imprisonment suspended 12 month offence receiving committed 31 october 2008 day also given 12 month community based order result breaching community based order imposed 30 may 2007 offence committed 2 october 2008 breach order made 30 may 2007 author pre sentence report said appellant complied satisfactorily community based order attending programme designed address number criminogenic need including impulsivity risk taking aggression drug use consequential thinking 23 author pre sentence report said appellant suitable community based disposition recommended disposition include supervision programme community work requirement sentencing proceedings24 appellant counsel plea mitigation drew sentencing judge attention aspect pre sentence report already referred submitted appellant remorseful well community based order imposed 30 december 2008 told sentencing judge kjd spoken asked defence counsel convey court incredibly supportive de facto 25 defence counsel submitted sentencing judge intensive supervision order alternatively conditional suspended term imprisonment imposed 26 state prosecutor submitted offence warranted term immediate imprisonment eligibility parole 27 need set honour sentencing remark length honour gave succinct account fact appellant offending noted appellant day essentially control honour expressly referred main mitigating factor fast track plea guilty appellant remorse good work history progress made community order honour also expressly referred totality principle 28 honour regarded aggravated assault upon kjd indictable offence serious feature appellant offending shortly imposing sentence honour made statement appellant submits constitutes alleged express error t 19 said court impose term imprisonment except court considers thatthe seriousness offendingis imprisonment justified matter considered sentencing option conclude view ofthe seriousness offending immediate term imprisonment appropriate sentence emphasis added 29 honour concluded sentencing remark following exchange took place honour defence counsel m seif seif m honour make mention exercising discretion refuse consider suspension sleight dcj sentence seif m yes sleight dcj said concluded appropriate sentence immediate term imprisonment seif m thank honour t 21 honour make alleged express error 30 appellant submitted paragraph sentencing reason referred honour used word seriousness sense referring circumstance commission offence submitted demonstrated failure honour refer point sentencing remark relevant sentencing consideration particularly mitigating factor submitted honour required take account relevant sentencing consideration circumstance offending deciding whether suspend sentence imprisonment required high court indinsdale v queen 2000 hca 54 2000 202 clr 321 fallen error 31section 6 1 thesentencing act act provides sentence imposed offender must commensurate seriousness offence 32section 6 2 act requires sentencing court determine seriousness offence taking account statutory penalty offence b circumstance commission offence including vulnerability victim offence c aggravating factor mitigating factor 33section 6 4 act command court must impose sentence imprisonment unless seriousness offence imprisonment justified protection community requires 34section 39 2 act set various sentencing option open sentencer ranging imposing sentence term immediate imprisonment apart term immediate imprisonment serious sentencing option conditional suspended imprisonment order followed suspended imprisonment order without condition 39 2 f g h 35section 39 3 act provides court must use sentencing option in 39 2 unless satisfied appropriate use option listed 36 effect provision court cannot impose sentence imprisonment kind unless satisfied lesser sentencing option appropriate court satisfied imprisonment proper sentence immediate imprisonment cannot imposed unless court satisfied suspended imprisonment without condition inappropriate consideration relevant decision impose imprisonment must revisited determining whether suspend term dinsdale v queen duong v state western australia 2006 wasca 110 2006 32 war 246 40 skipworth v state western australia 2008 wasca 64 8 furber v queen 2008 wasca 233 84 boyle v state western australia 2010 wasca 97 44 frequently referred case two stage process 37 opinion clear statement made honour sentencing remark exchange counsel conclusion remark complied withs 39 3 act honour expressly stated occasion appropriate sentence immediate term imprisonment opinion word mean honour considered appropriate impose sentencing option short immediate imprisonment 38 accept appellant submission honour used word seriousness passage sentencing reason referred referring circumstance commission offence relevant circumstance case 39 word used honour seriousness offending almost identical language used in 6 1 2 4 act refer seriousness offence seriousness offence moreover context word used point sentencing remark honour deciding whether impose term imprisonment whether term served immediately speaking point setting principle applied case general sense 40 honour used word seriousness offending twice first reference decision impose imprisonment second forming view immediate imprisonment appropriate sentence light clear honour used word using accordance meaning expression in 6 2 act true appellant point honour make express reference two stage process coming decision suspend term imprisonment may desirable sake clarity sentencer explicitly state taken account relevant sentencing consideration rejecting option suspended imprisonment order unders 39 2 f ands 39 2 g however error fail evident consideration sentencing remark whole two stage approach required act undertaken plain honour said adopted correct approach make alleged express error allegation implied error41 allegation dealt together totality principle comprises two limb first limb total effective sentence must bear proper relationship overall criminality involved offence viewed entirety regard circumstance case including referable offender personally second limb court impose crushing sentence word crushing context connotes destruction reasonable expectation useful life release submitted total effective sentence imposed appellant crushing 42 practical effect totality principle ordinarily arrive aggregate sentence le would arrived simply adding term appropriate individual offence totality principle come effect little importance ultimate aggregate made real issue whether total effective sentence offended totality principle whether one individual sentence excessive roffey v state western australia 2007 wasca 246 24 26 andgiglia v state western australia 2010 wasca 9 39 40 43 appellant written submission referred number case offender sentenced multiple offence general sense type consideration case referred fennell v somerville 2009 wasc 214 buxton v state western australia 2009 wasca 6 rodenburg hill v wa police 2009 wasc 330 forward v bower 2007 wasc 205 henderson v state western australia 2007 wasca 198 mcdonald v white 2007 wasca 213 drake v state western australia 2006 wasca 209 lope v carter 2006 wasc 197 2006 47 mvr 18 state western ex parte richards 2005 wasca 176 soulos v state western australia 2004 wasca 182 hibbs v queen 2002 wasca 204 macpherson v queen 2002 wasca 287 hume v queen 2000 wasca 306 2000 33 mvr 203 quartermaine v queen 2000 wasca 107 andmccoll v queen 1999 wasca 306 none case involved combination offending many case different case hand little assistance gained case point embarking detailed analysis 44 circumstance appellant overall offending case serious agree honour assessment two serious offence aggravated assault kjd indictable offence however burglary driving suspension also serious cannot overlooked 45 appellant consumed large quantity alcohol state honour described essentially control state assaulted de facto partner presence 6 year old daughter acted way would terrified victim gave rise potential severe injury without consent entered business premise connection brazenly drove one business vehicle drove vehicle suburban street manner cause danger potential danger road user affected alcohol circumstance driver licence suspension appellant offending truly multifaceted unchallenged cumulation sentence justified 46 already outlined mitigating factor appellant favour 47 view think total effective sentence 2 year 4 month disproportionate appellant offending circumstance case properly reflected objective punishment retribution deterrence rehabilitation regard total sentence imposed upon appellant within range sound sentencing discretion see reason interfere sentence suspended 48 already explained honour approach question suspension correct seems honour exercised discretion regard relevant circumstance unable say incorrect conclusion suspension term imprisonment inappropriate conclusion49 opinion none error alleged appellant established would dismiss appeal

Terry Zisti and Anor v Ryde Joinery P_L and Ors [1996] NSWSC 191 (12 June 1996).txt

terry zisti anor v ryde joinery p l or 1996 nswsc 191 12 june 1996 terry zisti anor v ryde joinery pty ltd ors1671 96thursday 2 may 1996the supreme court new south wale equity divisionyoung jjudgmenthis honour case originally commenced local court transferred district court recently transferred court although may shown exasperation mr nicholls course argument pay tribute thinking every possibly conceivable point might assisted client resisting claim plaintiff however great respect many point complete red herring reason shortly develop plaintiff present registered proprietor subject property first defendant alleged lessee second third defendant guarantor lessee private company simplicity refer three defendant simply defendant fourth ninth defendant represented mr colefax counsel solicitor acted plaintiff purchase property simply refer solicitor first half 1990 registered proprietor land folio identifier 5 15740 chris vournazos julia vournazos amalia alexatos somewhere march 1990 reached understanding defendant defendant would lease subject premise factory premise 9 11 sheffield street kingsgrove three year 1 june 1990 together five year option renewal pursuant understanding lease signed registered proprietor sent solicitor acting proposed lessee 21 march 1990 cover letter ex ax12 letter contains following paragraph please note lease must executed client move premise despite fact lease commences 1st june 1990 client entitled possession premise rent free date term condition lease except payment rent outgoings apply immediately client taking possession premise please confirm client understanding please client execute lease return cheque payment cost cheque payment client one 1 month bond order expedite matter document forwarded without client final approval reserve client right regard letter appears signed mr sally tuckfield solicitor employed heidtman co firm letterhead somewhere end march 1990 defendant went possession 9 11 sheffield street kingsgrove 23 april 1990 mr hetherington c p white son solicitor defendant replied letter 21 march letter continued return lease duplicate duly signed client would please note neither submission signing document client stage implies acceptance term condition lease particular acceptance lease offer subject client agreement following 1 2 3 4 acceptance final lease matter expressly subject repair major leak building roof 27 april mr hetherington wrote asked heidtman co seek instruction whether lieu cash deposit bank guarantee proposed lessor would accept either personal guarantee security stock said would appreciate reply matter matter raised previous letter soon possible day mr tuckfield faxed letter back referring letter 23 april saying respect point 4 understand client negotiating direct client regarding repair leak building roof correspondence cost possible deed charge stock rather cash deposit lessee cheque payable heidtman co furnished 3 may 1990 15 may 1990 mr hetherington wrote deed charge said note otherwise matter would appear order relation term lease would please return lease document u amendment duly made enable amendment initialled client property auctioned proprietor passed auction sold private treaty present plaintiff highest bidder contract signed 24 may 1990 1988 edition standard form annexed photocopy lease executed defendant apparently 23 april 1990 special condition 29 indicated liquidated damage would payable completion take place 13 june 1990 reason solely attributable vendor special condition 30 provided follows party agree lease annexed hereto marked annexure lease required registered lease lodged registration date appointed fixed settlement completion agreement purchaser shall settlement completion accept lease registrable form together amount registration fee lodge registration land title office prior lodgement transfer favour purchaser settlement took place 22 june 1990 lease registered time would seem notice complete plaintiff solicitor concerned completion vendor might claim liquidated damage settlement effected far purchaser solicitor concerned settlement clerk settlement clerk instruction receive amongst thing memorandum lease duplicate however happen instead heidtman co gave undertaking following form heidtman co undertake lease chris vournazos julia vournazos amalia alexatos lessor ryde joinery pty ltd lessee resealed return owen hodge son answer requisition land title office owen hodge son solicitor purchaser problem would appear seal lessee affixed red ink regulation made thereal property actin force time although regulation repealed corresponding regulation force present required document presented registration bearing seal sealed clear legible dense black ink dense dark blue ink purchaser also given undertaking settlement deed charge ryde joinery pty ltd substitute security deposit would procured delivered purchaser however apart matter evidence either plaintiff solicitor knowledge problem validity lease heidtman co able fulfil undertaking reason first defendant simply call lessee would reseal lease lessee took view considered roof fixed intend anything attitude became apparent purchaser solicitor paid money obtained registrable transfer certificate title 15 november 1990 narrative show lease plaintiff lessee registered initial registered proprietor appear negotiated defendant made promise respect repairing roof would seem doubt roof leak completion sale fact leaking roof problem made apparent plaintiff made contact builder apparently skilled type work maintenance applicant nsw pty ltd boasted inter alia specialty waterproofing company gave advice different approach problem hoped particular method could well solve problem cheaply company put first proposal effect october 1990 appear complaint leak october 1990 march 1991 whether leak time drought principal defendant busy matter necessary resolve however 13 march 1991 second defendant mr patane controller first defendant wrote plaintiff regretting advise continued roof leak lessee threatened seek alternative accommodation plaintiff asked builder work work done april 1991 evidence given behalf plaintiff work completely cured problem mr durrant managing director builder work mr zavelsky independent building expert gave evidence effect mr patane however produced photograph said shown water damage june 1991 strong dispute matter plaintiff say although 11 june 1991 stamped back photograph last saw photograph brand upon mr nicholls first third defendant however point almost contemporaneous letter written mr patane solicitor month mention water problem june 1991 matter truth matter appear complaint made plaintiff reason would appear letter mr patane solicitor drew reply solicitor effect mr patane better make mind whether saying lease lease make formal statement made decision evidently never make mind gave notice late 1991 state premise first defendant vacating vacated premise 2 january 1992 relevant note defendant leased present premise kingsgrove also leased another factory nearby different lessor factory forrester street would seem main part first defendant business carried forrester street sheffield street premise question instant case used mainly storing work progress material material processed defendant also dispute landlord forrester street property would appear water penetration defendant vacated forrester street building time vacated present building mr patane gave evidence impossible first defendant part work kingsgrove another part work somewhere else necessary vacate building mr newlinds plaintiff put truth matter real problem forrester street building first defendant may vacate building needed excuse vacate sheffield street building well without penalty mr patane would agree proposition various submission made mr nicholls behalf first second third defendant liability lease basically solicitor sued backup claim case defence first second third defendant succeed however solicitor also sued damage settlement taking undertaking heidtman co negligent caused loss instead recourse 10 000 straight away plaintiff needed pursue 10 000 court resultant expense delay focus case plaintiff defendant defendant say liable pay rent plaintiff 2 january 1992 claimed 1 lease subject condition precedent never fulfilled never came existence 2 rule inpigot case 1572 engr 180 1614 11 co rep 266 77 er 1177or derivative rule absolves liability 3 plaintiff mitigate damage make clear mitigation come case cl 15 6 lease provides apart proviso event lessee vacating demised premise whether without consent lessor lessor shall take reasonable step mitigate loss attempt lease demised premise reasonable rent reasonable term first argument put variety way way however based proposition letter mr hetherington 23 april 1990 returned lease made clear lease operate major leak building roof fixed mr nicholls written submission commence proposition lease agreement sued upon prior registration subject condition precedent repair major leak roof leased premise binding agreement entered condition satisfied b condition subsequent effect c collateral agreement submission proceeds lease agreement delivered escrow previous proprietor condition precedent never satisfied alternatively never satisfied june 1990 reasonable time registration dealt later argument lease conceded however taking possession pursuant void lease least tenancy came operation tenancy 127 conveyancing act concession must legal situation least although law governing lease contract merged single set principle recent year still essence lessee one actually enters onto premise entry onto premise first defendant undoubtedly end march 1990 would law made interest sort lease doubt whether one lease subject condition precedent recognise one assignment lease subject condition precedent landlord agree assignee may analogous situation seem initial lease one look entry extremely difficult entry subject condition understand lease subject condition precedent exists mere agreement entry actual entry case however necessary pursue argument insofar relates law escrow think respect entirely misconceived escrow ancient doctrine related deed law deed required signed sealed delivered delivered conditionally case escrow however doctrine application non deed non deed require delivery document question instant case deed would seem unarguable delivered hand ryde joinery pty ltd solicitor soon deed delivered hand client solicitor becomes operative unless client actually make power attorney deed imposing condition solicitor cannot deliver deed escrow quite clear joyce j said inre seymour 1913 1 ch 475at 481 whole futility present argument exposed prof farrand fourth edition hiscontracts conveyanceat p 325 following document could stretch imagination matter law instant case escrow however two possibility one equity operating prevent deed coming effect certain condition occurred one situation series guarantor guarantor sign deed guarantee binding signed basis rest would sign nothing doctrine escrow completely different equitable doctrine law contract contract made way come existence certain event happens see example case cited argument perri v coolangatta investment pty ltd 1982 hca 29 1982 149 clr 537at 547 agreed contract entered subject purchaser completing sale property 9 korokan road lilli pilli high court pointed promissory condition purchaser promise sell property effect merely main contract come existence reasonable time elapsed sale lilli pilli property accordingly something condition precedent one cannot get damage fulfilled consequence contract come existence fulfilled difficult mind analyse mr hetherington letter 23 april 1990 imposing non promissory condition series reason first letter say acceptance lease offer subject matter repair leak literally conditional acceptance offer acceptance matter law merely beating wind difficult see person acceptance compel party treat something condition precedent also course unfortunate problem grantor lessor difficult lessee grantee impose condition precedent grantor letter 23 april counter offer one got see sort counter offer word condition precedent used letter merely state acceptance lease subject fixing roof client agreement little inconsistent para 4 one got give meaning document even one concentrate para 4 acceptance final lease whatever may mean expressly subject repair major leak building roof saying lease returned subject condition precedent term condition document incorporate matter 1 2 3 4 would considered executed subject repair probably best view initial lease operate provisionally party contemplated would document would embody amendment document would come matter major leak dealt must confess cannot see one sensibly construe letter 23 april 1990 imposing condition precedent commercially speaking also cannot see party would intended lessee lessor wanted lessee go possession bound term lease lessor also wanted generate income 1 june 1990 wished attend major leak building intended life go meantime seems extremely difficult mangle intention light happened say condition precedent however even letter could construed way would seem sufficient mr hetherington told mr tuckfield understood client negotiating directly lessor letter received mr hetherington due course noted month later matter would appear order would seem problem roof winter 1990 gap evidence whether problem referred letter 23 april 1990 think applying principle continuity one assume probably work done plaintiff october 1990 would appear solved problem whether dry spell otherwise know absence complaint tends suggest tenant stage continued pay rent continued use premise business condition precedent would view condition precedent fulfilled alternatively continuing remain premise reasonable time fulfilment condition precedent october 1990 paying rent getting commercial benefit premise condition precedent waived fortiori case work done april 1991 thereafter condition precedent waived doubt competent person waive condition precedent favour waiver lease come without impediment mr nicholls put condition precedent fulfilled june 1990 late fulfil thereafter client remained possession premise tenant tenant 127 conveyancing act able vacate month notice le whenever felt like consider conduct party bear march 1991 defendant insisted work done stop roof leak true mr patane say letter 13 march 1991 condition lease document returned previous solicitor satisfied demand fix roof roof work done april tenant remained possession remainder year accordingly consider tenant escape prima facie liability condition precedent non fulfilment next matter raised rule inpigot case mean tenant treat lease nullity need state fact normal course conveyancing transaction would lease registered proprietor first defendant would registered completion purchase one present case purchase sale commercial building investment purpose lease liability encumbrance sense word particularly economic climate prevailing 1991 1992 deposed mr thomas valuable asset registered proprietor without assurance rent coming property would worth much le accordingly everybody interest lease registered mr zisti evidence make clear realised indeed would obvious anybody reason lease registered would seem tenant refused reseal applying pressure landlord order fix roof lease registered solicitor purchaser held back registering transfer week obvious would register transfer discharge mortgage former mortgagee new mortgage state bank order protect purchaser new mortgagee solicitor also acted new mortgagee accordingly discharge mortgage transfer new mortgage lodged registration duly registered lease still unregistered posed problem feeling person ceased registered proprietor dealing signed person cease effect feeling reinforced court appeal said inmcvey v dennis 1988 55 alr 201 course party could approached court order leasehold interest registered approaching court expensive matter appeared lessee would execute lease solicitor made enquiry registrar general see whether lease could registered would appear informed though status person informing clear provided lease executed new registered proprietor certain alteration made lease would registered alteration made lease registered 15 november 1990 alteration would appear deleting name three former registered proprietor inserting name present plaintiff crossing signature earlier registered proprietor substituting signature present registered proprietor crossing reference previous mortgage substituting reference new mortgage state bank clause respect security deposit altered mr nicholls say material alteration say particular special condition 30 contract required lease registered first say reference mortgage state bank mean mortgage priority lessee interest document registered proper order lease would priority bank thirdly say right contract affected privity contract purportedly created new registered proprietor lessee respect old registered proprietor rule inpigot case recently considered court appeal inwarburton v national westminster finance australia ltd 1988 15 nswlr 238 case hope ja particularly considered rule great depth referred approval decision south australian supreme court inarmor coating marketing pty ltd v general credit finance pty ltd 1978 17 sasr 259 consideration led honour view though need decide purpose case rule inpigot case apply non fraudulent alteration also said accordance previous authority alteration purpose completing blank executed document rule apply even completion blank performed mistakenly give effect party meant regard one also refer tokeysen v gregg 1932 32 sr 288 andamalgamated television service pty ltd v television corporation ltd 1970 3 nswr 85 rule inpigot scase technical rule common law one materially altered deed delivered deed considered completely void late 18th early 19th century principle extended non deed though particularly clear whether made decision fully appreciated indeed bray cj thearmorcase thought wrong nonetheless bray cj say probably bound decision however mistake think rule deed automatically completely void altered applied non deed prof williston say articledischarge contract alteration 1904 18 harvard law review 105at 114 rule operates differently respect non deed rule far non deed concerned appears one merely disregard alteration secondary evidence allowed prove original term obligation valid form would enforced see p 116 authority quoted proposition isgunter v addy36 se 553 1900 south carolina example operation rather case actually state principle mr nicholls argues instant document deed even registration referred decision inmanton v parabolic pty ltd 1985 2 nswlr 361at 369 cannot see document registration could deed mere fact sealed first defendant seal insufficient document nowhere called deed granting party never purported seal deliver deed normal course 36 thereal property actis document deemed deed registration accordingly one applies left rule inpigot case case non deed non deed worst happen one one disregard alteration look document accordance original tenor would sufficient enable defendant avoid lease rule applied full vigour one would consider whether alteration material various test put forward material alteration test recent day probably le stringent earlier time davidson j quoting second edition norton ondeedssaid p 292 ofkeysen scase alteration made execution would affected position right obligation person claiming deed material possibly alteration may material however recent authority seems accept proposition one alteration purpose deed make change substantive right party material alteration involved think clearly specified decision south australian court thearmor coatingcase mr nicholls say present alteration must material affect client three way mentioned cannot see first contractual right original registered proprietor would unaffected alteration made stranger even strictest application rule inpigot case secondly special condition 30 contract vendor purchaser absolutely nothing right lessee lessee party contract right enforce contract special condition 30 view make plain whilst vendor obligation provide registered lease obligation could commuted something le proposed special condition 30 thirdly far mortgage state bank concerned mere fact mortgage listed encumbrance would affect right party one whit examined question priority prior registered mortgage subsequent lease inamev finance ltd v canagon engineering pty ltd 1987 6 bpr 13899 notnecessary repeat said except one must look conduct party bare fact prior registration sufficient consent well awareness lease realistically speaking commercial lease value proprietor mortgagee bank document solicitor document show always heart transaction would mortgage given commercial property let tenant lease tenant right recognised mortgagee would prevail appeal case asunited starr bowkett co operative building society number 11 pty ltd v clyne 1967 68 sr nsw 331 mind completely miss real point accordingly consider rule inpigot case derivation rule affect situation must turn circumstance registration lease mr nicholls concedes subject fraud registration lease cured voidness think must stage argument counsel toyed 43a thereal property act section purpose protection notice deems legal estate accelerated time purchaser pay money obtains deed really think another red herring notice relevant present case section 43a exists general law equity court enforce equity bona fide purchaser value legal estate without notice awkward person legal estate notice equitable estate purpose 43a advance time putative registered proprietor deemed legal estate time pay money get transfer time registration protect notice equitable estate deal notice something like condition precedent anything ilk accordingly mind 43a nothing case also noted 43a advance protection notice person seek protection take interest dealing registrable doubt transfer plaintiff got legal estate registrable dealing may doubt whether lease registrable dealing view although comply regulation discretion registrar general 104 2 thereal property actwas sufficiently wide allow registered demonstrated fact registered registrar general officer told situation registrable dealing must include mind dealing possibly technically defective written wrong colour ink within registrar general discretion register otherwise registrable however say really red herring make remark deference argument put registering document registrar general party originally intended might otherwise frustrated chance event transfer registered lease may effect ofmcvey v dennisis lease original form lost potency able operate command registrar general change register doubt even way effecting party original intention lease particular way one disposes condition precedent thepigotcase argument party intention registered lease property term condition mr nicholls say fraud involved document put forward registrar general good faith relies word tadgell j inaustralian guarantee corporation v de jager 1984 vicrp 40 1984 vr 483at 497 however really consider honour intended present sort case come within word pointing people inform registrar general witnessed person signature signature made presence know committing fraud registrar general presenting document statement view followed many occasion since court latest think beingwestpac banking corporation v sansom 1994 6 bpr 13790 recently affirmed court appeal 28 november 1995 consider fraud involved within meaning s 42 43 thereal property actin solicitor seeking carry original intention party even though way may rather unorthodox mr nicholls also say client personal equity entitles lease removed register mr nicholls relies decision court appeal inmercantile mutual life insurance co v gosper 1991 25 nswlr 32 45 mahoney ja said existence personal equity decided upon consideration substance refers simply fact person involved may invoke assistance equity court equity principle achieve relevant relief cannot see lessee take possession premise vacates convenient right cognisable court equity obtain order relieved lease think mean defendant defence wholly fails must turn question mitigation arises view clause lease referred earlier however question mitigation onus proof lie upon person alleges mitigation rent outgoings january 1992 may 1993 inclusive together interest thesupreme court act would amount 138 694 49 one would factor estate agent commission total property let 45 000 per annum april 1993 would fact le sum figure shown mr newlinds calculation mi130 property let january 1993 would significant reduction figure mentioned figure show letting january 1993 35 000 per annum plaintiff would entitled verdict 127 630 61 including interest accordingly much stake decision point two valuer gave evidence mr thomas defendant mr hepworth plaintiff mr thomas accepted property market 1992 landlord would fortunate find tenant within twelve month twelve month period included time tenant might occupation lease enjoying rent holiday put range extending fifteen month little evidence given fault plaintiff promoting property better faintly suggested promoted property enough advertised convinced suggestion discharge onus proof lie defendant seems even evidence valuer fifteen month unreasonable period time property vacant following defendant quitting accordingly figure 138 694 49 damage plaintiff entitled receive turn case solicitor damage integral part element tort negligence damage suffered matter careless person may escape liability believe waste time make finding whether solicitor generally careless received evidence two expert solicitor mr moses mr bluth also taken account normal incident conveyancing transaction must remembered solicitor perform vacuum circumstance may exist transaction may well bizarre may call unorthodox method must also remembered happened order ensure risk pay liquidated damage settlement taken place leaving solicitor discharge mortgage unregistered transfer unregistered mortgage state bank could held unregistered ever seems reasonable solicitor wait week lodging document registration problem followed consequence transfer registered lease said earlier method chosen solicitor unorthodox consider wise go neither condition precedent thepigot scase point succeeded damage flowed act solicitor one exception one exception solicitor settled undertaking vendor solicitor really given wrong party undertaking deed charge etcetera needed given lessee vendor personal fault solicitor partner firm given matter degree supervision called employed solicitor done settlement clerk would made error accepting undertaking wrong person realise settlement clerk bit pressure solicitor known pressure apparent real hard see vendor claim liquidated damage could succeeded however doubtless solicitor want take risk settlement clerk knowing matter settled prepared cut corner circumstance seem solicitor failed duty protect client getting deed charge least binding undertaking proper person solicitor done would put plaintiff situation could appropriated cash money 10 000 put receiver would money earlier point time get judgment given defendant course defendant able pay judgment plaintiff suffer loss solicitor however must real chance known defendant instant case least first defendant sufficiently financial meet judgment accordingly sum found solicitor loss sure chance 10 000 best discount 10 000 three eighth verdict solicitor 6 250 plus interest 17 january 1992 appears date solicitor added party matter district court basis average rate eleven per cent four quarter year would allow 2 821 interest would make verdict plaintiff solicitor 9 071 understand may well offer compromise either defendant solicitor accordingly need publish reason leave plaintiff draw short minute order list matter 9 50am 12 june 1996

Harsco Metals Australia Pty Ltd [2013] FWCA 6752 (10 September 2013).txt

harsco metal australia pty ltd 2013 fwca 6752 10 september 2013 note acorrectionhas issued document 2013 fwca 6752fair work commissiondecisionfair work act 2009s 185 application approval single enterprise agreementharsco metal australia pty ltd ag2013 2415 harsco metal australia whyalla site enterprise agreement 2013manufacturing associated industriessenior deputy president callaghanadelaide 10 september 2013application approval harsco metal australia whyalla site enterprise agreement 2013 1 application made approval enterprise agreement known theharsco metal australia whyalla site enterprise agreement 2013 agreement application made pursuant tos 185of thefair work act 2009 act made harsco metal australia pty ltd agreement single enterprise agreement 2 employer provided undertaking following term endorsed australian worker union clause 2 4 redundancyin respect redundancy payment entitlement prescribed paragraph 2 4 2 2 agreement realises inferior entitlement national employment standard ne employee made redundant one two year service company provides undertaking employee made redundant company make payment equivalent ne four week redundancy employee least one year le 2 year service company six week employee least one year le 2 year service company six week employee least two year le 3 year service company clause 3 2 dispute settlement procedurein respect paragraph two sub clause 3 2 1 3 2 2 inclusive clause 3 2 agreement company provides undertaking employee entitled representation consistent 186 6 b fair work act 2009 act anytime dispute settlement procedure respect paragraph three four clause 3 2 agreement company provides undertaking employee entitled raise dispute conducted via procedure prescribed clause 3 2 matter agreement relation ne consistent 186 6 act without limitation including without limitation individual employee grievance dispute grievance collective implication clause 6 8 public holiday ratein respect sub clause 6 8 3 agreement company provides undertaking contrary term sub clause 6 8 3 employee entitled payment public holiday consistent entitlement prescribed 116 act 3 result undertaking taken term agreement full copy advice provided employer attached agreement attachment 4 satisfied requirement s 186 187 188 act relevant application approval met 5 australian worker union bargaining representative agreement given notice 183 act want agreement cover accordance 201 2 act note agreement cover organisation 6 agreement approved accordance 54 act operate 18 september 2013 nominal expiry date agreement 15 february 2016 printed authority commonwealth government printer price code g ae403889pr541512

Official Trustee in Bankruptcy v. Cameron [2008] QSC 89 (14 May 2008).txt

official trustee bankruptcy v cameron 2008 qsc 89 14 may 2008 last updated 19 may 2008supreme court queenslandcitation official trustee bankruptcy v cameron 2008 qsc 89parties official trustee bankruptcy applicant vbarbara elizabeth cameron respondent file 10626 07division trial divisionproceeding applicationoriginating court supreme court queenslanddelivered 14 may 2008delivered brisbanehearing date 12 december 2007judge daubney jorder application adjourned date fixed pending hearing determination proceeding commenced respondent claim 11160 2007 cost incidental application reserved catchword real property incident estate interest land joint tenancy tenancy common incident joint tenancy severance bankruptcy matter respondent husband registered proprietor joint tenant house property interest property held respondent husband transmitted applicant following bankruptcy applicant seek appointment statutory trustee sale property pursuant tos 38of theproperty law act 1974 pla respondent claim separate proceeding entitled following payment registered mortgage property entire equity property alternatively exonerated respect applicant interest property whether determination unders 38of pla would inappropriate circumstance counsel fw redmond applicantap collins respondentsolicitors piper alderman applicanthwl ebsworth lawyer respondent 1 1980 respondent mr cameron husband purchased became registered proprietor joint tenant house property kenmore remains family home paid 63 000 property borrowing half bank 2 14 august 2003 mr cameron became bankrupt presentation debtor petition since discharged bankruptcy 3 8 july 2005 mr cameron interest property transmitted official trustee bankruptcy official trustee became remains registered tenant common one half share property 4 official trustee co owner property applied pursuant tos 38of theproperty law act1974

Romeo v Moonee Valley CC [2010] VCAT 1830 (15 November 2010).txt

romeo v moonee valley cc 2010 vcat 1830 15 november 2010 romeo v moonee valley cc 2010 vcat 1830 15 november 2010 last updated 23 november 2010victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p2565 2010applicantgiovanni romeoresponsible authoritymoonee valley city councilsubject land101 north roadavondale height vic 3034where held55 king street melbournebeforedalia cook memberhearing typepractice day hearingdate hearing12 november 2010date order15 november 2010citationromeo v moonee valley cc 2010 vcat 1830orderthe decision responsible authority affirmed extension time granted commencement development permit mv 17873 2006 dalia cookmemberappearances applicantmr daniel bowden town planning consultantfor responsible authoritymr mathew spozio town plannerreasonsbackgroundthe subject land benefit planning permit allowing development second dwelling rear land permit issued october 2006 earlier extension time granted tribunal inromeo v moonee valley cc 1 allowing 1 april 2010 commencement development 1 april 2012 completion development decision deputy president gibson outlined relevant fact planning control changed since grant permit include melbourne airport environs overlay essentially grant permit development question would prohibited transitional provision available 14 may 2008 short time dp gibson decision proceeding advised permit holder undertaken work preparatory permit nature removing shedding tree including significant palm site levelling removal entry gate permit contract documentation conceded mr bowden work constitute commencement sufficient activate permit question since none work expressly require planning permission fact unknown mr romeo thought acted permit within time also reason delay lodging extension time request beyond 3 month statutory period grace mr bowden confirmed applicant seeking extension time commence development would agree complete development date originally fixed deputy president gibson emphasised persuasive reason extension time granted responsible authority supported tribunal disregarding failure make request within time also consented extension time commencement development outset important appreciate tribunal cannot simply rubber stamp request extend time party would consent additional time granted must independently satisfied extension time warranted addition determining exercise discretion disregard failure make request within time consideration applicationdeputy president gibson direction mr romeo explicit paragraph 19 commented important mr romeo act promptly tocommence constructionwithin time extension granted tribunal emphasis therefore even layperson perspective mr romeo aware construction second unit would needed commenced 1 april 2010 distinct site work approval intention commence construction sufficient mr romeo already benefit 12 half month extension permit addition earlier 2 year given commence development first instance time adequate given scale development importantly development would prohibited current planning control tribunal already extended leniency one occasion mr romeo take advantage lifeline given permit recognise applicant propose extension time complete development however persuaded factor definitive view decision tribunal commonly focus keenly whether approved development allowed toproceedat factor greater practical impact opinion nothing fact would support additional extension time face clear comment tribunal required fact extension supported andthe fact development allowed permit would prohibited current overlay control force time permit clearly inappropriate current planning context revived opinion time come compliance current overlay provision even would mean economic disadvantage applicant reached finding planning merit necessary determine whether disregard applicant failure request extension within time dalia cookmember 1 decision dp gibson p3645 2008 delivered 17 march 2009

Primmer v R [2023] NSWCCA 301 (1 December 2023).txt

primmer v r 2023 nswcca 301 1 december 2023 last updated 1 december 2023court criminal appealsupreme courtnew south walescase name primmer v rmedium neutral citation 2023 nswcca 301hearing date 30 october 2023date order 01 december 2023decision date 1 december 2023before davy j 1 cavanagh j 2 sweeney j 3 decision 1 leave appeal granted 2 appeal allowed 3 sentence imposed judge ingram sc 1 july 2022 quashed 4 lieu thereof applicant sentenced offence demand money menace imprisonment 4 year non parole period 2 year 6 month commencing 12 october 2021 sentence expiring 11 october 2025 non parole period expiring 11 april 2024 catchword crime appeal appeal sentence future commencement date sentence delay revocation parole manifest excesslegislation cited crime act 1900 nsw crime sentencing procedure act 1999 nsw case cited bugmy v queen 2013 249 clr 571 2013 hca 37callaghan v r 2006 nswcca 58 2006 160 crim r 145kentwell v queen 2014 252 clr 601 2014 hca 37munda v western australia 2013 249 clr 600 2013 hca 38r v fernando 2002 nswcca 28r v millwood 2012 nswcca 2tompkins v r 2019 nswcca 37white v r 2016 nswcca 190 2016 261 crim r 302zreika v r 2012 nswcca 44 2012 233 crim r 460texts cited nilcategory principal judgmentparties scott primmer applicant rex respondent representation counsel fraser applicant abdulhak respondent solicitor legal aid nsw applicant solicitor public prosecution respondent file number 2020 275723publication restriction nildecision appeal court tribunal district courtjurisdiction criminaldate decision 1 july 2022before ingram sc dcjfile number 2020 275723headnote headnote read part judgment applicant sentenced district court one offence demanding money menace pleaded guilty local court parole time offence came sentenced parole revoked serving balance parole period sentencing judge ordered sentence commence date date imposed sentence applicant contended crown conceded contrary tos 47 5 thecrimes sentencing procedure act 1999 nsw provides court may direct sentence commence day day sentence imposed person serving sentence imprisonment non parole period sentence expired offender still custody sentence resentencing applicant accordance withkentwell v queen 2014 252 clr 601 2014 hca 37the court took account delay sentencing process applicant parole revoked commission offence sentence considered inwhite v r 2016 nswcca 190 2016 261 crim r 302andcallaghan v r 2006 nswcca 58 2006 160 crim r 145 judgmentdavies j agree sweeney j cavanagh j agree sweeney j sweeney j scott primmer applicant seek leave appeal sentence imposed upon honour judge ingram sc 1 july 2022 one offence demanding money menace applicant pleaded guilty offence local court offence contrary tos 99 1 crime act 1900 nsw maximum penalty 10 year imprisonment sentencing judge sentenced applicant 4 year imprisonment non parole period 2 year 6 month commencing 22 september 2022 applicant parole time commission offence parole revoked effect 22 september 2020 sentencing judge accumulated sentence imposed balance parole applicant serving two year arrive commencement date 22 september 2022 applicant relies following ground appeal 1 sentencing judge erred determining commencement date sentence failing consider applys 47 5 thecrimes sentencing procedure act 1999 nsw b failing consider effect delay c failing regard reason revocation applicant parole 2 sentence manifestly excessive crown conceded would open court satisfied error shown respect ground 1 failure regard requirement ofs 47 5 thecrimes sentencing procedure act ground 1 b effect delay commencement date sentence although lesser extent submitted applicant counsel crown counsel applicant appeal proceeded basis sentencing judge receive assistance required issue raised appeal counsel applicant acknowledged applicant legal representative judge ingram sc raise honour matter sought relied applicant faced difficulty arising observation johnson j inzreika v r 2012 nswcca 44 2012 233 crim r 460 81 82 review court discretionary judgment occasion revision reformulation case presented court lightly entertain argument could put advanced plea however counsel relied statement simpson ja inwhite v r 2016 nswcca 190 2016 261 crim r 302and intompkins v r 2019 nswcca per hoeben cj cl 52 53 adamson j 64 omission defence counsel sentencing judge preclude intervention court justice demand intervene simpson ja inwhiteat 127 counsel applicant proceeded basis court accepted concession crown respect ground 1 matter sought relied applicant could taken account court resentencing applicant required bykentwell v queen 2014 252 clr 601 2014 hca 37 crown concede two ground appeal succeed procedural historythe procedural history relevant first three ground appeal applicant arrested 21 september 2020 7 october 2020 state parole authority revoked parole previous sentence balance parole 2 year 8 month 1 week 2 day commenced 22 september 2020 applicant pleaded guilty charge local court 12 october 2021 committed district court sentence first mention district court 28 october 2021 date applicant solicitor told court fact agreed intention obtain report psychologist sentence hearing listed 31 january 2022 day applicant solicitor told court psychologist report available would available 11 february court could squeeze u date sentence hearing listed 5 april 2022 first available date sentence hearing occurred 5 april 2022 honour adjourned matter 3 june 2022 impose sentence 3 june honour unable sentence applicant jury trial adjourned 1 july 2022 date sentenced applicant remark sentencethe sentence proceeded basis agreed fact seems dispute applicant participation event preceded phone call constituted offence honour resolved dispute applicant accordance statement agreed fact fact follows applicant co offender craig argaet known victim roger mcintyre mr mcintyre former business partner jim sweeney knapp mr argaet subcontractor mr mcintyre defunct construction company company registered address elli lane mr mcintyre previous home address company ceased trading around june 2020 mr argaet subcontractor company involvement ceased following dispute quality mr argaet work redone dispute money owed mr argaet said owe mr mcintyre company 3793 mr argaet claimed owed 8916 88 company 11 50pm thursday 10 september 2020 new occupant mr mcintyre previous house elli lane awoken found three men yard calling roger mr mcintyre new owner told roger three men left fact stated mr argaet applicant two three men noted although applicant took position judge ingram sc remained car night honour proceeded basis agreed fact fact offence sentence follows mr argaet provided mr mcintyre detail applicant know mr mcintyre mr argaet encouraged applicant use detail provided demand money mr mcintyre detail provided also enabled applicant find detail mr mcintyre previous business partner mr sweeney knapp 8 44pm friday 11 september 2020 applicant called mr mcintyre private number mr mcintyre home time call lasted 21 minute part conversation went follows primmer gonna fuck arse dead mcintyre know owe money know talking primmer gonna put bullet head rape wife abduct kid mcintyre know owe money primmer owe 15 000 know cuz worked mcintyre recognise voice primmer call frank mcintyre never frank work primmer go back record know primmer 48 hour pay 15 000 gonna get 100 bill gonna call 9 03 tell pay sunday within 72 hour dead mcintyre money primmer guess get one car account number 2008 think cancelling phone answering get worse go police like tell police station front police station scared know dealing call 48 hour whenever mr mcintyre answer something applicant said applicant would say another two grand know gonna hurt kid mr mcintyre left shock call frightened life family mr mcintyre immediately told wife call speaking wife mr mcintyre received message mr sweeney knapp received call man saying mr sweeney knapp pay man 15 000 someone going shoot mr mcintyre called police attended short time later call mr sweeney knapp made 9 06pm friday 11 september 2020 applicant identified frank told mr sweeney knapp 15 grand business partner owes given 48 hour applicant also told mr sweeney knapp could get money business partner would get money mr sweeney knapp mr sweeney knapp told applicant business partner left business year ago applicant said true hear call back know lied come looking applicant told mr sweeney knapp shoot get paid well two one special applicant also challenged mr sweeney knapp fight saying come front punch want applicant said given 48 hour watch news finally applicant told mr sweeney knapp mr sweeney knapp would talking way knew call ended 6 minute mr sweeney knapp google searched found home address mobile phone number available called police police went home sunday 13 september 2020 mr mcintyre bought video surveillance security system home installed wife contacted police concern safety told police caller number traced engage called mr mcintyre went bed 9 00pm threat child mr mr mcintyre slept one child 9 43pm night mr mcintyre received another call applicant answer call applicant left message said oie cunt called three time 63 grand plus kid see fucken soon next morning taking child school mr mr mcintyre went police station reported call mr mcintyre received call applicant applicant arrested monday 21 september 2020 possession mobile phone used make call mr mcintyre mr sweeney knapp denied employed mr argaet extort money roger mcintyre denied one three men attended home elli lane denied knowledge call made mr mcintyre mr sweeney knapp assessing objective seriousness offence honour took account offending occurred four day involved planning included applicant one three men went victim former home apparently looking reiterating threat victim former business partner found effect menace deployed applicant included victim purchasing video surveillance security system home contacting police honour described offence insubstantial objective seriousness honour noted applicant released parole 19 may 2020 approximately four month parole committed offence honour found commission offence conditional liberty aggravating factor honour noted following subjective circumstance applicant 34 year old time offence 36 time sentence honour accepted applicant personal circumstance contained report psychologist anthony diment sentencing assessment report applicant observed domestic violence parent relationship kicked home altercation father defending mother applicant left school year 10 history employment began drinking alcohol excess age 18 19 began using cocaine ecstasy speed pill amphetamine first separation older child mother reported assaulted custody 2015 causing broken jaw eye socket still caused pain required specialist attention followed custody honour noted mr diment found applicant suffering severe anxiety severe depression stress assessed suffering persistent depressive disorder anxiety post traumatic stress disorder noted evidence longer standing depressive traumatic episode arising significant life event reported physical abuse father young age assault custody honour noted mr diment said anxiety depression especially post traumatic stress disorder potential negatively impair person decision making normal judgment thought process particularly situation heightened emotional tension whilst accepting psychological diagnosis made mr diment honour satisfied causal connection mental health issue offence satisfied mental health issue part factual matrix said would taken account formulation finding moral culpability basis would render applicant custodial sentence onerous person suffer condition honour satisfied applicant suffered period insubstantial deprivation childhood adolescence including domestic violence visited upon mother father accordance decision ofbugmy v queen 2013 249 clr 571 2013 hca 37 munda v western australia 2013 249 clr 600 2013 hca 38 r v fernando 2002 nswcca 28andr v millwood 2012 nswcca 2 honour said would take circumstance account tending ameliorate applicant moral culpability honour stated regard relevant objective subjective circumstance applicant insubstantial moral culpability offence honour noted applicant criminal history contained matter assault assault occasioning actual bodily harm sentenced aggregate sentence 8 year imprisonment non parole period 5 year domestic violence offence 2016 honour noted period parole respect sentence applicant breached result commission index offence honour stated satisfied applicant criminal history evidenced proclivity violent offending significantly attenuate leniency might otherwise extended sentence proceeding honour accepted applicant genuinely remorseful offence honour noted applicant assessed medium high risk reoffending honour found applicant guarded prospect rehabilitation considered premature make positive finding applicant unlikely reoffend future honour took account effect covid 19 applicant condition custody honour noted applicant mother suffering stage iii lung cancer honour accepted direct parity issue applicant mr argaet took account circumstance mr argaet sentence honour took account applicant plea guilty local court allowed discount 25 sentence imposed respect commencement date sentence subject ground 1 c honour stated offender arrested 21 september 2020 remanded custody since date usual course sentence imposed would backdated commence date order make proper allowance pre sentence custody however court noted offender parole time commission index offence parole revoked offender required serve balance parole sentence 2 year 8 month 1 week 2 day imposed 7 october 2020 taken commenced 22 september 2020 expire 30 may 2023 therefore period remand point relation index offence offender sentenced today serving balance parole sentence 22 november 2020 honour recorded saying november rather september constitutes pre existing sentence purpose present sentence proceeding court must ensure double count aggravating factor index offence committed parole increasing sentence reflect aggravating factor also simultaneously providing accumulation index offence balance parole sentence therefore applying consideration applying principle totality sentence court satisfied partial accumulation index sentence balance parole sentence warranted properly reflect totality relevant criminality without double punishment involved therefore index sentence taken commenced two year balance parole sentence namely 22 september 2022 honour found special circumstance applicant mental health issue partial accumulation sentence upon balance parole need longer period parole enhance applicant prospect rehabilitation facilitate reintegration back community applying discount 25 honour imposed sentence 4 year imprisonment non parole period 2 year 6 month commence 22 september 2022 expiring 21 september 2026 non parole period expire 21 march 2025 ground 1 sentencing judge erred determining commencement date sentencethe applicant asserted three related error sentencing judge setting commencement date sentence failure consider applys 47 5 thecrimes sentencing procedure act failure consider effect delay sentence proceeding applicant asserted operated disadvantage failure take account parole revoked commission offence sentence backdate commencement sentence balance parole crown conceded error relation application ofs 47 5 thecrimes sentencing procedure actand error respect delay sentence proceeding though extent asserted applicant section 47of thecrimes sentencing procedure actprovides relevantly 47 commencement sentence 1 sentence imprisonment commences subject tosection 71and direction subsection 2 day sentence imposed 2 court may direct sentence imprisonment taken commenced day occurring day sentence imposed b commences day occurring day sentence imposed sentence served consecutively partly concurrently partly consecutively sentence imprisonment 4 day specified direction subsection 2 b must later day following earliest day appears basis information currently available court offender become entitled released custody b become eligible released parole regard sentence imprisonment offender subject 5 direction subsection 2 b may made relation sentence imprisonment aggregate sentence imprisonment imposed offender serving sentence imprisonment way full time detention non parole period set sentence b non parole period sentence expired c offender still custody sentence effect ofs 47and impact delay sentencing revocation parole considered simpson ja inwhite honour statement 118 127 bathurst cj agreed apposite ground appeal matter honour said 118 47 2 b sentencing procedure act court permitted post date commencement sentence sentence served consecutively partly consecutively another sentence imprisonment sub s 4 5 sentence may post dated date later earliest date offender become entitled eligible release parole regard sentence imprisonment served 119 material time notwithstanding revocation parole applicant waseligibleto released parole relation 2008 sentence sentence imposed respect 2013 offence could therefore post dated beyond date imposed delay sentencing extended period accumulation available sentencing judge sentencing judge vastly wider range option commencement date selection would available sentencing taken place shortly say 4 september 2014 earlier applicant plainly disadvantaged delay least last part way attributable 120 argument term addressed sentencing judge argument limited concerning extent backdating directed issue considered inr v kaiva nswcca 9 november 1998 unreported andcallaghan v r 2006 nswcca 58 160 crim r 145 also ventilated application issue overlap revocation parole partial accumulation sentence parole revoked solely commission subsequent offence argument available frequently advanced offender doubly penalised subsequent offence first revocation parole attributable commission subsequent offence second imposition cumulative sentence inr v eric john andrew nswcca 28 april 1993 unreported hunt cj cl difficulty rejecting proposition circumstance offender subject double punishment honour said revocation commission offence show offender unable adapt normal lawful community life therefore longer entitled parole relation earlier offence although evidence inability commission offence see also r v brett john kelly 2000 nswcca 557 121 incallaghani reviewed decision contrary line authority held decline backdate sentence subsequent offence least gave appearance double punishment kaiva seer v kitchener 2003 nswcca 134 122 opinion considerable force argument advanced court advanced sentencing judge delay sentencing caused applicant lose significant advantage would appropriate sentencing judge notionally determine point applicant could reasonably expected sentenced regard date plea directed sentence commence later date latest date would 4 september 2014 matter first listed reached would open consider date date applicant plea guilty 123 view also perhaps le force argument revocation parole referable commission offence parole breach certainly evidence parole breach pre sentence report expressly stated applicant complied supervision maintained scheduled appointment inandrews hunt cj cl notwithstanding firmly expressed view reason revocation parole inability adapt normal lawful community life recognised may situation would backdate sentence subsequent offence 124 somewhat reluctantly come conclusion effect delay sentencing instance circumstance relevant specifically commencement date sentence failure sentencing judge take account represented error sentencing process failure brought omission counsel draw attention sentencing judge detract significance 125 saying conscious observation johnson j inzreika v r 2012 nswcca 44 223 crim r 460at 81 82 johnson j referred number decision victorian court appeal fashion indicate adopted endorsed principle stated romero v r 2011 vsca 45 32 vr 486 11 keane v r 2011 vsca 156at 13 18 bayram v r 2012 vsca 6at 28 29 126 principle stated follows 81 sentencing appeal court reviewing exercise discretionary judgment rehearing plea mitigation occasion revision reformulation case presented court lightly entertain argument could put advanced plea even greater reluctance entertain argument seek resile concession made contradiction submission previously made court spoke need exceptional circumstance done shown compelling material available plea used understood demonstrates miscarriage justice arising plea sentence honour went say 82 rare circumstance factor may operate mitigation penalty appears clearly material sentencing judge may overlooked defence counsel sentencing judge case court may invited regard often circumstance crown accept relevant material raised factor unequivocally operate offender favour sentence warren cj said inbayram v rat 29 may render serious injustice offender able correct error case approach reflects primacy rule appeal ground relate argument put decision made first instance time criminal appellate court able correct miscarriage justice serious injustice clear rare case relevant matter relied upon first instance 127 judgment johnson j carefully worded preclude intervention court justice demand intervene applicant contends crown agrees applicant serving balance parole 1 july 2022 sentenced operation 47 5 precluded setting commencement date date sentence imposed 1 july 2022 error established necessary resentence applicant accordance withkentwell consider issue raised ground 1 b c context resentencing exercise delay sentence proceedingsas articulated simpson ja inwhite question determined point applicant could reasonably expected sentenced regard date plea noted relevant date 12 applicant arrested 21 september 2020 pleaded guilty 12 october 2021 sentenced 1 july 2022 approaching two year arrest nine month plea guilty served 21 month balance parole period 32 month satisfied delay attributable applicant disputing role event victim former home elli lane appears signed statement agreed fact 1 july 2022 ingram sc dcj clearly aware fact agreed treated applicant conduct elli lane accordance agreed fact applicant submitted nine month delay guilty plea entered sentence operated disadvantage crown submitted date applicant could reasonably expected sentenced 3 june 2022 satisfied delay sentence proceeding applicant entered plea guilty caused disadvantage reason revocation applicant parole also related appropriate commencement date sentence revocation applicant paroleinwhite simpson ja referring tocallaghan v r 2006 nswcca 58 2006 160 crim r 145 referred discretion available sentencing judge backdate commencement sentence person parole revoked solely commission subsequent offence avoid double punishment least appearance honour noted always open offender seek granted parole even revocation record decision state parole authority 7 october 2020 stated reason revocation applicant parole breach condition 1 must good behaviour outstanding charge applicant submitted sole reason revocation applicant parole offence sentence court consider fact resentencing whether backdate commencement sentence view regard reason revocation applicant parole appropriate commencement date sentence would closer time applicant entered plea guilty october 2021 part way commencement balance parole period september 2020 commencement date chosen sentencing judge resentencecounsel applicant submitted need resentence applicant court strictly need determine ground 2 appeal relied matter put support ground matter court take account resentencing applicant take issue finding sentencing judge except submitted resentence court would ass offence within middle range offending type counsel accepted applicant criminal history fact parole time offence operated relied statistic judicial commission summary case public defender sentencing table crown referred maximum penalty offence seriousness offence committed le four month applicant released parole criminal record included number offence violence resentencing applicant taken account matter affidavit 25 september 2023 including working undertaking available program mental health effect covid related lockdown particularly mother ill health taken account maximum penalty 10 year imprisonment offence 25 discount plea guilty fact offence including nature threat made mr mcintyre effect family victim former business partner also threatened time offending occurred honour assessment objective seriousness apt fact offence occurred applicant parole offence violence take account applicant subjective circumstance honour took account finding honour made applicant favour sentence reached le imposed honour would maintain finding special circumstance ratio non parole period sentence honour applied consider appropriate backdate commencement sentence date applicant guilty plea reason indicated ordersaccordingly would propose following order 1 leave appeal granted 2 appeal allowed 3 sentence imposed judge ingram sc 1 july 2022 quashed 4 lieu thereof applicant sentenced offence demand money menace imprisonment 4 year non parole period 2 year 6 month commencing 12 october 2021 sentence expiring 11 october 2025 non parole period expiring 11 april 2024

THE STATE OF WESTERN AUSTRALIA -v- WATKINS [2021] WADC 91 (28 September 2021).txt

state western australia v watkins 2021 wadc 91 28 september 2021 last updated 22 october 2021jurisdiction district court western australiain criminallocation perthcitation state western australia v watkins 2021 wadc 91coram petrusa dcjheard 6 august 2021delivered ex temporepublished 28 september 2021file ind 577 2021between state western australiaandkian philip watkinscriminal law declaration person drug trafficker section 32a b themisuse drug act whether offender convicted offence respect prohibited drug quantity le quantity schedule vii relation prohibited drug whether quantity refers weight capsule content content capsule alonelegislation misuse drug act 1981 wa 32a b result declaration drug trafficker grantedrepresentation counsel state western australia mr j j walshaccused m k j loudensolicitors state western australia state director public prosecutionsaccused jeremy noble barrister solicitorscase referred decision calabria v queen 1983 hca 33 1983 151 clr 670director general department transport v mckenzie 2016 wasca 147 2016 77 mvr 306kjl v state western australia 2021 wasca 65lenton v state western australia 2017 wasca 224r v elrayes 2012 219 crim r 567r v punevski 2001 wasca 121reid v director public prosecution wa 2012 wasca 190 2012 224 crim r 100the state western australia v egeland 2018 wasca 228the state western australia v read 2018 wadc 157valerio v state western australia 2 2018 wasca 158 2018 274 crim r 253petrusa dcj decision delivered extemporaneously 23 september 2021 edited transcript 6 august year mr watkins convicted plea guilty two count possession prohibited drug intent sell supply count 1 related 286 capsule mdma located grey duffle bag found wardrobe time sentencing application made basis conviction count 1 declared drug trafficker pursuant tos 32a b themisuse drug act 1981 wa mda application opposed required make order satisfied offence serious drug offence respect prohibited drug quantity le quantity specified sch 7 relation prohibited drug relevant quantity mdma 28 gram issue weight prohibited drug calculated circumstance mdma capsule form state contend relevant weight weight capsule content offender contends weight mdma inside capsule alone case total weight capsule content 55 42 gram whilst nett weight content capsule 26 82 gram common ground meaning prohibited drug purpose sch 3 sch 5 sch 7 includes preparation admixture containing proportion drug seereid v director public prosecution wa 2012 wasca 190 2012 224 crim r 100 issue whether capsule containing mdma preparation admixture containing proportion drug capsule containing mdma either preparation admixture drug trafficker declaration must made term admixture preparation defined themisuse drug act themedicines poison act 2014 wa themedicines poison regulation 2016 wa thestandard uniform scheduling medicine poison 16 susmp general principle statutory construction therefore apply principle conveniently summarised honour bus p indirector general thedepartment transport v mckenzie 2016 wasca 147 2016 77 mvr 306 45 48 murphy ja beech j agreeing honour make clear 48 purpose legislation must derived statutory text assumption desired desirable reach operation relevant provision seecertain lloyd underwriter v cross 2012 hca 56 2012 248 clr 378 26 french cj hayne j intended reach legislative provision discerned word provision making priori assumption purpose seeminister employment workplace relation cth v gribbles radiology pty ltd 2005 hca 9 2005 222 clr 194 21 gleeson cj hayne callinan heydon jj cause consider issue context lsd tab inthestate western australia v read 2018 wadc 157 concluded paper square containing lsd admixture therefore total weight paper lsd relevant weight purpose 32a 5 6 decision set relevant meaning admixture found shorter oxford dictionary south australian case ofr v elrayes 2012 219 crim r 567 definition make clear key feature admixture mingling blending together substance irrespective whether involves chemical bonding view cannot said occurred mdma placed inside capsule capsule containing mdma admixture relevant provision word preparation admixture separated word used disjunctively thus connoting preparation admixture different albeit may overlap turn consider whether mdma capsule form preparation first inelrayes gray j 32 set finding made judge first instance definition various term including preparation upon hearing evidence senior forensic scientist forensic science sa pharmacologist judge first instance found preparation substance altered make amenable use example preparation converting methylamphetamine base salt dissolved injected judicial consideration meaning preparation context themda consideration meaning prepare term used in 6 1 b act invalerio v state western australia 2 2018 wasca 158 2018 274 crim r 253 mazza mitchell jja 248 249 said range possible meaning word prepare includes make ready put due condition something manufacture compound compose macquarie online dictionary defines verb compound number way including make constitute among thing oxford english online dictionary defines prepare produce form make especially bringing together ingredient component manufacture synthesise concoct compound may seen dictionary meaning verb prepares overlap manufacture concept manufacture preparation overlap term also distinct area application example combination chemical create methylamphetamine might regarded manufacture preparation methylamphetamine conversely taking methylamphetamine already usable form diluting cutting agent placing package ready sale may involve preparation manufacture methylamphetamine meaning given prepare invaleriois consistent pronouncement superior court jurisdiction considered word context legislation involving prohibited drug high court incalabria v queen 1983 hca 33 1983 151 clr 670considered 5 2 thenarcotics psychotropic drug act 1934 sa provides person produce prepares manufacture drug act applies shall guilty indictable offence 675 court said prepare word common use mean make ready bring proper state use special technical process although also mean manufacture make compound shorter oxford english dictionary process drying may called special even technical conforms ordinary usage say person dry e g fish fruit coffee bring state fit consumption particular way take part preparation thus ordinary sense word one dry indian hemp order make fit purpose prepares context 5 2 provides reason read meaning word indeed support view drug produced manufactured cultivated may still prepared make fit use case drug question made ready use process exception ofelrayes adopted finding made first instance case considered meaning prepare preparation circumstance word used verb case term admixture preparation used noun judicial consideration constitutes preparation word used noun necessary look dictionary definition may also relevant consider use term preparation medical pharmaceutical context given nature act regulation standard part legislative scheme mda part macquarie online dictionary defines noun preparation variously mean proceeding measure provision one prepares something something prepared manufactured compounded oxford english dictionary online defines action preparing something result preparing thing prepared made ready action specifically prepared made substance medicine specimen prepared medical scientific examination display online medical dictionary defines preparation something made ready medicine mixture histological specimen dorland illustrated medical dictionary 30thed defines preparation act process making ready medicine made ready use anatomical pathological specimen made ready preserved study finally cochran online library collection database medicine healthcare speciality defines pharmaceutical preparation drug intended human veterinary use presented finished dosage form included material used preparation formulation finished dosage form take dictionary definition preparation result action activity undertaken resulted substance made ready put form state used consumed essence product act preparation preparation consistent judicial consideration prepare preparation referred view capsule containing predetermined quantity dose mdma preparation capsule submitted offender packaging akin bottle clipseal bag capsule fundamentally different unlike bottle clipseal bag capsule intended consumed together content without whilst may possible consume content capsule without capsule intended purpose conclusion inconsistent meaning given term divided preparation susmp divided preparation defined preparation manufactured packaged discrete premeasured dosage unit prior sale supply includes tablet capsule cachet single dose powder single dose sachet powder granule see rule 1 1 susmp divided preparation must matter common sense subclass preparation therefore preparation must include capsule listed within definition divided preparation accept offender submission term divided preparation ever used susmpto refer packaging perusal list provided offender place term divided preparation used susmp support submission reference appear schedule susmp reference dosage attract particular rule packaged labelled otherwise dealt completeness neither accept offender contention language used court appeal case involved capsule containing prohibited drug askjl v state western australia 2021 wasca 65 12 r v punevski 2001 wasca 121 21 state western australia v egeland 2018 wasca 228 13 andlenton v state western australia 2017 wasca 224 11 authoritative court case considering issue event without reference certificate analyst assumption made based language adopted court given satisfied capsule containing mdma preparation follows satisfied relevant weight drug case 55 42 gram gross weight capsule content therefore declare drug trafficker respect count 1 indictment 577 2021 certify preceding paragraph comprise reason decision district court western australia msassociate judge petrusa28 september 2021

NUGAWELA and MEDICAL BOARD OF AUSTRALIA [2021] WASAT 147 (22 November 2021).txt

nugawela medical board australia 2021 wasat 147 22 november 2021 last updated 22 november 2021jurisdiction state administrative tribunalact state administrative tribunal act 2004 wa citation nugawela medical board australia 2021 wasat 147member president pritchardheard 12 october 2021delivered ex temporepublished 22 november 2021file vr 71 2021between patrick nugawelaapplicantandmedical board australia wa board first respondentaustralian health practitioner agencysecond respondentpractice procedure application leave commence proceeding pursuant tos 49of thestate administrative tribunal act 2004 wa previous proceeding withdrawn consent application dismiss proceeding unders 47of thestate administrative tribunal act 2004 wa legislation state administrative tribunal act 2004 31 31 3 46 46 1 47 49 87 1 result application dismissedcategory brepresentation counsel applicant n afirst respondent mr etheringtonsecond respondent mr etheringtonsolicitors applicant personfirst respondent clayton utzsecond respondent clayton utzcase referred decision briginshaw v briginshaw 1938 hca 34 1938 60 clr 336reasons decision tribunal reason delivered orally conclusion hearing edited correct matter grammar infelicity expression 20 september 2021 dr nugawela filed application tribunal sought following relief reinstatement vr 50 2020 hearing de novo andstay vr 53 2020 pending hearing separately determined proceeding vr 50 2020 application brought dr nugawela sought review decision australian health practitioner regulation agency ahpra 1 effect registered medical practitioner deregistration decision appears proceeding vr 50 2020 ultimately resolved respondent proceeding reconsidered deregistration decision registered dr nugawela effect september 2020 consequent occurring tribunal made order vr 50 2020 following term 1 pursuant tos 46 1 thestate administrative tribunal act 2004 wa applicant leave withdraw proceeding proceeding hereby withdrawn 2 party bear cost brought end proceeding vr 50 2020 outcome reflected fact dr nugawela success sense relief sought namely reregistration achieved registered medical practitioner september 2020 factual position dr nugawela dispute thereafter registered medical practitioner september 2020 september 2021 registration renewed current year effect september 2021 circumstance proceeding dealt unders 46of thestate administrative tribunal act 2004 wa sat act 49 sat act provides proceeding dismissed struck section 46 another proceeding kind relation matter cannot commenced tribunal without leave judicial member proceeding vr 50 2020 dismissed tribunal withdrawn dr nugawela order made effect therefore might arguable leave commence proceeding required 49 sat act necessary finally determine issue present purpose reason follow arguable withdrawal proceeding vr 50 2020 regard circumstance withdrawn effect dismissal proceeding pursuant 46 case leave required 49 sat act commence proceeding kind despite reference reinstatement vr 50 2020 vr 71 2021 seek alternatively nature proceeding commenced dr nugawela vr 71 2021 misconceived struck tribunal pursuant 47 sat act reason proceeding vr 50 2020 brought dr nugawela effectively challenge deregistration decision achieved success proceeding registration reinstated effect september 2020 dr nugawela say hiatus june september 2020 unregistered even remains case far apparent tribunal would position permitted vr 71 2021 continue make order review deregistration decision would practical utility whatsoever dr nugawela registration since september 2020 effective remains registered practitioner tribunal jurisdiction respect proceeding must lie enabling act confers authority tribunal exercise original jurisdiction review jurisdiction vr 71 2021 dr nugawela appears seek effect review decision ahpra medical board australia board 2 deregistration decision subject proceeding vr 50 2020 seek outcome sense examining basis deregistration 31 sat act decision maker review reviewable decision 31 3 decision maker varies decision set aside substitute new decision unless proceeding review withdrawn taken review decision varied substituted decision case proceeding vr 50 2020 withdrawn decision dr nugawela seek reviewed virtue application vr 71 2021 deregistration decision said decision overtaken event namely dr nugawela registration fact reinstated presently remains registered medical practitioner far apparent tribunal could take action make order would achieve outcome different dr nugawela already achieved namely deregistration decision set aside new decision made register dr nugawela medical practitioner would therefore utility reinstatement use dr nugawela description vr 71 2021 proceeding vr 50 2020 end matter purpose behind application vr 71 2021 appears face application regard dr nugawela said today something different securing dr nugawela registration effect dr nugawela concerned least one issue underlay deregistration decision litigated board part disciplinary proceeding another matter tribunal vr 53 2020 dr nugawela appears concerned potential prejudice issue refer asissues 4 6 3 ventilated vr 53 2020 underlay proceeding vr 50 2020 apparent would prejudice dr nugawela dr nugawela expressed concern described onus proof reversed different certainly case vr 53 2020 onus proof rest board board prove allegation brings dr nugawela civil standard bearing mind thebriginshaw 4 explanation application standard fails board proceeding aspect ground fails dismissed dr nugawela prove anything context sense see prejudice dr nugawela reinstate vr 50 2020 next dr nugawela argued resolution issue 4 6 context review proceeding advance determination vr 53 2020 able explain important necessary resolve issue advance matter relied upon board vr 53 2020 application vr 71 2021 appears really motivated desire dr nugawela part achieve order described stay vr 53 2020 pending determination issue 4 6 context proceeding akin vr 50 2020 see basis reinstate proceeding vr 50 2020 see utility order postpone disciplinary proceeding vr 53 2020 foot since june 2020 drawing thread together conclusion reached case leave tribunal required 49 dr nugawela proceed vr 71 2021 leave refused see tribunal would jurisdiction grant relief sought dr nugawela would effectively different relief effectively achieved vr 50 2020 certainly utility basis information presently available tribunal permitting proceeding kind proceed present proceeding vr 71 2021 simply regarded commencement new proceeding leave required persuaded proceeding permitted continue proceeding view misconceived dismissed 47 sat act dr nugawela suggested although effectively achieved registration result vr 50 2020 nevertheless tribunal could inquire way underlying basis deregistration decision basis party moved beyond virtue reconsideration decision grant registration tribunal could somehow make declaration relation underlying issue quite apart whether could make order accept argument argument view misconceived permitted take tribunal time party resource explored circumstance intend permit vr 71 2021 continue however make observation dr nugawela legal argument relation issue 4 6 open raise legal argument wish relation tribunal determination proceeding vr 53 2020 making observation way seek convey impression indication merit argument necessarily fully understand open put argument wish relation whether tribunal determine issue vr 53 2020 way board submits word legal argument still made dr nugawela without need reinstate proceeding vr 50 2020 purpose coststhe board made application cost respect present application minded make order cost starting point respect cost tribunal 87 1 sat act unless otherwise specified sat act enabling act order tribunal section party bear cost proceeding tribunal vocational regulation proceeding cost sometimes awarded event regulatory body successful however rather unusual different kind case application made vr 71 2021 found misconceived however taken account fact dr nugawela unrepresented clearly difficulty dealing jurisdictional argument arisen respect application matter dealt expedited basis board cost kept low reasonably could circumstance given overlap issue vr 71 2021 issue vr 53 2020 interest justice warrant order cost ordersi make following order pursuant tos 47 1 thestate administrative tribunal act 2004 wa sat act proceeding vr 71 2021 dismissed basis misconceived alternatively extent 49 sat act applies leave commence proceeding refused order cost certify preceding paragraph comprise reason decision state administrative tribunal jkresearch associate honourable justice pritchard22 november 2021 1 application vr 50 2020 vr 71 2020 refer ahpra australian health practitioner agency respondent second respondent respectively 2 ground application annexed application vr 71 2021 dr nugawela refers ahpra medical board relevant decision maker 3 number given relevant issue identified dr nugawela statement issue fact contention vr 53 2020 4 briginshaw v briginshaw 1938 hca 34 1938 60 clr 336 361 362 dixon j

Mark Farag v Dental Corporation Pty Ltd [2021] FWC 6212 (27 October 2021).txt

mark farag v dental corporation pty ltd 2021 fwc 6212 27 october 2021 last updated 27 october 2021 2021 fwc 6212fair work commissiondecisionfair work act 2009s 394 unfair dismissalmark faragvdental corporation pty ltd u2021 7724 deputy president massonmelbourne 27 october 2021application made pursuant tos 399ato dismiss application unfair dismissal remedy 1 31 august 2021 mr mark farag applicant lodged application fair work commission commission pursuant tos 394of thefair work act 2009 act asserts termination employment dental corporation pty ltd respondent unfair 2 application dismiss applicant unfair dismissal application pursuant tos 399ahas made respondent background thes 399aapplication may shortly stated follows 3 matter allocated chamber 2 september 2021 determination respondent filed form f3 within raised number jurisdictional objection application filed outside 21 day statutory time period applicant employee contended dismissal initiative respondent 4 direction issued party 6 september 2021 setting timetable filing material party relation extension time matter additional jurisdictional objection raised matter listed hearing 21 october 2021 deal extension time jurisdictional objection 5 direction issued party relevantly set following relation compliance direction non compliance direction 6 deputy president accept material filed expiry timeframe unless extension sought granted deputy president prior expiry timeframe 7 request extension time must made chamber writing timely manner specify substantial ground party must assume extension time granted 6 direction required applicant file serve respondent close business 20 september 2021 submission witness statement material sought rely relation extension time required filing unfair dismissal application respondent required file close business 4 october 2021 response extension time issue material sought rely relation jurisdictional objection raised 7 applicant afforded opportunity reply close business 18 october 2021 applicant filed initial material relation extension time issue failed file reply material close business 18 october 2021 accordance direction result applicant failure file material reply matter listed non compliance hearing 9 00 20 october 2021 8 non compliance hearing application pursuant tos 399awas made respondent requesting application dismissed reason failure applicant comply direction order commission 9 hearing set 21 october 2021 deal jurisdictional matter vacated direction issued chamber 20 october 2021 directing applicant file submission material seek rely response 339a application close business friday 22 october 2021 respondent provided opportunity reply close business tuesday 26 october 2021 party filed material accordance direction 10 party also advised either party seek heard relation thes 399aapplication contact chamber otherwise matter would dealt paper 11 material filed applicant 22 october 2021 following point made following dismissal anxious unfamiliar relevant legislation commission process applicant engaged mr gary dircks relation consultant represent proceeding mr dirk advised applicant 6 october 2021 longer able represent matter mr dircks subsequently filed f54 12 october 2021 notifying commission ceased act applicant following mr dircks withdrawal representation applicant sought alternate representation 18 october 2021 able secure new representative initially left matter hand mr dircks applicant say overlooked requirement file reply material close business 18 october 2021 alerted oversight correspondence received respondent seeking advice intending file reply material applicant acknowledged oversight failure contact commission circumstance unable comply direction consideration 12 section 399aof act provides follows 399a dismissing application 1 fwc may subject subsection 2 dismiss application order division 4 fwc satisfied applicant unreasonably failed attend conference conducted fwc hearing held fwc relation application b failed comply direction order fwc relating application c failed discontinue application settlement agreement concluded 2 fwc may exercise power subsection 1 application employer 3 section limit fwc may dismiss application 13 application pursuant tos 399ahas made respondent significantly respondent one jurisdictional objection dispute applicant employee respondent purpose however 399aapplication accept respondent employer notwithstanding jurisdictional objection matter employment status applicant find respondent standing make thes 399aapplication 14 would observe power dismiss application exercised cautiously full bench observed injohn cole v roy hill station pty ltd roy hill station 1 court long held power dismiss substantive application exercised cautiously sparingly fortiori appellant sought order relief alleged unfair dismissal result complete extinguishment applicant right application relief order beneficial legislation heard determined according law short application dismissed applicant day court appellant pleaded wanted case heard 2 15 clear applicant engaged mr dircks relation represent following dismissal evident f2 filed mr dircks applicant behalf submission material also filed mr dircks applicant behalf 17 september respect extension time issue consistent direction issued commission 6 september 2021 mr dircks advised applicant 6 october would longer represent withdrawal representation formally notified commission 12 october 2021 16 applicant may rightly criticised failure file reply material accordance direction moreover failed notify commission advance deadline filing material would unable comply direction despite clear warning provided direction potential implication non compliance applicant say defence checked direction incumbent aware obligation even point mr dircks withdrew representing 17 applicant notice 6 october 2021 mr dircks would longer act behalf 12 day prior date applicant reply material due filed accept applicant may difficulty securing new representative prevented notifying chamber difficulty experiencing might impact compliance direction prevented preparing submission witness statement response material filed respondent preferred secure new representative circumstance may understandable however non compliance direction either ignorance oversight without communication chamber consequence forcing vacation 21 october 2021 hearing date short notice 18 notwithstanding applicant omission singular one noted partially complied initial direction filing material relation extension time issue failure comply direction respect reply material neither wilful indicative pattern non compliance unreasonable conduct accept oversight arose applicant initially placed faith former representative representative withdrew applicant turned attention securing fresh representation applicant oversight led vacating hearing set 21 october 2021 delay applicant detriment would view prejudice respondent given already filed material omission circumstance rise level unreasonable one 19 respondent refers previous case support submission applicant right case heard qualified obligation prosecute case 3 circumstance case distinguished applicant matter resisted conciliation attempt demanded matter proceed arbitration failed comply initial date filing material revised date granted commission applicant matter failed address application unfair dismissal application dismissed pursuant tos 399aand 587of act 20 respondent also contends dismissal applicant application unfair dismissal remedy pursuant tos 399awould consistent object ofpart 3 2of act part requires fair go round accorded employer employee concerned would sympathetic submission respondent could point prejudice would suffer consequence applicant omission stated respondent already filed material hearing listed 21 october 2021 21 regard persuaded exercise discretion dismiss applicant application unfair dismissal remedy pursuant tos 399a circumstance would arbitrary inappropriate given nature omission complete extinguishment applicant right pursue case would disproportionate response applicant oversight thes 399aapplication dismissal applicant application unfair dismissal remedy consequently dismissed 22 matter relisted hearing jurisdictional objection raised respondent applicant afforded seven 7 day within file material reply filed respondent direction shortly issued deputy president 1 2019 fwcfb 2925 2 ibid 31 3 4spence v urm australia 202 fwc 3964 printed authority commonwealth government printer pr735266

Brown and Australian Securities and Investment Commission [2009] AATA 286; (2009) 108 ALD 625 (27 April 2009).txt

brown australian security investment commission 2009 aata 286 2009 108 ald 625 27 april 2009 last updated 15 december 2010catchwords corporation security lodged relation dealer licence whether applied compensate licensee client whether failure licensee carry business licence adequately properly whether client suffered pecuniary loss due failure decision set asideadministrative decision judicial review act 11australian security commission act 1989 11australian security investment commission act 1989 11corporations act s 2 18 19 20 21 786 826 830 837 842 843 844 845 849 850 851 911a 913b 1430 1431 1432 1436 1437corporations amendment regulation 2002 2 rr 2 3corporations law s 9 18 19 20 21 92 1 784 786 2 786 9 786a 826 827 830 837 842 843 844 845 849 850 851corporations legislation amendment act 1990 2 1 corporation regulation rr 7 3 03 7 3 04 7 3 05 7 3 06 7 3 07financial service reform act 2001 s 2 3aequitas v sparad 100 limited formerly australian european finance corporation limited 2001 nswsc 14 2001 19 aclc 1006alexandra private geriatric hospital v blewett 1984 2 fcr 368 56 alr 265astley v austrust ltd 1999 197 clr 1 73 aljr 403 161 alr 155australian security investment commission v citigroup global market australia pty ltd160 fcr 35 2007 fca 963barrett v minister immigration local government ethnic affair 1989 fca 269 1989 18 ald 129beach petroleum nl v kennedy or 1999 nswca 408 1999 48 nswlr 1breen v williams 1996 186 clr 71 43 ald 481 70 aljr 772brisbane south regional health authority v taylor 1996 hca 25 1996 186 clr 541 70 aljr 866 139 alr 1bristol west building society v mothew 1998 ch 1brown v director public prosecution 1956 2 er 189 2 qb 369brown v federal commissioner taxation 1999 fca 563 42 atr 118 99 atc 4516budd v secretary department education employment workplace relation 2008 fca 1540buzza v comptroller stamp victoria 1951 hca 16 1951 83 clr 286 25 alj 23capricorn financial planner pty ltd v australian security investment commission anor 1999 fca 558 1999 17 aclc 855chalk v commissioner superannuation 1994 fca 1063 1994 33 ald 420 50 fcr 150cic insurance ltd v bankstown football club ltd 1997 187 clr 384 71 aljr 312 141 alr 312comcare v hearn 1993 fca 498 1993 45 fcr 441 119 alr 85cooper brooke wollongong pty ltd v federal commissioner taxation 1981 hca 26 1981 147 clr 297 55 aljr 434 35 alr 151daly v sydney stock exchange limited 1986 hca 25 1986 160 clr 371 60 aljr 371 65 alr 193dix v client compensation tribunal 1993 vicrp 21 1993 1 vr 297doyle v chief staff 1982 fca 124 1982 4 ald 636 71 flr 56 42 alr 283federal commissioner taxation v brown 1999 fca 1198 1999 42 atr 672 99 atc 4852 1999 fca 1198finance facility pty ltd v federal commissioner taxation 1971 hca 12 1971 127 clr 106 45 aljr 241hadid v lenfest communicatioins inc 1999 fca 1798hospital product ltd v united state surgical corporation 1984 hca 64 1984 156 clr 41 58 aljr 587 55 alr 417hunter valley development pty ltd v cohen 1984 fca 176 1984 3 fcr 344 7 ald 315 58 alr 305hyde v sullivan 1956 sr nsw 113james v commonwealth bank australia 1992 fca 420 1992 37 fcr 445 109 alr 334leach v r 2007 hca 3 2007 230 clr 1 81 aljr 598 232 alr 325lucic v nolan 1982 45 alr 411mersey dock harbour board v henderson bros 1888 13 ac 595phillips v australian girl choir pty ltd anor 2001 fmca 109pilmer v duke group ltd liq 2001 hca 31 2001 207 clr 165 75 aljr 1067ralkon v aboriginal development commission 1982 5 ald 42 1982 fca 153 69 flr 328 43 alr 535re drake minister immigration ethnic affair 2 1979 aata 179 1979 2 ald 634re jade australian postal commission 1979 2 aldre osborne australian security investment commission 2000 aata 917repatriation commission v tuite 1992 fca 415 1992 37 fcr 571 27 ald 609samad v district court nsw 2002 hca 24 2002 209 clr 140 76 aljr 871 189 alr 1tcn channel nine pty ltd v australian mutual provident society 1982 fca 169 1982 62 flr 366 42 alr 496wacando v commonwealth 1981 hca 60 1981 148 clr 1 56 aljr 16 37 alr 317ward v williams 1955 hca 4 1955 92 clr 496wedesweiller v cole 1983 fca 94 1983 71 flr 256 47 alr 528windshuttle v commissioner taxation 1993 fca 553 1993 46 fcr 235 27 atr 88 93 atc 4992decision reason decision 2009 aata 286administrative appeal tribunal 2008 3115general administrative division richard st john brownapplicantand australian security investment commissionrespondentdecisiontribunal deputy president forgiedate 27 april 2009place melbournedecision tribunal affirms decision respondent dated 2 july 2008 extend time within mr michael gurry might lodge claim underr 7 3 04 c thecorporations regulationsto security bond lodged richard st john brown associate applied compensate certain pecuniary loss andin relation decision apply security bond 1 set aside decision respondent dated 2 july 2008 2 substitute decision security bond lodged richard st john brown associatesnotbe applied compensate mr michael gurry pecuniary loss forgiedeputy presidentat relevant time mr richard st john brown director secretary richard st john brown associate rsjba 1 rjsba deemed licensed thecorporations law law required maintain australian security commission asc australian security investment commission asic security approved amount 20 000 mr michael gurry approached rsjba investment advice mr brown gave advice behalf 2 realising investment recommended mr brown mr gurry claimed suffered pecuniary loss due rjsba failure carry business licence adequately properly dissatisfied mr brown response complaint loss mr gurry made complaint financial industry complaint service ltd fics fics resolved complaint favour 28 february 2005 decided rjsba pay mr gurry sum 8 000 together interest rate 5 compound per annum 30 august 2001 date payment basis shared responsibility complainant loss mr brown refused pay fics unsuccessfully took step enforce decision mr gurry asked asic 12 may 2006 apply security compensate pecuniary loss considered due rjsba failure carry business licence adequately properly claim made well beyond time permitted mr gurry asked time within could claim security bond extended 3 asic decided extend time enable mr gurry claim security bond also decided pecuniary loss resulted failure rjsba carry business adequately properly sufficient justify application 8 000 together interest rate 5 compound per annum 30 august 2001 date payment 20 000 security compensate claimant 2 4 decided affirm asic decision extend time within mr gurry might apply security bond applied compensate decided security bond applied summary decided established suffered pecuniary loss due failure rjsba mr brown carry business rjsba licence adequately properly therefore set aside asic decision regard substituted decision mr gurry entitled compensated security bond background5 number factual matter case dispute case light basis material given set finding fact made matter mr michael gurry6 basis oral evidence find mr michael gurry secondary school teacher teaching math science wife consulted rsjba financial advice time decided rsjba dealer licence7 5 march 1996 delegate australian security commission asc issued dealer licence rsjba basis licensed thesecurities industry victoria codeand deemed licensed thecorporations law law delegate went state rsjba would continue licensed dealer 784 law subject condition restriction prescribed well ten condition endorsed dealer licence licence granted effect 5 march 1996 3 among condition endorsing rsjba dealer licence shall lodge maintain asc security approved asc amount 20 000 4 rsjba lodged security asc 5 mr brown first meeting mr gurry8 mr gurry heard mr brown wife sought professional advice regarding financial planning met 1 march 2001 rsjba personal financial plan dated 18 march 20019 18 march 2001 mr brown sent mr gurry plan described limited advice plan said designed basis information provided discussed meeting prepared plan authorised representative rsjba mr brown invited mr gurry call question regarding plan felt relevant information might overlooked important wrote ensure information contained plan correct implemented 6 report began mr gurry personal detail including age marital status income together objective build superannuating benefit remaining 5 year diversify growth sector 5 7 year time horizon 7 report listed mr gurry asset fund available investment followed list recommended area investment 8 amount allocated 10 recommended area investment zurich superannuation planinternational share fund 50 000cml first state australian share fund 20 000managed growth fund 30 000australian share fund 10 000colonial first state investment manager australia limited superannuation rollover fundhigh growth option 10 000global share option 12 000global health biotechnology fund 3 134 135 134 9 11 report continued commentsyou requested specific advice investment superannuation fund financial resource total amount 135 134 plan limited provision advice objective understand broadly described desire ensure maximise growth value investment minimise effect taxation specifically established objective follows use superannuation fund financial resource provide source fund capital growth provide retirement need adopt managed investment strategy reviewed least 12 mths believe adopting strategy recommended report greater chance achieving objective considered option available achieve objective included strategy feel appropriate based criterion provided basis recommendationthe recommendation follow based information provided u havemisinterpreted information made assumption incorrect advise u immediately may impact recommendation made recommendation also based understand risk profile investment time frame risk profilein making investment fund recommendation necessary consider tolerance risk discussion arrived risk profile rating moderately assertive classify follows moderate assertive investor understands movement investment market interested maximising long term capital growth happy sacrifice short term safety order maximise long term capital growth long term 6 year beyond 10 12 followed assessment asset allocation mr brown recommended aware many factor considered developing investment portfolio particular investment vehicle sector asset allocation dependent upon individual circumstance belief attitude arrive appropriate asset allocation considered attitude investment goal future together current economic condition research investment fund suggested allocation provide level diversity require portfolio reducing risk exposure one particular region industry investment manager 11 13 mr brown followed profile two company behind investment recommending analysis investment analysis investment included objective investment fund strategy fund size investment time horizon investment mix performance since inception estimated performance fee charge 14 near end financial plan mr brown wrote investment involve varying degree risk many outcome associated investment influenced factor beyond investor control affect investment return market risk result negative movement affect value asset particular market fall share market price would create reduced value investment sector fund invested overseas market influenced share price also movement country currency currency risk occurs movement foreign currency relative australian adversely affect domestic value fund overseas income derived volatility necessarily constitute risk element risk generally determined time horizon adopted investment timing respect entry exit particular investment long term investment 5 10 year significantly reduces risk factor importance event affecting investment cannot always anticipated therefore always possible protect investment risk share trust perceived volatile investment property follows scale risk fixed interest cash asset fund rise fall value investment trust also carry varying degree risk 12 15 plan concluded disclaimer began statement rsjba provided advice good faith based upon government legislation day 13 went disclaim responsibility liability loss arising advice permitted law time 14 undertaking given accuracy reliability information upon advice based guarantee undertaken term future performance investment recommended 15 rsjba rollover investment plan dated 15 may 200116 15 may 2001 mr brown wrote mr gurry many respect letter covered similar material covered previous letter began following paragraph thank opportunity discus financial position specifically regard superannuation arrangement preparing recommendation careful consideration given current situation concern need goal objective well attitude towards investment insurance based information gathered meeting 1 03 2001 detail changed since discussion important let u know proceed following plan provides investment recommendation read plan suggest discus recommendation area clear mind answer question may provide detail requested 16 17 investment plan enclosed letter entitled rollover investment plan written different format financial plan contained much type information bottom cover page note read part important documentthis customer advice record read carefully make sure understand anything disagree understand please contact richard brown 17 18 executive summary began noting mr gurry asked advice commutation government superannuation fund pension lump sum rollover amount 130 163 plan limited provision advice mr gurry objective mr brown wrote objective understand broadly described desire ensure maximise growth value investment minimise effect taxation specifically established objective follows protect current value rollover use rollover increase net portfolio value hence net wealth position taking account inflation use rollover provide source fund capital growth provide retirement need invest fund way minimise taxation investment income easily managed investment strategy reviewed regularlywe believe adopting strategy recommended report greater chance achieving objective 18 19 immediately executive summary second heading basis recommendation followed passage recommendation follow based information provided u misinterpreted information made assumption incorrect advise u immediately may impact recommendation made recommendation also based understand risk profile investment time frame described later also checked accuracy description investor plan also contains forecast projection believe reasonable please aware however forecast guarantee forecast made light available information regarding investment also regard investment timeframe investment particularly sharemarket investment volatile short term le longer investment held considered option available achieve objective included strategy feel appropriate based criterion given 19 20 mr brown described mr gurry risk profile making investment fund recommendation necessary consider tolerance risk discussion arrived risk profile rating prudent classify following prudent investor seeking greater growth component investment protect capital tax inflation remain curious towards taking high level risk however general understanding investment market enables feel comfortable short term risk priority consistent capital growth income smooth return based risk profile rating recommend investment strategy asfollows prudent portfolio higher exposure growth asset conservative style portfolio aim produce capital growth medium term balanced exposure share property fixed interest asset provides diversification whilst reducing volatility definition time frame usedshort term call 3 yearsmedium term 3 year 6 yearslong term 6 year beyondplease satisfy fair description investor need ensure investment recommended match profile 20 21 mr brown went recommend rollover amount commutation mr gurry pension invested managed fund overall asset allocation match risk profile recommended done mean strategy retirement fund investment asset allocation strategy reviewed regular basis remainder report mr brown gave detailed explanation recommending investment strategy described fund feature service would make available mr gurry summarising recommendation set rollover amount initial contribution fee 4 560 67 division remainder rollover amount cash account strategy retirement fund portfolio described prudent prudent fourth six portfolio named conservative cautious defensive prudent assertive aggressive 21 22 mr brown told mr gurry implement recommendation would need talk u still concern question regarding plan 22 agreed recommendation would like proceed would need sign authority proceed attached report well complete application form found prospectus information brochure sent report 23 report also included several paragraph heading disclaimer paragraph began statement mr brown rjsba responsible ensuring recommendation included plan reasonably based made regard stated investment objective financial situation particular need otherwise liability accepted loss incurred person reliance statement information contained letter note projection growth report determined used indicate estimated return may achieved medium long term investment return guaranteed 23 24 appendix b report headed additional investor information 24 began statement effect return received investment largely depends upon segment investment market made proportion invested segment statement followed section headed risk return equation despite attempt investment promoter year convince investor contrary hiding fact higher level return offered investment higher risk investment suffer loss capital value least short term word investment return therefore value investment fluctuate hence risk investment context usually measured relative amount fluctuation return different investment investment characterised return go regularly sometimes severely volatile said risky one whose return even time therefore cash regarded low risk stable investment share generally volatile risky short term many investment available differing level risk people comfortable risk others need sure money managed line level risk comfortable clearly better management investment higher return could get acceptable level risk taken table following page provides indication return available various market sector long period 25 25 table set market return year 1990 1999 relation cash australian fixed interest international fixed interest australian share international share australian listed property together annualised ten year return mr brown followed table following passage indicated higher return come growth asset namely australian international share also carry greatest degree risk therefore managing investment important consider risk reduced well look maximise return 26 26 followed passage regarding diversification international share market investment australian share market investment income capital growth dividend imputation dollar cost averaging investment time frame reason choosing managed investment fund master fund passage diversification introduced rest key reducing risk called diversification word spreading risk putting egg one basket objective diversification maximise total return portfolio given level risk conversely minimise risk given level return diversification reduces risk reduces volatility return economy financial market constantly changing history show type investment behave way time change return one asset class often compensated change opposite direction another asset class better diversify investment le likely poor performance one investment major impact value overall return total portfolio conventional wisdom also hold longer investment horizon higher weighting growth asset like share property wish get growth value fund must look growth asset predominantly share internationally also property 27 27 investment time frame appeared following time period considering investing important considering financial asset equity return form dividend capital growth guaranteed possible experience period negative growth hand investment bond fixed interest asset much lower risk paying coupon orinterest however due lower risk offer lower return equity fair investor expect higher return higher risk ie risk negative return accept investment recommendation since fixed interest product bond pay regular amount interest set interval ie anannuity time frame investing relatively short term considering asset class fixed interest cash time frame 3 year le may appropriate fund low risk provide positive return shorter period considering growth investment australian share fund time frame approximately 5 year necessary mean cannot access fund anytime investing prepared leave fund period order ride high low come investing share market 28 letter rsjba mr gurry dated 24 may 200128 mr brown wrote mr gurry 24 may 2001 referring discussion mr gurry email 22 may 2001 enclosed detail variation discussed mr brown asked mr gurry sign document return envelope provided attachment showed available investment1 mercantile mutual balanced fund 27 1852 amp wol policy 19 1623 superannuationstrategic 2 963vicsuper 320vicsuper 22 480 76 223nab flex 50 460 122 570 new area investmentsuperannution zspinternational share fund 50 000cml first state aust share fund 20 000managed growth fund 25 000australian share fund 10 000colonial first state rollover superannuation fundglobal share option 5 000global health biotechnology fund 3 408 113 408non superannuationcolonial first state investment manager australia limitedhigh growth option 9 162 122 570 29 mr brown customer advice record sent signed mr gurry period july august september 200129 9 july 2001 mr brown wrote two letter mr gurry enclosing customer advice record colonial first state rollover superannuation another zurich superannuation perusal safekeeping askedmr gurry sign bottom letter return mr gurry sign letter 7 august 2001 returned rsjba sent copy record 30 30 customer advice record began statement important document read carefully make sure understand anything disagree understand please contact life insurance adviser life insurance company whose product recommended may want consult adviser change mind policy decide buy action decide take statutory 14 day cooling period life insurance company may give longer may cancel life insurance policy find detail cooling period policy document key feature statement 31 31 completed way part b concerned information used giving advice part 4 1 completed said advice recommendation based fact finder dated 20 september 2000 set brief summary fact fact finder advised mr gurry might obtain copy fact finder asking adviser colonial first state rollover superannuation read client want consolidation fund direction towards accumulation retirement 32 32 customer advice record ticked box said mr gurry elected receive advice limited range product adviser offer superannuation rollover important notice please noted providing complete information may receive inappropriate advice thus make financial commitment life policy may appropriate need objective 33 33 conclusion part b customer advice record appears following statement important notice life policy sold without completion fact finder may appropriate need receiving advice risk making financial commitment life policy may appropriate need objective 34 34 customer advice record noted mr gurry would make investment approximately 8 900 reason type product recommended likely satisfy mr gurry need objective said product design suitable retirement accumulation lump sum retirement 35 particular product recommended likely satisfy mr gurry need objective product provides wide selection quality performance fund 36 35 customer advice record relation zurich investment summarised fact fact finder together mr gurry identified need objective client want consolidation fund taxationeffective accumulation fund retirement 37 mr gurry elected receive advice superannuation rollover product 105 000 invested recommended reason similar given investment colonial first state rollover superannuation 36 rjsba sent similar letter attachment mr gurry regarding investment 2 317 67 zurich superannuation plan dated 5 september 2001 time customer advice record noted fact finder prepared note date prepared part c dealt adviser recommendation set mr brown recommendation 2 317 67 placed zurich superannuation plan half would international share half australian share reason recommended product likely satisfy mr gurry need objective said client need retirement saving vehicle good performance investment reasonable fee charge 38 37 next passage passage addressing particular product likely satisfy mr gurry need objective client discussion financial need analysis agreed need accumulate retirement product specified fulfilled need 39 38 three customer advice record ended adviser declaration customer declaration signed mr brown began declaration customer advice record accurate complete record advice recommendation gave customer 40 customer declaration signed mr brown stated read understood customer advice record declare accurate complete 41 event affecting mr gurry investments39 mr gurry wrote note dated 16 december 2008 setting view regarding investment event 11 september 2001 asian market crisis said totally unprepared event would investment shocked see going value richard talked potential investment made anxious actually losing value yes investment documentation refer risk investing advisor emphasise point discus seriously regard significant one point defence risk potential outlined documentation really using weak defence horse bolted expected take issue seriously 42 40 mr gurry went explain met mr richard mclean mr brown sold business happened time march 2002 mr gurry said wife meeting mr mclean continued one meeting expressed concern investment richard set mr mclean would managing looked said quite high risk investment type investment would chosen comment obviously created concern therefore chose get second opinion investment original advisor bill harding used richard agreed mr mclean sic assessment raised concern issue portfolio pension commuted lump sum without significant reason outlined writing decision surprised put high risk investment memory earlier dealing high risk investor asked richard proper fact find prepare investment portfolio showed example one said remember seeing thick detailed document like would go back correspondence richard could produce fact find document based opinion felt richard given good service sent first letter complaint 15 10 02 seeking compensation inappropriate improper investment advice also made arrangement transfer investment across bill harding gracious enough take back client chose moderate portfolio line risk profile 43 cessation rsjba carrying business dealer licence41 period ill health mr brown retired 4 april 2002 give advice deal security date rsjba continued hold dealer licence rsjba dealer licence formerly revoked until23 january 2004 order made 23 january 2004 taking effect day later 44 although dealt security dealer licence remained foot mr brown applied revocation basis ceased carry business related 45 mr gurry complaint set letter dated 15 october 2002 mr brown42 mr gurry attached complaint copy letter dated15 october 2002 mr brown letter read believe given inappropriate improper investment advice reason risk profile satisfactorily assessed implication confusion profound first meeting richard march 1 2001 meeting reviewed current investment said would better money aggressive fund although involved entry fee performance fund would far outway sic upfront expense unsatisfactory risk profile assessment little advice implication risk profile setting letter dated march 18 somehow given assessment moderately assertive investment portfolio set advised degree risk involved assessment especially due high exposure local international share letter dated 15 may 2001 related strategy retirement fund investment risk profile stated prudent based information gathered meeting 1 03 2001 could risk profile moderately assertive prudent interview implication difference term money would invested never explained believe proper assessment risk prudent persuaded cash current investment time transfer money risky investment without proper justification full explanation risk involved also incurred exit fee persuaded commute government pension lump sum without appropriate justification strategy advice consider good idea amp insurance policy cashed without strategy explanation would good idea compared possible option eg endowment policy many discussion constantly emphasized potential gain made without stressing possible risk involved investment disclaimer notice attached march 18 document try absolve licensee responsibility absolute nonsense carry weight relevant situation seek compensation form refund commission paid inappropriate investment advice b compensation yet determined form loss incurred result inappropriate investment due incorrect assessment risk profile 46 mr brown response dated 13 november 2002 mr gurry complaint43 mr brown responded mr gurry complaint 15 october 2002 letter dated 13 november 2002 letter response detailed began explanation rsjba established risk profile risk profile established collection personal data client defining attitude respect various aspect investment actual profile may vary terminology depending upon advisor dealer fund manager term information provided discussion classified profile moderately aggressive profile used strategy investment prudent closest category term sector choice would see prudent investor marginally conservative moderately aggressive defined investment sector strategy fund follows cautiousdefensiveconservativeprudentassertiveaggressivethe dissection monies strategy prudent fund follows australian fixed interest 21cash 15property 10australian share 34international share 20100 47 44 mr brown went quote number passage two report prepared mr gurry appear passage referred mr brown also made number observation refer selection variation risk profile asset allocation received either term discussion writing accordingly assumed assessment risk profile asset allocation accord perception furthermore request proceed copy attached indicative acceptance share market within australia internationally fallen significantly past 2 year internationally fall influenced world terrorist activity poor economic condition prevalent u japan europe current market sustained prolonged downturn longer normally experienced market always come back historically rise previous high point time horizon asset allocationour letter 18thmarch 2001 indicated proposed time horizon 5 7 year page 2 objectiveto build superannuation benefit remaining 5 year diversify growth sector 5 7 year time horizon 48 risk interviewit always business practice discus risk factor discussion prior implementation financial plan information subject open discussion well confirmed writing indicated adequate opportunity vary investment prior plan implementation change requested written request accept recommendation proceed implementation enclosed proposed time frame investment 5 7 year investment force 5 sic month therefore assessment term recommendation made time disclaimercontrary comment disclaimer constitute essential part advice copy disclaimer attached summaryyour risk profile assessed term information provided assessment conveyed writing opportunity contest accuracy sic communication made either writing verbally asset allocation investment made writing opportunity sic variation required risk equation explained interview confirmed writing time horizon proposed financial plan indicate sic 5 7 year investment force 15 month therefore assessment made written authority proceed strategy held 49 mr gurry response dated 19 december 2002 mr brown response45 letter dated 19 december 2002 mr gurry told mr brown satisfactorily addressed concern regarding inappropriate improper investment advice pointed different description given risk profile moderately aggressive moderately assertive belief mr brown explained arrived risk profile mr gurry also told mr brown given adequate explanation complaint expanded upon 50 mr brown response dated 4 january 2003 mr gurry response46 letter dated 4 january 2003 mr brown replied mr gurry letter 19 december 2002 advised mr gurry liberty direct complaint fics gave address telephone number mr brown also responded specific matter mr gurry raised 1 comment stating paragraph documentation already exists correct documentation confirms written option available dispute risk assessment make aware risk proceed investment vary recommended time horizon risk profile established interview fact finder definition splitting hair written submission provided adequate opportunity respond concur analysis variation ever tendered otherwise recommendation would varied reason cash existing investment provide higher return growth investment nominated time horizon explained interview including element risk volatility confirmed written correspondence exit fee investment entry fee fund manager chosen high regard investment sector selected provide good historical return diversification fund always important selected area investment volatile rather high risk accordingly time horizon always important selecting growth hence nominated period 5 7 year selection sector would never included 1 3 year time horizon making assessment within 15 month way outside parameter recommendation recommendation commute proposed pension investment long term would beneficial recommendation cash amp policy based following premise longer required death cover therefore paying something need b bonus life policy low low interest environment investment growth area long term would provide better return totally reject claim implication investment explained every clientat interview immediately prior investment received benefit full discussion nature selection fund managerb sector choicec stock market movement volatilityd importance time horizonthis information also included written submission 51 mr gurry complaint fics47 mr gurry made complaint fics dated 19 february 2003 52 financial advice received rjsba regarding superannuation managed fund estimated amount dispute 16 163 00 said complaint concerned inappropriate advice occurred began on1 march 2001 attached letter mr brown indicate scope complaint also complained mr brown response felt shown little empathy 53 concern addressed concern satisfactorily 48 mr gurry told fics september last year 2002 two financial advisor look financial plan investment selection richard chose saw separately yet felt chose high risk area inappropriate moderate prudent risk profile also pointed issue included letter richard recall mentioning one occasion investment finalised concerned high entry fee etc assured worry performance investment make initial cost involved typical whole approach spite proviso may written financial plan 54 49 mr gurry told fics include strategy retirement fund claim although made substantial loss spread investment sector prudent category probably well balanced 55 50 mr gurry told fics calculated amount claimed compensation way 1 imbursement commission paid 5 481 88 314 727 24 6 523 12 2 50 compensation due loss incurred result inappropriate advice 50 15 085 56 1 450 89 2 743 49 9 639 97 1 2 16 163 56 51 fics sent complaint mr brown away victoria replied letter dated 16 march 2003 response detailed already referred substance reason mr brown also set procedure adopted new client initial interviewprovision adviser service guide brochureoverview company operation remuneration explained way commission fully disclosed financial plan term client advised fee made ongoing service life association investment new monies upon completion fact finder written financial plan prepared despatched client follow interview 2 3 week later time financial plan discussed great detail includinginvestment riskcommissionsassessment risk profileinvestment selectiontime horizonannual review earlier 57 52 later correspondence mr gurry advised fics date withdrawn investment originally recommended rsjba status information together mr brown original advice set exhibit c 5 original advice investmentdate investedamount shown fund document le chargesshown fund document date withdrawn date value assessedamount realised value value investment realised 28 august 2008 zurich superannuation plan 58 9 july 200120 566 0089 071 62109 637 62portfolio management charge 1 253 84contributioncharge5 481 876 735 714 december 2002 87 881 60139 661 00 59 gain 34 746 00 based initial investment 104 915colonial first state rollover superannuation fund 60 10 august 20018 601 47319 818 921 28application fee 356 855 november 20026 555 566 788 61 loss 1 776 00 based initial investment 8 564colonial first state managed investment fund 62 13 august 200119 833 79closing balance 30 june 200416 254 3616 270 00 63 loss 3 563 00 based initial investment 19 833 00mr brown request asic return bank guarantee 20 000 1 june 2003 23 january 200453 letter dated 1 june 2003 mr brown advised asic principal proper authority holder rsjba retired 4 april 2002 said advice given financial transaction since date enclosed licence cancellation also asked asic return bank guarantee 20 000 longer required 64 54 asic advised mr brown needed apply revocation licence order complete form 703 lodge licence attached december 2003 repeated request return guarantee response dated 23 january 2004 asic advised revoked rjsba licence also advised step would need take regarding discharge security course mr gurry complaint fics december 2003 24 june 200455 december 2003 24 june 2004 various correspondence mr brown fics centred mr brown refusal pay panel fee fics amounting 3 000 related tomr brown goodwill offer 3000 settle matter basis cost proceeding tribunal hearing 3000 hearing may conducted 10 month 65 mr gurry rejected offer 66 view mr brown repeated refusal pay panel fee said mr gurry could undertake legal process achieve claim addressed mr gurry concern detail 67 occurred letter dated 15 february 2004 mr brown repeated refusal exchange correspondence fics 1 march 2004 29 june 2004 68 step taken mr brown obtain discharge security 8 april 200456 26 july 2004 asic received letter mr brown enclosing copy notice published herald sun 8 april 2004 69 notice stated rjsba applied discharge security ceased trading licence revoked person claim security required lodge particular asic within three month publication notice 57 letter dated day asic asked mr brown make statement best knowledge person likely claim company name pecuniary loss due thefailure company name agent employee carry business licence adequately properly 70 58 unable find record mr brown made statement time although later 71 security continues held asic pending outcome mr gurry claim cancellation rjsba membership fics59 15 august 2004 mr brown wrote fics enclosing copy asic order revoking rjsba licence asking cancel membership 72 20 october 2004 fics wrote mr brown advising formally terminated rjsba membership effect 13 october 2004 73 fics resolution mr gurry complaint60 determination dated 28 february 2005 fics set background mr gurry complaint mr brown position issue raised complaint 61 heading outcome reason fics began stating mr gurry sought compensation member rsjba loss allegedly sustained result poor financial planning advice 74 stated order complainant succeed must establish balance probability member act accordance duty care owed result suffered financial loss 75 62 fics set definition professional negligence extract fromfinancial service law 76 said financial service licensee must bring task competence usual among person practising financial service licensee fics said financial adviser must provide client appropriate recommendation relation investment order meet duty care adviser must take consideration client need circumstance risk profile time frame investment providing advice financial adviser making recommendation complainant investment required reasonable basis making recommendation complainant adviser would reasonable basis making recommendation complainant complied section 851 2 corporation law 77 63 fics went set two rule financial planning association rule conduct preparing oral written recommendation client member shall conduct access research financial strategy product may appropriate achieve client identified need objective 78 preparing oral written recommendation client member shall develop suitable financial strategy plan client based relevant information collected analysed 79 64 fics found rjsba properly disclosed fee mr gurry provided service fee fee would levied regardless particular investment made mr gurry behalf regard mr gurry complaint regarding poor financial planning advice fics wrote panel satisfied dispute largely result complainant dissatisfaction performance investment panel cannot award compensation loss unless misrepresentation non disclosure poor advice nevertheless member hindered complaint inability produce fact find evidence complainant risk profile established significant two different assessment complainant profile namely moderately aggressive prudent two different recommended investment complainant accepts prudent investor compensated loss sustained result placed investment basis moderately aggressive fact originally sought 50 loss sustained result investment panel note complainant opportunity member representative alter risk profile assessment asset allocation prior implementation plan however argument provided fact find make assessment may difficulty adequately panel satisfied member must take responsibility loss light fact conflicting risk assessment evidence provided made member argues complainant crystallized loss redeeming fund early however law clear client loses confidence adviser poor service advice unreasonable take flight safety mitigate loss 80 65 setting mr brown calculation mr gurry would made profit retained investment mr gurry assessment loss incurred fics said panel reaching figure compensate complainant consider fair reasonable circumstance weighing figure panel directs member pay complainant sum 8 000 together interest rate 5 compound per annum 30 august 2001 date payment basis shared responsibility complainant loss 81 mr brown complaint fics66 letter dated 26 april 2005 mr brown complained fics regarded decision unreasonable unfair unacceptable 82 set reason reaching conclusion referring matter cost complainant lack procedural fairness omission basis amount compensation assessed lack timeliness lack appeal right 67 fics replied 11 may 2005 concluded letter askingmr brown comply ruling within seven day 83 compliance action taken behalf fics68 27 july 2005 solicitor acting behalf fics wrote tomr brown said rjsba member fics time mr gurry made complaint bound fics rule clause 38 rule stated member agreed abide decision fics could take action including legal action enforce decision 84 mr brown solicitor responded 8 august 2005 advising rjsba terminated membership 13 october 2004 85 mr brown statement claim rjsba likely69 21 april 2006 mr brown wrote rjsba behalf asic referring regulator earlier letter dated 29 june 2005 best knowledge person likely claim richard st john brown associate pty ltd pecuniary loss due failure richard st john brown associate pty ltd agent employee carry business licence adequately properly 86 mr gurry claim asic70 letter dated 12 may 2006 addressed asic mr gurry stated wished make claim amounting 10 086 security deposit referred fics decision award compensation mr brown refusal comply decision mr brown paid amount awarded fics 30 may 2006 would amounted 10 086 mr gurry attached copy fics decision letter 87 letter dated 8 june 2006 mr gurry made clear amount claimed would 10 127 mr brown pay by30 june 2006 88 asic decision71 report decision asic delegate canvassed event detail summary found mr brown acted adequately properly advising mr gurry particularly explanation appeared chosen conflicting risk profile view person acting adequately properly would completed kept fact find whatever name document information gathered client referred risk profile revealed making investment recommendation explaining apparent departure way lay client could understand would reviewed time time ensure still met client need receipt complaint licence cancelled recommend client seek advice also note duty adviser acting properly adequately include ensuring safe keeping sic client record least 7 year document question fact find certainly kept safely length time apart mr brown assertion certainty ever completed claimant claimed properly done would another possible explanation mr brown came recommend investment two different risk category without explanation like fics believe mr brown must take responsibility claimant express dissatisfaction profile given moderately assertive first lot investment although quite explicitly invited mr brown advice recommendation invited raise disagreement occasion second uncontested lot investment raise difference profiling even though later state prudent correct assessment tolerance however view appropriate acknowledge mr brown paid financial adviser claimant lay person someone seeking use mr brown expertise arranging financial affair support chosen life style surprising claimant relied heavily advice given mr brown time realising unorthodox change investment risk profile also understandable lost faith mr brown absence persuasive argument longer relied advice stay investment recommended longer term advised note claimant claim compensation relation second lot investment heading prudent satisfied claimant pecuniary loss resulted failure rsjba carry business licence adequately properly sufficient justify application 8 000 together interest rate 5 compound per annum 30 august 2001 date payment 20 000 security compensate claimant 89 legislative frameworkthe law relating rsjba licence prior 15 july 200172 rsjba first licensed dealer thesecurities industry victoria codewith effect 15 march 1989 73 law came operation 1 january 1991 90 chapter 7 law entitled security broad term part 7 3 7 7 inclusive chapter prescribed responsibility gave investment advice operated managed investment section 780 part 7 3 chapter provided person must carry security business unless holding dealer licence exempt dealer exempt dealer person dealer investment adviser carry security business except one capacity circumstance set 68 2 law corporation act 74 expression security business meaning given bys 93 91 section 93 1 provides security business business dealing security subject qualification relevant case term security meant debenture stock bond issued proposed issued government b share debenture body c interest managed investment scheme ca part 7 3 7 6 inclusive interest would interest managed investment scheme paragraph h definition ofmanaged investment schemein section 9 unit share e option contract within meaning chapter 7 include future contract excluded security 92 effect 93 1 ca interest regulated superannuation fund approved deposit fund superannuation trust public sector superannuation scheme within meaning thesuperannuation industry supervision act 1993are security purpose ofs 93 1 75 section 784 provided situation body corporate rsjba applied licence section 784 5 provided licence granted previous law jurisdiction corresponding 784 deemed granted law licensee maintained security condition licence security effect lodged 786 2 law asc taken party security 93 76 section 786 force provided licence subject term condition prescribed subject 837 94 condition restriction asc imposed granting licence time licence force among condition could prescribed condition requiring holder dealer licence lodge maintain commission security approved commission amount exceeding prescribed amount time time determined commission relation holder licence 95 77 section 786 9 provided security lodged commission pursuant condition licence subject accordance paragraph 2 security may applied commission circumstance purpose manner prescribed 78 regulation 7 3 03 thecorporations regulation 1990 regulation provided prescribed amount security 20 000 regulation went provide purpose subsection 786 9 corporation law security lodged commission relation licence may applied commission accordance regulation compensate person suffered pecuniary loss due failure licensee agent employee licensee carry business licence adequately properly 96 asc might apply security way whether licensee convicted offence relation failure carry business licence adequately properly 97 79 regulation 7 3 04 6 set way pecuniary loss person may claim calculated calculated using formula loss cost entitlementswhere loss mean pecuniary loss suffered person cost mean total amount commission think reasonable cost b disbursement reasonable amount incidental making proving claim entitlement mean amount value money benefit paid payable person person commission reduction pecuniary loss 80 total claim admitted commission exceed amount security must paid full 98 proportion claim paid proportion proportion amount security bear total admitted claim 99 81 asc could apply security compensate person unless person lodged written claim later commission notice published accordance subregulation 4 advertised claim compensation paid security specified date le 3 month publication notice date b notice published paragraph c apply 6 month person becomes aware suffered pecuniary loss c later date commission allows particular case 100 notice reference made r 7 3 04 3 must published daily newspaper general circulation jurisdiction 101 e state australian capital territory 102 asc required notice also published newspaper circulating generally state territory holder licence agent employee carried business licence 103 82 regulation 7 3 06 discharge return release security far relevant provided commission may discharge whole part security maintained condition licence b return security whole part c release whole part surety provided surety person cease hold licence e f g written application made former licence holder 104 law relating rsjba licence 15 july 2001 thecorporations act 200183 thecorporations act 2001 corporation act came take place law came operation 15 july 2001 105 text chapter 7 mirrored chapter 7 law law relating rsjba licence after11 march 2002 thecorporations act 2001and amended thefinancial service reform act 200184 thecorporations actwas amended thefinancial service reform act 2001 fsr act effect 11 march 2002 106 among amendment repeal chapter 7 replacement new chapter 7 107 new chapter 7 established new system regulation financial service licence part system licence required order carry certain activity among australian financial service licence afsl person required hold carrying financial service business within jurisdiction 85 part 7 6 chapter 7 thecorporations actprovided afsls holder afsl financial service licensee purpose chapter 7 108 subject financial service disclosure obligation provided inpart 7 7and provision relating conduct connected financial product financial service found inpart 7 8of chapter 7 transitional provision relating amendment effected thefinancial service reform act 2001 corporation act part 10 286 contemplation amendment made chapter 7 thecorporations act thefinancial service reform consequential provision act 2001 fsrcp act amended thecorporations actby insertingpart 10 2 109 part came operation 27 september 2001 110 set transitional provision relating fsr act deal first set division 1 part 10 2 87 item 1 1430 provided holder dealer licence immediately commencement fsr act regulated principal regulated activity licence force immediately commencement fsr act authorised carry 111 effect ofs 1431of thecorporations actwas regulated principal required hold afsl period starting date commencement fsr act two year date commencement fsr act 11 march 2002 ending first four event specified s 1431 1 occurred period commencement date 11 march 2002 occurrence first event known transition period 112 relevance case event specified 1431 period two year commencing commencement fsr act ending 11 march 2004 88 handful exception part 7 6 7 7and7 8of thecorporations actas amended fsr act apply regulated principal regulated activity transition period 113 except situation relevant case transition period regulated principal relevant old legislation continues apply despite repeal relation regulated principal regulated activity b person expressed apply relation matter related regulated principal regulated activity 114 89 section 1437 applies one provision division 1 ofpart 10 2of thecorporations act 115 importantly case provision specified in 1437 1 b provision applies provision thecorporations actthat continue apply ofss 1432 1 said 1436 3 act 116 section 1437 2 give asic power exempt certain person class person specified provision applies also empowers declare provision apply modified varied specified declaration 117 asic power modify subject provision 1437 3 one asic may make declaration providing continued application provision referred paragraph 1 b even end period 2 year starting fsr commencement e 11 march 2002 90 section 1444 come within division 2 ofpart 10 2of thecorporations act section 1444 1 provides regulation may deal matter transitional saving application nature relating relevant amendment transition application old legislation application new legislation regulation made purpose may make provision necessary take account fact division 1 different provision amendedcorporations actstart applying different provision old legislation stop applying relation different people thing matter different time 91 matter transitional saving application nature described in 1444 8 include limited five matter specified in 1444 8 thecorporations act first two matter arose existed old legislation dealt new legislation b significance purpose new legislation matter arose existed old legislation 92 section 1444 2 provided inconsistency regulation made purpose section provision division 1 ofpart 10 2or certain regulation made provision division general regulation made unders 1444had effect extent inconsistent provision division 1 regulation made division transitional provision relating amendment effected thefinancial service reform act 2001 regulation part 10 293 part 10 2of regulation inserted thecorporations amendment regulation 2002 2 effect 11 march 2002 118 deal matter transitional saving application nature relating amendment made fsr act transition application old legislation new legislation 119 94 division 38 concerned security bond regulation 10 2 199 entirety division 38 applies relation financial service licensee became regulated principal mentioned item 1 2 table section 1430 act 11 march 2002 120 remaining provision provide 2 regulation 7 3 04 7 3 06 7 3 07 old corporation regulation associated provision continue apply relation regulated principal regulated activity 3 regulation mentioned subregulation 2 continue apply end transition period regulated principal consideration general principles95 section reason separate issue must consider reaching decision matter relation one two reach conclusion part merely explore principle relevant later reason may appear somewhat order set principle relating extension time near end section done merit application play part consideration application extension time earlier paragraph relevant consideration identifying applicable law96 regulated activity mr gurry referred occurred 2001 amendment thecorporations actby fsr act time part 7 3 particularly 786 thecorporations actprovided rsjba required lodge security asc made condition licence asc make condition meant 2001 event occurred 11 march 2002 thecorporations actwas amended rr 7 3 03 7 3 07 regulation regulated amount security disposition 97 face application rr 7 3 03 7 3 07 amendment resulting fsr act appear limited life dealer licence rather structure regulation suggests limited application event rather time frame mean structure suggests security intended provide compensation certain event purpose lodging security made clear byr 7 3 04 1 event bear relationship duration dealer licence determined event must lead person suffering pecuniary loss due failure licensee agent employee licensee carry business licence adequately properly event bear relationship duration licence pecuniary loss sort described may apparent quite time event circumstance said failure carry business licence adequately properly 98 view security provision set rr 7 3 03 7 3 07 regulation intended life beyond term dealer licence reinforced regulation provision made example immediate return security expiration dealer licence contrary r 7 3 06 1 provided asc may return certain circumstance including person cease hold licence exercise power discharge security three month must passed since notice published asking particular claim claim made asc obliged consider determine 99 amendment thecorporations actby fsr act effect 11 march 2002 rsjba became regulated person virtue item 1 ofs 1430of thecorporations actas amended activity rsjba dealer licence authorised carry regulated activity within meaning provision given rsjba retained dealer licence seek granted licence unders 913bof thecorporations actand subject exemption unders 911a 2 period dealer licence revoked 23 january 2004 subject change effected fsr act period two year beginning 11 march 2002 effect 1431 1 instead provision thecorporations actin unamended form continued apply rsjba regulated principal regulated activity particular rr 7 3 03 7 3 07 regulation continued regulate amount security disposition 100 view rationale security structure provision regulating use return licensee rr 7 3 03 7 3 07 must read continuing regulate security mr brown retired 4 april 2002 rsjba ceased give advice conduct financial transaction must read continuing regulate security rsjba dealer licence formerly revoked order made 23 january 2004 taking effect day later 121 b may asic apply security r 7 3 04 101 security provision rr 7 3 03 7 3 07 intended protect seeking advice licensed thecorporations actto give advice protected loss may incur accepting advice given protection extends pecuniary loss due licensee failure licensee agent employee carry business licenceadequately properly 102 mean particular care must taken identify pecuniary loss due example pecuniary loss suffered claimant due action due licensee failure r 7 3 04 1 permit security applied relation read regulation allowing explore notion contributory negligence claimant notion developed common law defeated plaintiff cause action negligence 122 claim negligence instead bear hallmark claim breach fiduciary duty even financial adviser subject fiduciary duty return contributory negligence place claim breach fiduciary duty mchugh gummow hayne callinan jj said inpilmer v duke group ltd liquidation 123 contributory negligence focus conduct plaintiff fiduciary law upon obligation defendant act interest plaintiff moreover question apportionment respect contributory negligence arises legislation common law astley astley v austrust ltd indicates particular apportionment legislation south australia question touch contractual liability reasoning inastleywould suggest fortiori legislation touch fiduciary relationship 124 103 applying reasoning apportionment respect contributory negligence would need found legislation found term instead notion responsibility built r 7 3 04 security applied compensate pecuniary loss due licensee failure specified b 1 mean carry business licence 104 order understand expression carry business licence mean gone back basis licence dealer licence granted law later thecorporations actbefore amendment fsr act heart provision proposition person could carry business dealing security referred 93 1 unless holding dealer licence exempt dealer meant carrying business subject s 18 19 20 21 law thecorporations actbut section dealt aspect expression expression 105 number authority considered meaning expression carry business considered similar context inre osborne australian security investment commission 125 adopt analysis reason need repeat mention case ofhyde v sullivan others 126 case considered meant expression carry business context 3 themoney lender infant loan act 1941 nsw court appeal new south wale said speaking generally phrase carry business mean conduct form commercial enterprise systematically regularly view profit implicit idea feature continuity system 127 106 meaning seems equally applicable interpretation expression used thecorporations actand r 7 3 04 person said carry business licence person must engaged conduct feature continuity regularity undertaken view person profiting context r 7 3 04 enough simply identify business carried specific reference made business carried business licence 107 ordinary meaning word include 7 category classification 9 according 128 15 authorised warranted attested 129 regard context r 7 3 04 seems expression carry business licence refers activity two quality first taken together amount carrying business second quality activity person undertakes authority licence case activity amount business dealing security provided activity sort make difference whether activity carried conformity licence term condition specifies carried conformity whether carried adequately properly otherwise would room compensation sort provided r 7 3 04 pecuniary loss due failure carry business adequately properly 108 business dealing security part wider business must remembered r 7 03 04 1 permit security applied compensate person suffered pecuniary loss due failure licensee carry business licence adequately properly cannot applied compensate pecuniary loss due licensee failure carry part business carrying licence b 2 pecuniary loss 109 pecuniary loss person may compensated first must due licensee failure described return meant due later reason 130 110 brings meaning pecuniary loss mindful meaning attributed word expression affected context andthat lord halsbury said inmersey dock harbour board v henderson bros 131 certainly satisfactory mode arriving meaning compound phrase sever several part construe separate meaning part severed 132 even found severance useful starting point case order understand possible range meaning attributed word variety context better help understand meaning parliament intended adopt context 111 note meaning word ordinarily used recorded dictionary would lead conclusion pecuniary loss thing amount lost 133 relating concerning consisting money 134 112 word pecuniary also defined legal context mean monetary relating money financial consisting money valued money 135 qualifying word consideration interpreted meaning consideration money money worth 136 word pecuniary also used expression pecuniary interest certain circumstance local government councillor required disclose pecuniary interest contract proposed contract inbrown v director public prosecution 137 donovan j observed object requirement prevent councillor voting matter might affect pocket therefore narrow interpretation attributed expression pecuniary interest meaning limited pecuniary advantage pecuniary interest existed circumstance councillor existing liability possible future liability would maintained contract consideration pocket might affected interest nature pecuniary 113 given scheme security provision provide compensation certain circumstance suffer loss due specified failure licensee carry business dealing security seems expression pecuniary loss must interpreted way regard type loss may flow failure cash lost pecuniary loss take form loss money investment made example share loss shareholder suffers say downturn market usually expressed term loss money shareholder sell share loss rather expressed term loss value worth share loss value taken account assessing overall value shareholder asset 114 shareholder might also consider incurred loss one example loss might interest capital used purchase share might otherwise attracted deposited bank another might increase value share different company might achieved capital used purchase rather share purchased bank interest might quantifiable given period may increase value share different company company identifiable shareholder might also consider loss amount spent acquiring share amount would include cost brokerage stamp duty 115 share sold amount received le price paid loss unrealised monetary form loss loss value loss may become greater time may even disappear converted profit thing influenced myriad matter including state share market soundness business model adopted company fiscal viability strength market product service perception trading market thing 116 le true investment fall within description security purpose thecorporations act even security traded market debenture example form loan company government agency repayable stated time attracting stated rate interest whether continues worth capital advanced company government agency depends company agency sufficient fund meet fall due general earning credit history value asset diminished capital returned debenture holder may arguable value debenture reduced sold another debenture holder could expect receive full amount secured debenture company go liquidation debenture due satisfied debenture due debenture holder may suffer pecuniary loss liquidation completed person know much anything paid creditor including debenture holder said person potentially incurred pecuniary loss whether potential becomes actuality depends matter extend beyond fact debenture securing repayment amount money 117 given security intended compensate person pecuniary loss due failure licensee agent employee carry business licence adequately properly seems pecuniary loss must actual pecuniary loss mean pecuniary loss crystallised realised sale disposal security cannot simply loss value represented term amount money particular time course holding security loss may foreshadow pecuniary loss pecuniary loss realised nature security market place come may traded mean loss apparent value security may possibly converted actual pecuniary loss necessarily b 3 meant failure carry business licence adequately properly 118 one ordinary meaning word failure used inr 7 3 04 non something failure turn seems sense used regulation regulation referring non omission licensee employee agent carry business licence adequately properly 119 meant word adequately properly problematic part consideration r 7 3 04 lawby burchett j incapricorn financial planner pty ltd v australian security investment commission anor 138 fact case set headnote report capricorn financial planner held unrestricted dealer licence provided financial planning investment advisory service mr white representative capricorn granted proper authority sec 806 b law became representative capricorn mr white advised investor make investment proved unsuccessful investment company associated mr white investment capricorn list approved product capricorn unaware transaction received commission financial benefit transaction came capricorn attention terminated mr white proper authority investor sought redress commission commission compensated investor capricorn security deposit lodged pursuant sec 786 9 law capricorn asked aat review commission decision aat affirmed commission decision capricorn appealed claiming aat erred law capricorn argued business carried mr white capricorn business mere connection mr white capricorn sufficient constitute agent 139 120 three base upon burchett j found tribunal correctly affirmed commission decision compensate investor capricorn security deposit first stated follows 9 shown literal construction regulation 7 3 04 1 would make applicable case present straightforward basis embrace situation loss due failure agent licensee carry business licence adequately properly divert customer making appropriate investment making ill advised one outside range investment approved capricorn disregard conflict interest plainly involved failure 140 121 example fail carry business adequately properly purport sketch parameter mean conduct business adequately properly approach accord traditional approach taken court resolving civil case context administrative decision making encompasses merit review decision find easier attempt identify parameter way identifying parameter done possible ass whether conduct complained fall inside outside parameter individual case influence process identifying parameter may reaffirm parameter may raise circumstance previously contemplated lead refinement redrawn 122 even allowing refinement way thinking way enhances possibility achieving consistency decision making across variety circumstance consistency may ultimately achieved case case approach focus purely behaviour question consistency however achieved retrospect analysis reconciliation individual case rather consistency achieved considering circumstance light known framework consistency remain unknown analysis reconciliation occurs consequently remains unknown might seek ensure carry business dealing security adequately properly consequence one would seem consistent compensation scheme provided security inherent requirement lodge maintain security asic two purpose one compensate behaviour meet standard fact penalty behaviour notion encourage behaviour meet standard 123 ordinary meaning word adequate adequately adverbial form 1enough sufficient 2 usuallyadequate something competent particular job task etc 3only satisfactory 141 speaking context entirely different tribunal considered meaning adequately inre jade australian postal commission 142 considering whether article adequately wrapped approach adopted equally applicable case approach whether content article adequately wrapped cannot determined abstract adequacy wrapping relative concept must measured environment package conveyed packaging may perfectly adequate one environment may quite inadequate another 143 124 ordinary meaning properly apart colloquial use 1suitably appropriately correctly 2with strict accuracy 3fully thoroughly completely 144 considered various authority various context choose one injames v commonwealth bank australia 145 gummow j considered whether receiver entitled indemnified certain debt appointing indemnified liability section 324 1 company new south wale code debt properly incurred course said receivership service rendered good purchased property hired leased used occupied debt properly incurred course said receivership additional mentioned section 324 1 146 125 gummow j said accept submission counsel abn determination whether debt properly incurred receiver course receivership involves examination duty imposed upon virtue acceptance office receiver accordingly inquiry whether debt properly incurred within meaning cl 1 abn indemnity necessarily restricted examination isolation receiver trade creditor transaction created liability receiver seek recoupment contract indemnity secured creditor appointed receiver particular receiver exercising power given appointment obliged meet certain standard conduct referred position general law indicated debt incurred consequence negligence default breach duty improper performance applicant duty receiver debt would attract obligation indemnify applicant debt would properly incurred express term abn indemnity produce different result use term properly incurred particular context assistance way analogy provided rule trustee entitled reimbursement money paid expense properly incurred execution trust phrase properly incurred construed meaning reasonably well honestly incurred beddoe 1893 1 ch 547at 562 inquiry may extend examination general performance trustee duty execute trust reasonable diligence care seerwg management ltd v commissioner corporate affair 1985 vicrp 42 1985 vr 385at 396 147 126 light authority purpose r 7 3 04 seems consideration whether person carried business licence adequately requires consideration whether person done competently consideration whether person done properly go beyond notion adequacy encompass notion appropriateness propriety enough example person give appearance acting adequately observing strict letter law acting dishonestly improperly concept would seem consistent interpretation expression adequately properly adopted burchett j incapricorn financial planner pty ltd v australian security investment commission anorwhen said seems regulation word adequately least embrace meaning competently word properly least embrace compliance law governing duty fiduciary including obligation act way involving conflict interest 148 127 burchett j expand upon mean conduct business competently implicit reference law governing duty fiduciary context properly acknowledgement term may encompass broadly based enquiry seems inquiry whether person carried business adequately properly must begin consideration required licensee followed inquiry regarding behaviour action complained enquiry encompass matter nature business authorised duty imposed upon person statute virtue licensed duty imposed upon person general law virtue conducting business regard must also particular circumstance way person conducted business relation claimant compensation one cannot viewed isolation general view place particular circumstance context context provides benchmark sort assessing particular circumstance 128 part 7 3 7 4 chapter 7 law subsequently thecorporations actare relevant considering licensee general obligation division 1 ofpart 7 3required licensee provide information comply condition licence relationship licensee representative regulated division 2 thatpart 7 3 part 7 5regulates financial record dealer must maintain auditor must appoint andpart 7 7prescribes register must maintain record interest security part 7 6regulates dealer obligation relation client money scrip 129 section 826 fall within division 5 indication behaviour parliament considered unacceptable licensee found 826 section provides subject licensee given opportunity hearing accordance 837 asc might revoke licence certain circumstance 149 circumstance concern false statement omission application licence 150 one related contravention security law 151 another contravention condition licence 152 others relate personal quality person licensee held natural person body corporate officer case natural person asc asked whether reason believe licensee good fame character 153 licensee body corporate question asc asked included educational qualification experience officer licensee inadequate regard officer duty connection holding licence 154 also relevant whether licence held director secretary executive officer body corporate suspended revoked banning order made person 830 155 130 care must taken analysing whether behaviour quality sort may lead person disqualified licensee reflect question whether licensee carried business licence adequately properly licensee educational qualification experience may inadequate lead automatically conclusion nothing business done adequately properly focus shift manner business carried personal qualification quality licensee 131 emphasised last two circumstance specified 826 1 circumstance asc might revoke licence j commission reason believe licensee performed efficiently honestly fairly duty holder dealer licence k commission reason believe licensee perform duty efficiently honestly fairly parliament distinguished qualification experience one hand manner licensee performed duty future seems make distinction focusing carrying business r 7 3 04 without mention qualification experience 132 part 7 4regulates conduct security business dealer dealer person carry security business 156 person rsjba position section 842 prescribes circumstance dealer must issue contract note section 843 regulates circumstance dealer may deal account 844 requires dealer give priority client order section 845 regulates dealing employee licence holder division 2 ofpart 7 4is concerned short selling security 133 division 3 ofpart 7 4is relevant case concerned recommendation made security adviser person called client may reasonably expected rely 157 security adviser includes dealer 158 section 849 requires security adviser give particular commission fee benefit advantage making recommendation client 159 defence alleged breach 849 set 850 1 2 hinge security adviser aware fee benefit advantage making recommendation case 850 1 could reasonably expected known making recommendation 134 section 851 concerned security adviser reasonable basis security recommendation section 851 1 provide person contravenes guilty offence 160 provide security adviser make security recommendation person may reasonably expected rely b reasonable basis making recommendation person contravenes section 135 section must also read 851 2 provides purpose subsection 1 security adviser reasonable basis making security recommendation person unless order ascertain recommendation appropriate regard information security adviser person investment objective financial situation particular need security adviser given consideration conducted investigation subject matter recommendation reasonable circumstance b recommendation based consideration investigation 136 deciding whether licensee failed carry business licence adequately properly need regard matter whether arising thecorporations actor general law parameter within assessment must made difficult say licensee acted competently acted otherwise accordance provision thecorporations actthat apply licence even licensee acted without intention deceive client every intention act honourably b 3 1 scope obligation 851 obligation havea reasonable basis making recommendationto person may reasonably expected rely upon it137 determination whether licensee carried business licence adequately properly assessment whether reasonable basis making recommendation client determined context seek advice licensee dealing security regard must nature security concerned market place traded affect value well particular recommendation made circumstance formulated must also information client given investment objective financial situation particular need licensee consideration investigation subject matter recommendation subject matter recommendation main topic theme 161 entirety matter lead licensee make recommendation 138 asic issued policy statement p 122 3 march 1997 relation 851 entitled investment advisory service conduct business rule 849 851 issued asic 3 march 1997 sps 22 superseded p 167 11 march 2004 operation rsjba made recommendation case known sps 122 form part asic investment advisory service series policy statement provided policy guideline licensee could meet conduct business rule law 162 139 time formulated asc charged various function power expressed conferred upon national scheme law agreement state territory 163 addition given power whatever necessary connection reasonably incidental performance function 164 asc renamed asic theaustralian security commission act 1989was renamed theaustralian security investment commission act 1989 asic act effect 1 july 1998 power remained thecorporations actcame operation function referred in 11were similar recast term expressed conferred corporation legislation e asic act thecorporations act 140 power asic formulated sps 122 guide exercising power cannot said policy formulated ministerial level government suggestion scrutinised parliament despite policy formulated senior level therefore far sps 122 consistent provision thecorporations actand regulation would need sound reason applied case sound reason would approach something close cogent reason would shown ministerial policy policy exposed parliamentary scrutiny followed particular case 165 141 sps 122is detailed document begin referring section dealing record client profile product research purpose meeting licensee obligation 851 read p 122 126 section 851 impose specific obligation security adviser keep record client investment objective financial situation particular need client profile product research carried p 122 7 however according asic interpretation law security adviser cannot satisfy 851 requirement reasonable basis making security recommendation unless adequate product research conducted light client investment objective financial situation particular need adviser need keep record client profile product research conducted used formulate recommendation kept best evidence adviser fact complied 851 obligation p 122 128 similarly asic considers security adviser provides personal security recommendation client keep record client profile contains information accurate date making personal security recommendation record also include product research conducted used formulating recommendation unless client given going advisory service client profile would generally need updated p 122 129 adviser matter best practice record reason certain product considered appropriate particular client information risk investment strategy recommended client p 122 130 record may kept electronically hard copy must accessible asic client request 142 sps 122also set enquiry security adviser make client investment objective financial situation particular need although stated 851 asic believed provision required security adviser either posse adequate information client individual need circumstance make reasonable inquiry obtain information client asic stated p 122 103 level personal information needed client making personal security recommendation kind expected client varies one client another security adviser best placed make assessment adequate personal information client p 122 104 asic considers following information would generally needed making full need analysis retail client see policy statement 121 definition retail client client need objective income capital growth security retirement income liquidity time period client planning b client personal financial circumstance liability potential liability nature asset held retirement benefit expected including partner relevant c client individual investment preference aversion tolerance risk relevant client information employment security family commitment expected retirement age b 3 2 scope obligation 851 obligation reasonable basis making recommendation toa person may reasonably expected rely upon it143 whether person may reasonably expected rely upon recommendation another depends upon matter circumstance recommendation made relationship two person concerned nature recommendation whether one pay recommendation throw away remark made family barbecue may viewed different way remark made course consultation financial adviser person sought paying financial advice possible lay hard fast rule b 3 3 fiduciary obligation play part considering whether failure carry business licence adequately properly 144 rjsba mr brown mr gurry fiduciary relationship nature relationship would one law would impose certain obligation upon rjsba upon mr brown first loyalty explained millett j inbristol west building society v mothew 166 distinguishing obligation fiduciary obligation loyalty principal entitled single minded loyalty fiduciary core liability several facet fiduciary must act good faith must make profit trust must place position duty interest may conflict may act benefit benefit third person without informed consent principal intended exhaustive list sufficient indicate nature fiduciary obligation defining characteristic fiduciary dr finn pointed classic workfiduciary obligation 1977 p 2 subject fiduciary obligation fiduciary subject fiduciary 167 145 whether fiduciary relationship exists determined reference pre ordained test gibbs cj said inhospital product ltd v united state surgical corporation 168 test might seem appropriate determine whether fiduciary relationship existed one purpose might quite inappropriate another purpose decided case various circumstance relied indicating presence fiduciary relationship one circumstance existence relation confidence may abused however actual relation confidence fact one person subjectively trusted another neither necessary conclusive existence fiduciary relationship one hand trustee stand fiduciary relationship beneficiary notwithstanding latter time reposed confidence hand ordinary transaction sale purchase give rise fiduciary relationship simply purchaser trusted vendor latter defrauded another circumstance sometimes suggested indicates existence fiduciary relationship inequality bargaining power clear inequality alone enough create fiduciary relationship every case purpose hand fact arrangement party purely commercial kind dealt arm length equal footing consistently regarded court important decisive indicating fiduciary duty arose 169 146 need formal contract two people well established person may take upon role fiduciary le formal arrangement contract self appointment ultimately fiduciary responsibility imposed accepted one one concerned imposed standard behaviour whether relationship derives retainer le formal arrangement self appointment must examined see duty therby imposed fiduciary scope ambit duty seeboardman v phipps 1967 ac 46 127 170 147 status relationship two people determine whether relationship fiduciary even case solicitor client relationship long accepted status based fiduciary relationship duty derived status case duty derived solicitor undertakes deemed undertaken particular circumstance every aspect solicitor client relationship fiduciary conduct may fall within fiduciary component relationship solicitor client one case may fall within fiduciary component another relationship solicitor client core element confidence influence equity preserve protect nevertheless confidence influence always pervasive require equitable intervention every facet relationship 171 148 inhospital product ltd v united state surgical corporation gibbs cj referred statement made asquith lj inreading v king 172 said fiduciary relationship exists whenever plaintiff entrusts defendant job performed instance negotiation contract behalf benefit relies defendant procure plaintiff best term available 173 honour regarded statement far wide fact duty performed job cannot every case create fiduciary obligation agree statement megarry v c intito v waddell 2 174 imposition statutory duty perform certain function cannot said general rule impose fiduciary obligation true contractual duty arising ordinary commercial contract 175 149 say two may co exist party mason j said inhospital product ltd v united state surgical corporation partly fiduciary exercise power discretion adversely affect interest person duty owed latter mercy former fiduciary come duty exercise power discretion interest person owed thus mere sub contractor fiduciary although work may described loosely work carried interest head contractor sub contractor cannot meaningful sense said exercise power discretion place head contractor position vulnerability contractual fiduciary relationship may co exist 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 176 150 view also found favour gummow j inbreen v williams 177 said mere presence contract exclude co existence concurrent fiduciary duty contract may particular circumstance provide occasion existence deny contractual term precise regulation party may scope creation fiduciary duty 178 151 inaustralian security investment commission v citigroup global market australia pty limited 179 jacobson j considered whether financial adviser fiduciary relationship client recipient advice relying part judgment lehane j inhadid v lenfest communication inc 180 gibbs cj brennan j indaly v sydney stock exchange limited 181 austin j inaequitas v sparad 100 limited formerly australian european finance corporation limited 182 honour said 282 dvisers may often fiduciary obligation 283 fiduciary relationship arises financial adviser client adviser hold expert financial matter undertakes perform financial advisory role client 284 principle usually apply financial adviser corporate adviser owe fiduciary obligation client undertakes act client interest solely interest 285 person may fiduciary relationship aspect relationship others seenew zealand netherlands society oranje incorporated v kuys 1973 2 er 1222at 1225 6 per lord wilberforce see alsonoranda australia v lachlan resource nl 1988 14 nswlr 1 15 17 per bryson j thus bank give customer financial advice course transaction includes advance money client may fiduciary relationship client role adviser bank may expected act interest ensuring security loan undertake fiduciary obligation client creates expectation advise customer interest wisdom investment seecommonwealth bank australia v smith 1991 fca 375 1991 42 fcr 390at 391 per davy sheppard gummow jj 183 152 jacobson j also canvassed authority considering circumstance person absolved fiduciary duty 293 person occupying fiduciary position absolved liability would otherwise breach duty obtaining fully informed consent seecba v smithat 393 per davy sheppard gummow jj 294 precise formula determining whether fully informed consent given question fact circumstance case seemaguire v makaronis 1997 hca 23 1997 188 clr 449at 466 per brennan cj gaudron mchugh gummow jj see alsocba v smithat 393 per davy sheppard gummow jj 295 order exonerated fiduciary must give full frank disclosure material fact seekuysat 1227 per lord wilberforce consent need given expressly may implied circumstance seewoolworths v kelly22 nswlrat 212 per samuel ja 234 per mahoney ja see alsoour lady mount pty limited trustee v magnificat meal movement international inc 1999 33 acsr 163at 128 per muir j 296 sufficiency disclosure may depend sophistication intelligence person disclosure required made seefarah construction pty limited v say dee pty limited 2007 hca 22at 107 per gleeson cj gummow callinan heydon crennan jj 184 b 4 pecuniary loss due failure carry business licence adequately properly 153 expression due expression context used ordinary meaning denote causal link pecuniary loss failure given ordinary meaning could said due mean pecuniary loss caused failure 185 need careful adopting ordinary meaning substituting word due actually used parliament word due may little le precise either attempt constrain substituting word chosen parliament think safer understand word due requiring causal connection pecuniary loss failure carry business licence adequately properly b 5 rsjba reasonable basis making recommendation tomr gurry 154 word reasonable mean 1sensible rational showing reason good judgement 3in accordance reason 4fair moderate extreme excessive reasonable price 5satisfactory equal one might expect 186 licensee reasonable basis recommendation must foundation recommendation reasoned rational appropriate given matter circumstance aspiration client nature available security state market place affecting current ongoing value available security risk attending available security state market factor affecting return security asic obliged apply security person suffers pecuniary loss due licensee failure carry business licence adequately properly 155 786 9 r 7 3 04 provide securitymaybe applied commission emphasis added provision clearly bestowed power upon asc successor asic apply security prescribed circumstance follows use word may used express permission 187 circumstance may also used confer power require power exercised others may denote power exercise power discretionary 156 passage judgment gummow hayne heydon crennan jj inleach v r 188 illustrates different us word context high court consideration wa 19 5 thesentencing crime murder andparole reform act 2003 nt provided supreme court may refuse fix non parole period satisfied level culpability commission offence extreme community interest retribution punishment protection deterrence met offender imprisoned term natural life without possibility release parole 157 honour concluded word may used convey discretion confer power court obliged exercise satisfied matter specified 19 5 189 referred passage effect judgment windeyer j infinance facility pty ltd v federal commissioner taxation 190 honour considered whether commissioner taxation obliged allow rebate satisfied certain condition met non payment dividend explained gleeson cj mchugh j insamad v district court nsw 191 high court infinance facility pty ltd v federal commissioner taxationhad decided context indicated intended commissioner discretionary power defeat right entitlement word may conferred power statutory intention power exercised condition fulfilled 192 158 statutory power conferred word permission gleeson cj mchugh j said question whether mandatory discretionary power discretionary issue may taken account exercise resolved matter statutory interpretation regard language statute context relevant provision general scope object legislation 193 honour cited judgment dixon cj webb fullagar kitto taylor jj inward v williams 194 approval refer one passage honour judgment inwhite v williams one situation conclusion justified duty exercise power authority fall upon officer conferred described lordcairnsin speech case julius v bishop oxford 1880 lr 5 ac 214at 235 lordship spoke certain case said appear decide nothing power deposited public officer purpose used benefit person specifically pointed regard definition supplied legislature condition upon entitled call exercise power ought exercised court require exercised 195 159 principle drawn case require look purpose asic given power apply security regard principle stated mason wilson jj incooper brooke wollongong pty ltd v federal commissioner taxation fundamental object statutory construction every case ascertain legislative intention reference language instrument viewed whole performing task court look operation statute according term legitimate aid construction 196 160 regard may context legislation enacted ascertain mischief parliament intended remedy ascertain legislative intent well settled common law apart reliance upons 15abof theacts interpretation act1901 cth court may regard report law reform body ascertain mischief statute intended cure moreover modern approach statutory interpretation insists context considered first instance merely later stage ambiguity might thought arise b us context widest sense include thing existing state law mischief legitimate mean mentioned one may discern statute intended remedy instance general word statute constrained context numerous particular mchugh ja pointed

Regina v Biggs Matter No 60122_97 [1998] NSWSC 15 (25 February 1998).txt

regina v biggs matter 60122 97 1998 nswsc 15 25 february 1998 last updated 31 march 1998regina v roger mark biggs60122 9725 february 1998wood j smart j sperling jthe supreme court new south wale court criminal appealjudgmentwood j ask justice sperling deliver first judgment sperling j 21 february 1997 applicant pleaded guilty one count armed robbery wounding one count using offensive weapon prevent lawful apprehension one count common law assault kinchington dcj district court relation offence armed robbery wounding honour imposed sentence consisting minimum term nine year penal servitude additional term six year relation second third offence honour sentenced applicant fixed term five year penal servitude fixed term eighteen month imprisonment respectively served concurrently sentence first charge challenge finding made sentencing judge objective fact case honour said 9 pm evening thursday 3 october 1996 kelly gormley working alone great australian ice creamery crawford street queanbeyan closing shop night opened rear security screen door gain access rear passage confronted offender holding length timber hand head offender time face head covered tee shirt without warning immediately commenced hit miss gormley head timber told shut quiet miss gormley tried escape assailant forced ground whereupon offender continued assault grabbed hold ponytail dragged shop vicinity cash register removed 465 cash till thereafter miss gormley forced alley way behind shop pleaded offender hurt rape whereupon offender dragged isolated part laneway continued assault striking head arm body piece wood time second offender victim mr tony bourke arrived scene challenged offender attempted apprehend whereupon offender attacked mr bourke piece wood struck forearm whereupon mr bourke struck offender knocked ground fell upon told stay police arrived struggle ensued offender mr bourke offender broke free attempted decamp area via ice cream shop mr bourke following ice cream shop confronted offender struggle ensued mr bourke punched groin offender effort make escape however despite assault person mr bourke able subdue offender police arrived whereupon handcuffed taken back queanbeyan police station challenge finding sentencing judge injury received respective victim honour said result various assault miss gormley sustained two scalp wound required suturing broken nose fracture hand together bruising face head arm abrasion arm leg mr bourke sustained bruising left forearm well pain discomfort groin area honour briefly summarised applicant criminal history record detail ignoring earlier matter since 1987 applicant seventeen year age applicant sentenced twelve occasion thereabouts act violence person one kind another threatened violence conviction also include conviction armed robbery numerous offence applicant served many gaol sentence offence although longest sentence imposed prior present occasion minimum term twelve month additional term four month mention sentence armed robbery 1990 fact eight month rather one month recorded honour far subjective consideration concerned honour mentioned applicant affected alcohol form drug time offence question applicant left school age nine extremely disadvantageous upbringing young life child young man honour satisfied applicant pleaded guilty earliest available opportunity could accept applicant plea guilty expression remorse contrition case involves abduction force actual physical violence female victim actual injury interrupted applicant intent even harm victim honour said circumstance offence committed indicated criminality involved fell within higher range penalty imposed type offence cannot doubted behalf applicant submitted sentence excessively severe submitted sentencing judge ought given greater weight fact applicant stage denied involvement offence greater recognition accorded applicant dysfunctional upbringing aboriginal background latter respect reliance placed decision wood j infernando 1992 76 crim r 58 support submission sentence severity reserved offence much greater criminality reference made decision court inmerritt 26 february 1996 unreported case total sentence thirteen year apportioned minimum term nine year additional term four year appeal severity sentence leave granted appeal dismissed decision therefore stand single instance exercise sentencing discretion appeal merritt badgery parker j said single sentence right particular offence ever said range sentence sentencing judge every case wide discretion within range even fact individual member court might concluded sentence different total length differently constructed might appropriate reason court intervene question whether error part sentencing judge established error established merely submitting however forcefully consideration might dictated favourable result respect fact ofmerrittare serious present case respect fact present case serious ofmerritt comparison serf confirm said badgery parker j passage quoted error principle apparent honour remark sentence apparent anything said honour honour failed give appropriate weight particular consideration including consideration mentioned counsel applicant however total sentence fifteen year minimum term nine year opinion excessive regard objective subjective feature case referred sentence therefore set aside sentencing applicant court benefit sentencing judge also report professor hayes dated 16 february 1998 said time assessment mr biggs pleasant stocky aboriginal man co operated well assessment mr biggs born lake cargelligo third youngest family four sister three brother family initially lived mission near murray bridge aged 13 moved albury father died 1992 mother alive life lake cargelligo mr biggs attended school lake family moved albury left school end year 8 like school basically dole since leaving school job history juvenile offending start 1983 aged thirteen lived home mother time left school say age fifteen started drinking alcohol would drink ran money alcohol usually drank park drank every day mostly cannot remember happened drank point blackout started sniffing glue aged eight nine continued 11 12 say young fellow started smoking marijuana age 15 smoked however much usually smoked two gram per day say drank smoked marijuana wanted friend part scene say alcohol made aggressive time never fought sober say charge related fighting drunk think maybe 100 charge said boy home age thirteen initially offence car stealing second time boy home 1987 17 assault stealing came gaol 1988 gaol ever since longest time gaol since 1988 four month every time leaf prison go straight back alcohol go live albury lake cargelligo one aunt mother usually grog gaol used heroin gaol since 1994 use heroin outside except last time release outside also us pill mainly rivatrils night offence fight friend stole friend rivatrils day offence consumed alcohol rivatrils marijuana say cannot remember whole day leading offence remember getting shower obtained money mother brother law bought slab carton beer 9 clock morning started drink also began smoke marijuana took three rivatril tablet continued drinking went friend house cousin house drove around went queanbeyan think early evening woke say rivatril tablet left must taken say supposed go meet friend friend said would meet downtown mr biggs went downtown offence happened say cannot recall hitting victim recall hit mr burke mr biggs say since gaol recent time trying get drug alcohol class moved often impossible done drug alcohol course previous occasion time incarceration adult juvenile institution mr biggs say never psychological assessment never individual psychological psychiatric counselling say think need one one counselling go shell group appears report extensive psychological testing carried professor hayes report result test profession hayes conclusion follows summary history young man probably low average level intelligence whose mental ability suffered owing extreme substance abuse whilst custody received little help directed assisting drug alcohol free upon release also need able participate drug alcohol counselling brought remains one prison stable period time also need involvement one one basis psychologist psychiatrist extensive counselling related cause substance abuse approaching release need released rehabilitation program part parole case management plan mr biggs need drawn prison psychological medical substance abuse service notwithstanding mitigating subjective feature case substantial sentence necessary serious objective feature episode give rise sentence would find special circumstance case need extended period supervision parole applicant released propose following order 1 leave appeal granted 2 appeal allowed 3 sentence charge armed robbery set aside 4 lieu thereof applicant sentenced minimum term seven year penal servitude date 3 october 1996 expiring 2 october 2003 together additional term four year penal servitude applicant eligible release parole 3 october 2003 would endorse observation sentencing judge released parole applicant subject supervision guidance new south wale probation service wood j agree smart j also agree wood j order court proposed justice sperling

Board of Trustees of the Rockhampton Grammar School T_A The Rockhampton Grammar School [2020] FWCA 4202 (17 August 2020).txt

board trustee rockhampton grammar school rockhampton grammar school 2020 fwca 4202 17 august 2020 last updated 20 november 2020 2020 fwca 4202fair work commissiondecisionfair work act 2009s 185 application approval single enterprise agreementboard trustee rockhampton grammar school rockhampton grammar school ag2020 1955 rockhampton grammar school enterprise agreement 2020educational servicescommissioner boothbrisbane 17 august 2020application approval rockhampton grammar school enterprise agreement 2020 1 application made unders 185of thefair work act 2009 act board trustee rockhampton grammar school rockhampton grammar school applicant approval therockhampton grammar school enterprise agreement 2020 agreement agreement single enterprise agreement 2 mr paul giles assistant secretary treasurer queensland northern territory branch independent education union australia ieu filed form f18 matter advising ieu support approval agreement commission providing notice unders 183of act want agreement cover 3 mr sam robert director early childhood education care united worker union uwu filed form f18 matter advising uwu support approval agreement commission providing notice unders 183of act want agreement cover 4 mr christopher murray industrial officer australian nursing midwifery federation anmf filed form f18 matter advising anmf support approval agreement commission providing notice unders 183of act want agreement cover 5 correspondence sent applicant bargaining representative 27 july 2020 raising certain concern relation agreement seeking response undertaking applicant applicant filed submission undertaking addressing concern raised 30 july 2020 ieu uwu anmf provided copy response proposed undertaking 6 matter listed ehearing 5 august 2020 interested party wishing heard relation agreement directed contact chamber heard 10 august 2020 party contacted chamber 7 undertaking meet requirement ofs 190 3 act accepted result undertaking term agreement attached decision attachment 8 observe following clause likely inconsistent national employment standard ne clause 9 9 1 l regarding parental leave clause 9 1 9 1 3 9 1 4 e 9 2 2 9 2 3 9 2 7 9 2 8 iii relation annual leave clause 4 6 relation notice termination clause 4 9 relation redundancy pay clause 9 12 1 relation family domestic violence leave 9 however noting ne precedence undertaking undertaking provided applicant satisfied beneficial entitlement ne prevail inconsistency agreement ne 10 course matter several typographical error identified agreement lodged exercise discretion unders 586of act correct typographical error 11 subject matter raised paragraph 2 10 satisfied requirement ofss 186 187and188of act relevant application approval met 12 accordance withs 201 2 note agreement cover ieu uwu anmf 13 agreement approved accordance withs 54of act clause 1 3 1 agreement operate 7 day date approval agreement nominal expiry date 31 december 2023 commissionerprinted authority commonwealth government printer ae508165pr719746 attachment

R v Wells [2016] NSWDC 169 (17 August 2016).txt

r v well 2016 nswdc 169 17 august 2016 last updated 24 november 2016district courtnew south walescase name r v wellsmedium neutral citation 2016 nswdc 169hearing date 15 august 2016date order 17 august 2016decision date 17 august 2016jurisdiction criminalbefore berman sc dcjdecision accused found guilty 2 back charge 166 certificatecatchwords criminal law back charge acquittal trial negligent driving occasioning death give way making u turn emergency vehicle negligence causation entering overtaking lane freeway car approaching failing wait approaching car passlegislation cited rural fire actcriminal procedure actaustralian road rulescases cited cameron v r unrep nswcca 27 sep 1994dpp v yeo anor 2008 nswcsc 953royall v queen 1991 hca 27 1990 172 clr 378 thabo meli v r 1954 ukpc 1 1954 1 wlr 228category principal judgmentparties crownian jeffrey wellsrepresentation counsel r cooley crownm higgins accusedsolicitors director public prosecutionscrown solicitor office accusedfile number 2013 44288judgmentintroductionin may year presided jury trial accused ian jeffrey well charged 2 offence first offence dangerous driving occasioning death mr katina mihailidis second offence dangerous driving occasioning grievous bodily harm mr peter mihailidis accused acquitted count consent mr well pursuant 166 criminal procedure act dealing 2 back charge offence negligent driving occasioning death mr mihailidis offence making u turn without giving way vehicle back charge relating grievous bodily harm suffered mr mihailidis circumstance apparently arises inappropriate advice given laid charge evidence consider determining guilt otherwise mr well 2 back charge consists evidence given trial oral documentary supplemented tender proceeding document reference made earlier trial also statement agreed fact tendered substantially reduced issue resolve factswhat follows non controversial outline event led present proceeding accused volunteer rural fire fighter kariong brigade rural fire service rf one evening home paged together rf member attended incident mount white weighbridge station called f3 freeway concentrated orange juice spilt accused travelled scene spillage rf vehicle designated kariong 1 vehicle category 1 fire tanker carried substantial quantity water thus heavy 13 tonne slow accelerate completion task concerning orange juice spill accused another rf personnel weighbridge paul barwick asked attend motor vehicle accident closer sydney also f3 freeway accused mr barwick arrived incident performed various duty around 10 21pm accused mr barwick asked drive kariong 1 back weighbridge station incident regarding spillage concentrated orange juice ongoing evidence disclose precisely duty return weighbridge would get back weighbridge station accused driving kariong 1 needed turn tanker around could head north back weighbridge station mount white thus drove along f3 southbound reached u turn bay 10 decided would perform u turn gap median divide sign u turn bay said u turn supplementary sign positioned underneath said police rta nrma emergency vehicle excepted traffic heading south accused able begin u turn moving left south bound carriageway turning steering wheel right activated red blue flashing light top tanker applied full right lock steering wheel second gear north bound traffic gone past u turn bay toyota corolla driven mr peter mihailidis wife katina mihailidis passenger seat approaching u turn bay south thus heading north visible accused would taken 11 second pas initially lane 3 mr well intention also turn lane 3 lane nearest centre roadway corolla driven mr mihailidis 350 metre south u turn bay flashed car high beam headlight time corolla moved lane 3 lane 2 centre northbound lane mr barwick accused noticed interpreted indication driver approaching vehicle aware presence rf vehicle effect indicating driver vehicle could complete u turn driver approaching vehicle would give way mentioned rf tanker heavy slow accelerate remained second gear went u turn bay walking pace accused told police interview conducted early following morning easier keep momentum going rather stop go back first gear tanker moved lane 3 northbound carriageway corolla also moved back lane 3 accused saw manoeuvre rear view mirror steered tanker left intending get way corolla partly entered lane 2 time corolla collided rear left hand side fire tanker tanker moving slowly time collision speed order 10 15kph collision accused drove tanker break lane corolla left stationary lane 3 electrical system damaged extent none light operated completely unlit mr mihailidis whilst perhaps injured collision alive opened passenger door released seat belt process getting car struck third vehicle mazda driven m nicole burton also travelling northbound driving mazda lane 3 time light low beam approached scene looked towards flashing light rf tanker left see stationary corolla late avoid colliding collision corolla mazda caused mr mihailidis death trialthere 3 issue dispute jury trial insofar count concerning death mr mihailidis concerned crown prove beyond reasonable doubt impact rf fire tanker toyota corolla driven mr mihailidis caused death mr mihailidis jury directed crown would proved proved beyond reasonable doubt impact rf tanker corolla caused impact mazda corolla next issue jury resolve trial whether time impact rf tanker corolla accused driving rf tanker manner dangerous another person person third issue arose 2 earlier issue resolved manner adverse accused whether accused proved balance probability mr mihailidis death way attributable manner drove rf tanker course jury resolved issue unknown basis guilty verdict returned unknown task determine whether crown proved beyond reasonable doubt guilt accused 2 back charge referred start judgment accused driving emergency vehicle firstly deal issue mr higgins say arose case charge question whether accused driving emergency vehicle issue arises directly regard charge relating u turn mr higgins say indirectly relation charge negligent driving causing death concernsrule 306of theaustralian road rule rule providesa provision rule apply driver emergency vehicle circumstance driver taking reasonable care ii reasonable rule apply b vehicle motor vehicle moving vehicle displaying blue red flashing light sounding alarm emergency vehicle defined dictionary meaning vehicle driven person emergency worker b driving vehicle course duty emergency worker definition emergency worker member rural fire brigade accused would emergency worker providing transport course ofan emergency emphasis added word emergency defined road rule mr higgins suggested word interpreted way word used rural fire act crown accepted appropriate way interpreting word emergency relevant part mr higgins submission quote definition impress upon rural fire act 1997 nsw rural fire act provides best guide legislature intended meaning word emergency theaustralian road rule relevantly applies member rural fire brigade establishes set function rural fire brigade relevantly section 4 rural fire act 18 october 2012 note pick definition thestate emergency rescue management act 1989 nsw emergency mean emergency due actual imminent occurrence fire flood storm earthquake explosion terrorist act accident epidemic warlike action endangers threatens toendanger safety health person animal state b destroys damage threatens destroy ordamage property state emergency requires significant co ordinated response emphasis added mr higgins also relied natural ordinary meaning word emergency noted macquarie dictionary defined emergency unforeseen occurrence sudden urgent occasion action evidence actually happening mount white checking station time accused performed u turn terribly clear evidence 2 000 litre concentrated orange juice spilt classified chemical spill crew attending wear breathing apparatus asked infer evidence threat damage property whilst may prepared infer fact time kariong 1 first attendance weighbridge station dearth evidence whether threat continued time accused performed u turn communication log admitted trial speak need accused return mount white checking station accused interview police conducted early hour following morning spoke return mount white checking station finish tidying pick crew left accused told police consumed pizza weighbridge left bought owner truck spilt concentrated orange juice accused would known situation time left weighbridge reason doubt description reason heading back mount white checking station time later number point flow evidence referred firstly tends suggest whatever threat property abated importantly urgency accused mr barwick getting back weighbridge assist tidying picking crew view need urgency macquarie dictionary suggests urgent occasion action missing evidence accused responding time u turn turn reached verdict 2 count without needing decide whether accused driver emergency vehicle necessary would concluded beyond reasonable doubt definition emergency relied mr higgins defines sort emergency amount emergency even accident threatens damage property mr higgins say opening word definition emergency mean emergency due make clear overarching requirement understood emergency proper analysis definition limit type emergency covered find threat property require urgent response emergency evidence pointed urgent need accused return weighbridge accused knew situation weighbridge left told police interview return tidy pick crew repeat necessary would found beyond reasonable doubt accused driving emergency vehicle performed u turn implicit conclusion rejection argument raised mr higgins paragraph 50 55 written submission asked form conclusion particular charge chosen prosecution crown effectively conceding accused driving emergency vehicle simply say legal principle would require even allow conclusion mr higgins suggested would abuse process allow crown argue accused driving emergency vehicle completelyaccept category abuse process closed never said apply situation raised mr higgins view negligent driving occasioning deathlegal test negligencei turn allegation negligent driving occasioning death important emphasise significant degree negligence need proved beyond reasonable doubt crown authority require crown prove negligence high standard criminal punishment appropriate negligent conduct penalised criminal law must evidence marked departure standard care reasonable person would exercised merit criminal punishment many relevant issue examined determining whether accused manner driving reach standard need proved likelihood risk others must least real obvious serious also relevant consider whether conduct said crown negligent shown breach duty care recognised general law created statute course thing saying crown need demonstrate road rule breached driving negligent although seen fact find accused breach least roadrule 38 test criminal negligence context well expressed johnson j indpp v yeo anor 2008 nswcsc 953 follows27 negligent driving established proved beyond reasonable doubt accused person drove motor vehicle manner involving departure standard care user road expected ordinary prudent driver circumstance distinction may drawn driving negligently driving manner dangerous public driving kind justifies conviction manslaughter essentially distinction degree negligence appropriate offence distinction degree departure standard care user road expected ordinary prudent driver circumstance r v buttsworth 672 29 question essentially whether driver exercising degree care ordinary prudent driver would exercise circumstance including circumstance set in 42 3 simpson v peat 1952 2 qb 24 respective casesthe crown case accused failed allow mr mihailidis vehicle pas wait roadway clear entering northbound carriageway take reasonable care expected ordinary prudent driver case accused road rule entitled drive way entered lane 3 clear traffic cause collision mr mihailidis decision move back lane 3 decision perhaps contributed mr mihailidis obstructive sleep apnoea vision problem findingsmr higgins make series submission support general submission accused breached relevant road rule subject question whether accused breached road rule subject second charge purpose judgment accept mr higgins submission regard take account mr mihailidis obstructive sleep apnoea though contributed collision mere speculation inconsistent appears deliberate response flashing light changing lane mr mihailidis circumstance perceived problem mr mihailidis vision may contributed collision particular decision move corolla lane 2 north lane 3 north rf tanker began entering northbound carriageway ability correctly perceive path rf tanker taking may effected cataract one eye intra ocular lens however find legally entitled drive recently tested met vision standard required hold driver licence explain later even driver perfect vision could easily unaware accused intending perform u turn case driver must drive way take account ability driver road different level vision different reaction time driver startle easily others mr well entitled assume mr mihailidis vision allowed legally drive entitled assume accept consistent statement agreed fact mr mihailidis moved vehicle lane 3 lane 2 back lane 3 first manoeuvre coinciding flashing light prepared proceed basis accused entitled assume mr mihailidis would see rf tanker emergency vehicle give way road rule required satisfied even given finding made accused favour drove negligently crown case accused negligent failing stop slow vehicle enter northbound carriageway mr mihailidis vehicle gone past satisfied beyond reasonable doubt negligent accused entered northbound carriageway mr mihailidis vehicle approaching many mr higgins submission referred action mr mihailidis deciding whether accused guilty negligent driving occasioning death focus accused manner driving albeit one matter taken account assessing course accused response action another road user case driver car collided rf tanker mr mihailidis accused negligenti find accused driving criminally negligent following reason acknowledging course considerable overlap matter refer accused foreseen northbound vehicle approaching would travelling speed limit 110kph reasonable prudent driver would foresee accused must also understood would reasonable prudent driver turned vehicle entered lane 3 northbound going enormous speed differential mr mihailidis approaching corolla rf tanker even tanker accelerated fast able collision occurred tanker 10 15kph 8 metre past u turn bay accused also foreseen driver always act anticipated even driver perfect vision startled unexpected event regard accused well knew night time lighting area matter would also foreseen reasonable prudent driver accused believed mr barwick mr mihailidis flashed light moved lane 2 effect saying acknowledge presence roadway safe enter northbound carriageway reasonable prudent driver accused would foreseen entirely possible mr mihailidis flashed light warning moved lane 2 time avoid danger could see approaching right accused foreseen one entirely logical response vehicle entering driver right apparently taking path right left front steer right pas behind apparent path vehicle least accused foreseen mr mihailidis might unaware intended turn lane 3 foreseen reasonable prudent driver would risk oncoming driver would wrongly perceive rf tanker going cross path would steer vehicle right attempt pas behind apparent path vehicle even accepting accused driving emergency vehicle responding event threatened damage property back mount white vehicle checking station accused foreseen driver approaching vehicle would known mr well intention driver approaching vehicle would see emergency vehicle right driver would know whether emergency vehicle responding incident located position rf tanker time perhaps somewhere 8 metre gap 2 carriageway responding emergency left hand side northbound carriageway performing u turn vehicle travel north along carriageway mr well knew intended namely enter lane 3 travel north reasonable prudent driver would foresee intention obvious driver vehicle approaching 110 kph mr well knew planning foreseen approaching driver would share knowledge even assuming driver approaching vehicle could work emergency vehicle process performing u turn mr well foreseen reasonable prudent driver would given mr mihailidis car vehicle approaching would unreasonable driver car approaching emergency vehicle expect driver emergency vehicle stop wait 11 second would take allow approaching car pas entering northbound carriageway driver approaching car may startled occur mr higgins relies evidence trial unlikelihood driver steering towards emerging hazard evidence trial study researcher reviewed driver response actual collision found steering towards emerging hazard rare however circumstance behind real world collision must vary enormously collision concerned arose particular circumstance relevant foreseeability mr mihailidis would swerved right immediately collision study reference made evidence trial establishes little circumstance particular collision like many statistic say much population say much le individual event particular circumstance evening especially mr mihailidis vehicle approaching could forgiven thinking emergency vehicle could see ahead would enter carriageway gone past sudden unexpected emergence threat appeared entering right moving towards left could led making decision respond emerging threat veering behind apparent path emergency vehicle especially case found foreseeable flashing light coinciding move lane 3 lane 2 warning alert driver rf tanker car approaching high speed rather invitation proceed accused interpreted foreseeable accused driver sole vehicle approaching might responded rf tanker entering northbound carriageway unexpected way including exactly mr mihailidis foreseeable reasonable prudent driver collision could occur result accused manner driving particular driver approaching vehicle changing lane 2 lane 3 avoid perceived risk rf tanker would move driver right across path travel lane 2 accused negligent failed take obvious decision driver heavy vehicle intends enter carriageway high speed expressway vehicle approaching wait 11 second necessary allow vehicle go past entering carriageway failing entering carriageway corolla approaching accused manner driving serious departure standard care reasonable driver would exercised merit criminal punishment reasonable prudent driver would entered lane 3 northbound carriageway f3 speed limit 110 kph night slow moving vehicle could see car approaching lane 2 created risk real obvious serious accused exercise degree care ordinary prudent driver would exercise circumstance outlined mr well want lose momentum change first gear mr well want stop negligent accused fail thus satisfied beyond reasonable doubt accused driving negligently causationthat raise another issue case arises explained mr mihailidis die collision corolla driven husband vehicle driven accused later collision mazda driven m burton stationary corolla killed although collision m burton mazda stationary corolla immediate cause death mean law understands another cause namely accused negligent driving concept causation criminal law require application esoteric legal principle required question whether one circumstance caused another looked common sense way enough say accused negligent driving m mihailidis would died mr higgins correctly submitted causal connection manner u turn conducted impact 2 must sufficiently substantial attribute criminal responsibility mr well death mr mihailidis impact 2 mr higgins focused driving m burton attempt demonstrate client negligent driving cause death mr mihailidis mr higgins referred number feature manner m burton drove evening outlined beginning judgment particular note amongst matter travelling slightly speed limit head light high beam distracted flashing light rf tanker took eye roadway time going mention paid much regard submission mr higgins m burton breached road rule travelling lane 3 overtaking vehicle true travelling lane 2 would collided corolla merely matter coincidence corolla ended find relevant connection appears m burton breach road rule travelling lane 3 issue whether matter law accused manner driving caused collision mazda corolla direct cause death mr mihailidis well remember position accused moved rf tanker breakdown lane corolla dark colour unlit stationary roadway overtaking lane driver approaching scene would naturally look towards tanker flashing red blue beacon situation almost inevitable approaching vehicle would collide corolla mr higgins point m burton mazda first vehicle approach stationary corolla driver able avoid colliding much true important understand situation approaching driver presented perhaps best evidence situation presented oncoming driver found dash cam video mr schiemer video tendered trial mr schiemer gave oral evidence video graphically demonstrates limited time approaching driver see stationary dark unlit corolla avoid colliding fully accept course poor quality video recording replicate human eye see fortunately video recording contains sound track mr schiemer heard loudly expressing expletive gave evidence moment saw corolla matter moment mr schiemer saw stationary corolla went past evidence apparent already said collision approaching vehicle stationary corolla almost inevitable common sense way group men throw cliff unconscious man later dy exposure caused death thabo meli v r 1954 ukpc 1 1954 1 wlr 228 common sense way man cause live electric cable fall ground cause death boy later electrocuted coming contact live cable cameron v r unrepnswcca 27 sep 1994 course causation considered common sense way death woman jump death escape attack partner caused partner royall v queen 1991 hca 27 1990 172 clr 378 looking fact case common sense way crown satisfied beyond reasonable doubt cause mr mihailidis death manner accused drove rf tanker night thus find accused guilty negligent driving occasioning death failure give way another vehicle making u turnthat brings question whether accused breached roadrule 38 prosecution proved beyond reasonable doubt accused driver making u turn give way mr mihailidis approaching vehicle mr higgins relied exemption rule 306 earlier made reference noted necessary would found accused driving emergency vehicle exemption would apply case noted exemption applies among circumstance driver taking reasonable care concluded accused manner driving negligent follows taking reasonable care course submission mr higgins conceded could contemplate situation driver found driving negligently could found taking reasonable care reason find exemption rule 306 apply mr well give way mr mihailidis approaching vehicle mr well making u turn thus find guilty breaching roadrule 38 conclusionthe accused guilty 2 back charge section 166 certificate amendments24 november 2016 cover sheet spelling correction

United Voice [2013] FWCA 7401 (26 September 2013).txt

united voice 2013 fwca 7401 26 september 2013 2013 fwca 7401fair work commissiondecisionfair work act 2009s 217 enterprise agreementunited voice ag2013 8649 james family trust juillerat family trust trading cuddle bug kindergarten pre prep united voice enterprise agreement 2013educational servicesvice president catanzaritisydney 26 september 2013application variation james family trust juillerat family trust trading cuddle bug kindergarten pre prep united voice enterprise agreement 2013 1 application made vary thethe james family trust juillerat family trust trading cuddle bug kindergarten pre prep united voice enterprise agreement 2013 agreement remove ambiguity uncertainty agreement single enterprise agreement application made united voice pursuant tos 217of thefair work act 2009 act 2 united voice covered agreement initially applicant approve agreement first instance employer james family trust juillerat family trust trading cuddle bug kindergarten pre prep united voice enterprise agreement 2013 supported application way written submission commission 3 application came result unintentional omission three page agreement agreement initially submitted approval resulted incomplete version agreement approved 4 satisfied requirement ofs 217of act met satisfied variation proposed correct relevant ambiguity uncertainty manner consistent understanding party held time agreement made 5 section 217of act empowers fair work commission specify operative date variation part decision circumstance appropriate variation operates date effect existing agreement 6 accordingly agreement hereby varied include missing page variation operate 16 august 2013 full version agreement varied isattachedto decision vice presidentprinted authority commonwealth government printer price code c ae403006pr542433

Associated Beauty Aids Pty Ltd v Federal Commissioner of Taxation [1965] HCA 20; (1965) 113 CLR 662 (30 April 1965).txt

associated beauty aid pty ltd v federal commissioner taxation 1965 hca 20 1965 113 clr 662 30 april 1965 high court australiaassociated beauty aid pty ltd v federal commissioner taxation 1965 hca 20 1965 113 clr 662income tax cth high court australiabarwick c j 1 windeyer 2 owen 3 jj catchwordsincome tax cth private company company capable controlled one person person seven number control dependent upon conversion share conversion operative date delivery notice income tax social service contribution assessment act 1936 1955 cth 105 1 f hearingsydney 1965 march 31 april 30 30 4 1965case stateddecisionapril 30 following written judgment delivered barwick c j appellant taxpayer proprietary company incorporated meaning 6 income tax social service contribution assessment act 1936 1955 cth act p664 2 30th june 1954 article company contained following 1a nominal capital company 10 000 pound dividedinto 6 628 ordinary share 1 pound 2 400 cumulativeredeemable preference share 1 pound 972 b cumulative preference share 1 pound iv said new b cumulative preference sharesshall entitle holder receive notice general meetingsand attend vote thereat v holder said new b cumulativepreference share may notice writing left thecompany office together certificate share thereinreferred elect convert new b cumulativepreference share specified notice ordinary shareswhereupon share shall date delivery suchnotice become ordinary share shall rank respectspari passu ordinary share company shallcease preference priority abovementionedand new certificate relating converted share shallbe issued holder thereof free charge 54 show hand every member present entitledto vote shall one vote upon poll holder b cumulative preference share shall one vote forevery 25 b cumulative preference share held themand holder ordinary share shall one vote forevery 5 ordinary share held rightof holder cumulative redeemable preferenceshares come operation show hand everyholder share shall one vote memberof company common member andon poll shall one vote cumulativeredeemable preference share held article remained unaltered 30th june 1955 30th june 1954 30th june 1955 twenty twoshareholders held 25 ordinary share company day year 972 b cumulativepreference share held follows ernest stephen vadasz 501 sharesmaria vadasz 471 sharesthe commissioner assessed appellant tax respectof year footing year privatecompany within meaning div 7 act theappellant objected assessment made commissionerin respect company tax also assessment madeby commissioner div 7 objection disallowed appellant requestedthat treated appeal referred court upon hearing justice court appealstaken together request party stated acase opinion full court question asked case whether fact stated appellant 30thjune 1954 company answered description inpar f 105 1 said act companywhich capable controlled meanswhatever one person person sevenin number therefore private company within themeaning 103 said act b whether fact stated appellant 30thjune 1955 company answered description inpar f 105 1 said act companywhich capable controlled meanswhatever one person person thanseven number therefore private companywithin meaning 103 said act p666 3 upon fact stated case basis upon commissioner claim entitled ass appellant private company within meaning div 7 respect year appellant fulfilled description par f 105 1 say 30th june year appellant company capable controlled mean whatever person person seven number p666 4 neither holder b cumulative preference share given 30th june either year notice election pursuant art 1a v convert b cumulative preference share ordinary share thus far actual shareholding concerned seven person could carried resolution general meeting 30th june either year opposition shareholder court suggested person person capable controlling company day mean casting vote general meeting p666 5 said notice election given pursuant art 1a v time 30th june would operative commencement day alternatively time day left company office given either view operation holder b cumulative preference share could voted ordinary shareholder general meeting held time day submission correct result conversion b cumulative preference share held either mr mr vadasz ordinary share day would two day could controlled company company would therefore day company capable controlled one person within meaning 105 1 f p666 6 matter thus turn wholly upon construction article giving b cumulative preference shareholder right convert share ordinary share critical word may notice left company office elect convert share specified notice ordinary share whereupon share specified shall date delivery notice become ordinary share p666 7 appellant submits analogy operation computation time word excludes whole day change nature share take place therefore holder b cumulative preference share capable becoming ordinary shareholder 30th june except notice given commencement day p667 8 examination whole memorandum article company yield assistance construction par v art 1a little doubt however company seeking achieve paragraph necessarily artificial definition private company div 7 decision court upon definition available see w p keighery pty ltd v federal commissioner taxation 1957 hca 2 1957 100 clr 66 federal commissioner taxation v sidney williams holding ltd 1957 hca 1 1957 100 clr 95 purpose par v inserted article amendment late financial year 1954 apparently ensure notice election delivered 30th june would effect conversion day b cumulative preference share ordinary share p667 9 though purpose amendment article plain enough remains question proper meaning word actually used doubt generally time computed day day excluded computation true computation date convenient abbreviation full expression day date paragraph question dealing computation time dealing consequence event taken place notice election left company office word question deal point time designated effect p667 10 three possible point time change relevant right shareholder could take place first moment time notice left company office second commencement day left third end day beginning next description precisely point time immaterial present purpose chosen p667 11 dealing actual situation would case notice given dealing supposition notice left office company time presumably business hour company office open 30th june question whether supposition company could controlled carrying resolution general meeting held time day quite clear notice operated moment delivery b cumulative preference shareholder could vote ordinary shareholder general meeting held notice given could said therefore giving notice time 30th june would confer capacity control general meeting held time day could said giving would enable control general meeting held subsequent delivery could said general meeting held time day could controlled holder converted share purpose div 7 think enough p668 12 general rule consequence use preposition whether computation period time connexion general computing period time date period commence end day date universally operating rule effect see example illustration given note page 1068 report r v stevens agnew 1804 engr 251 1804 5 east 244 102 er 1063 wilkinson v gaston 1846 9 qb 137 115 er 1227 change take place stated time general rule computation period time direct significance though illustrative separating effect preposition opinion usually inclusive rather exclusive separatist quality unquestionably may either thus preposition derives relevant quality context found includes purpose document found evidently designed effect p668 13 lord esher said north ex parte hasluck 1895 2 qb 264 general rule exists computation time time mentioned contract rational mode computation regard purpose computation made 1895 2 qb p 269 generally case commencement term lease expressed commence date commences end day date though may otherwise date commencement term expressed p668 14 case seems impossible construe article notice election operative actual time given impractical consequence construction quite obvious kind contemplated business affair company thus paragraph article ought read providing operation notice election earliest moment day left company office p669 15 also great practical difficulty paragraph construed giving operation notice election moment delivery time ordinary course would difficult establish certainty also possibility notice given general meeting would produce somewhat strange consequence intended make notice operative moment delivery would sufficient said whereupon share shall become etc though course mean conclusive significant clause extent contrast time delivery time operation adding whereupon word date delivery etc p669 16 opinion practical construction paragraph give preposition separatist quality treat dividing time change quality share day delivery notice election notice election opinion operates end day date left company office accordingly circumstance existed company capable controlled one person person le seven 30th june either year question p669 17 question asked case answered b p669 windeyer j prefer express view general effect saying consequence act law operate day done incline view nothing contrary appears meant result act operative first moment day act done act retroactive effect take effect instanter day spoken law take cognizance part day case seems context circumstance show meant consequence delivery notice commence last moment day date delivery saying first moment day following prowse v mcintyre 1961 111 clr 264 therefore agree question answered negative p670 owen j case stated kitto j pursuant 198 income tax social service contribution assessment act relating assessment tax year ending 30th june 1954 30th june 1955 respectively question arises whether 30th june year last day year income taxpayer company capable controlled mean whatsoever one person person seven number within meaning 105 1 f act fact show general meeting company 30th june year concerned one shareholder group seven shareholder could shareholding stood voted shareholder two shareholder however held 972 b cumulative preference share total number issued share class company article provided holder said b cumulative preference share may notice writing left company office together certificate share therein referred elect convert share specified notice ordinary share whereupon share specified shall date delivery notice become ordinary share p670 2 ordinary share company carried greater voting right b cumulative preference share two person held preference share converted holding ordinary share could voted shareholder fact conversion preference share took place p670 3 commissioner contended 30th june year question two holder b cumulative preference share exercised election convert share ordinary share would virtue article set become ordinary shareholder beginning day able control general meeting held day whether giving notice article refers true construction article would produce result commissioner contention correct federal commissioner taxation v sidney williams holding ltd 1957 hca 1 1957 100 clr 95 p671 4 meaning given word article whereupon share specified shall date delivery notice become ordinary share three possible interpretation one intended conversion become effective instant delivery notice company office another matter hour day notice left office conversion would take effect beginning day third conversion would take effect first moment day following leaving notice company office word whereupon may first sight appear support first interpretation consideration seem significance read meaning thing done word date may mean date would include day delivery notice may mean immediately day delivery thus excluding day delivery usually case period fixed particular day act however case whole think article read meaning conversion become effective first moment day following notice writing left company office general rule law disregard fraction day reason also word date delivery delivery accept suggested interpretation conversion would take effect moment notice left company office adopt view intended conversion become effective first instant day notice left company office could produce difficult problem case hypothetical one necessary consider company general meeting held day notice left company office example general meeting took place morning day shareholder exercised voting right conferred share held later day notice left company office would effect resolution passed meeting already held p671 5 consideration point think conclusion intention conversion take effect day delivery notice sense immediately conclusion day delivery p672 6 would therefore answer question submitted negative p672 orderquestions asked stated case answered follows whether fact stated appellant on30th june 1954 company answered thedescription par f 105 1 said actas company capable beingcontrolled mean whatever one person orby person seven number wastherefore private company within meaning ofs 103 said act answer b whether fact stated appellant on30th june 1955 company answered thedescription par f 105 1 said actas company capable beingcontrolled mean whatever one personor person seven number andwas therefore private company within meaningof 103 said act answer respondent pay cost stated case

N97_15490 [1998] RRTA 336 (22 January 1998).txt

n97 15490 1998 rrta 336 22 january 1998 refugee review tribunaldecision reason decisionrrt reference n97 15490country reference indonesiatribunal member roque c raymundodate decision 22 january 1998place sydneydecision tribunal affirms decision grant protection visa catchword well founded fear backgroundthe applicant citizen indonesia arrived australia 1996 23 january 1997 lodged application protection visa department immigration multicultural affair themigration act 1958 act 26 march 1997 delegate minister immigration multicultural affair refused grant protection visa 30 april 1997 applicant sought review decision issue arises case validity application review tribunal jurisdiction review delegate decision legislationa criterion protection visa time decision minister review tribunal satisfied applicant person australia protection obligation 1951 convention relating status refugee convention amended 1967 protocol relating status refugee protocol s 5 1 and36 2 act australia party convention protocol protection obligation people refugee defined refugee conventionarticle 1a 2 convention defines refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return definition contains four key element first applicant must outside country second applicant must fear persecution every threat harm interference person right convention reason constitutes persecuted mason cj referred persecution requiring serious punishment penalty significant detriment disadvantage seechan yee kin v miea 1989 hca 62 1989 169 clr 379at 388 harm threat harm part course selective harassment person whether individually member group subjected systematic harassment amount persecution done convention reason appropriate case may include single act oppression serious violation human right measure disregard human dignity persecution implies element motivation part persecute infliction harm people persecuted something perceived attributed persecutor third reason persecution must found singling one convention reason race religion nationality membership particular social group political opinion phrase reason serf identify motivation infliction persecution fourth applicant fear persecution convention reason must well founded fear add objective requirement requirement applicant must fact hold fear person well founded fear persecution convention genuine fear founded upon real chance persecution convention stipulated reason person well founded fear persecution even though possibility persecution occurring well 50 per cent real chance one remote insubstantial far fetched possibility finally applicant must unable unwilling fear avail protection country object convention provide refuge lost de jure de facto protection government unwilling return country nationality follows whenever protection country nationality available ground based well founded fear refusing person concerned need international protection refugee whether applicant satisfies convention definition assessed upon fact exist decision made requires consideration matter relation reasonably foreseeable future principle established high court inchan yee kin v miea 1989 hca 62 1989 169 clr 379 applicant anor v miea anor 1997 142 alr 331 354 andmiea v guo anor 1997 144 alr 567 575 6 full federal court inram v miea anor 1995 fca 1333 1995 57 fcr 565at 568 claim evidenceon 17 november 1997 tribunal wrote applicant advising considered paper relating application unable make favourable decision information alone applicant invited give oral evidence tribunal applicant advised contact tribunal within specified period hearing would take place decision may made evidence available tribunal letter sent applicant residential address accordance regulation response received circumstance satisfied tribunal discharged obligation provide applicant opportunity give oral evidence effectively declined opportunity matter therefore determined evidence tribunal evidence comprises department tribunal file relating application applicant born 1970s jakarta muslim listed one address indonesia gave information period stayed studying mid 1981 late 1991 jakarta business involved machine deleted unders431 migration act 1958 late 1987 gave indication business gave detail regarding family applicant advised friend go australia seek protection friend city australia applicant claim friend sought military authority jakarta suspected supporting pro democracy leader m megawati sukarnoputri mr budiman sujatmiko leader partai rakyat demokratik jail late 1996 celebration haripahlawan heroic day applicant several friend including friend another friend posting pamphlet poster wall electric pole jakarta pamphlet contained strong criticism abri indonesian armed force applicant friend almost got caught police police able confiscate motorbike incident never returned home since arriving sydney applicant received letter secretly sent jakarta letter inform plainclothes police hang parent friend home apparently seeking information whereabouts according information heard people recently arrived jakarta military authority still arresting suspected supporter sukarnoputri b sujatmiko mr muchtar pakpahan leader independent trade union serikat buruh segatera indonesia sbsi indonesian prosperous worker union mr pakpahan jail jakarta charged military court subversion ordinary people arrested anti government activity never brought trial detained detention intimidated tortured released sign confession release became crippled life either physically mentally intellectually inhumane treatment detention applicant indicated application form left legally difficulty obtaining passport departed indonesia sukarno hatta airport handwritten statement accompanying application review applicant claimed used different name address get passport rest statement difficult understand owing perhaps applicant inadequate facility english language appears saying family know travelled australia also spoke certain leader wanting meet one appears australia finding reasonsas applicant availed opportunity attend oral hearing tribunal information contained written material make determination mere fact person claim fear persecution particular reason establish either genuineness asserted fear well founded reason claimed remains applicant satisfy tribunal statutory element made miea v guo anor 1997 144 alr 567 596 although concept onus proof appropriate administrative inquiry decision making yao jing li v mima unreported federal court foster j 24 april 1997 25 relevant fact individual case supplied applicant much detail necessary enable examiner establish relevant fact decision maker required make applicant case prasad v miea 1985 fca 47 1985 6 fcr 155at 169 70 luu anor v renevier 1989 fca 518 1989 91 alr 39at 45 tribunal required accept uncritically allegation madeon evidence appears basis applicant fear single incident late 1996 day claimed several friend posting pamphlet poster wall electric pole jakarta almost caught police motorbike confiscated claimed since incident friend never returned home apart gave detail however claim alone satisfied well founded fear persecution within meaning convention applicant claim supporter either pdi prd claim suspected supporting leader basis late 1996 incident evidence show whether act posting pamphlet poster relation previous ongoing political involvement either pdi prd reason satisfied claim suspected supporting either pdi prd leader truthful simply claim prepared accept applicant claim posted pamphlet poster late 1996 day motorbike confiscated pamphlet poster critical military prepared accept applicant fear reason political opinion however accept applicant inference claim would persecuted return find implausible account single incident would subjected persecution return reasonably foreseeable future moreover clear account whether identified authority claimed almost got caught clear whether seen close range identified claim motorbike confiscated however claim owned one motorbike could traced whereabouts tracked without detail claim went hiding implying pursued amount unsupported assertion regarding letter claim secretly sent jakarta give credence whatsoever applicant provide copy one letter also offered explanation given applicant put notice tribunal unable make favourable decision information provided information support claim despite ample opportunity given tribunal opportunity explore aspect claim number relevant question therefore left unanswered follows satisfied evidence applicant well founded fear persecution within meaning convention conclusionhaving considered evidence whole tribunal satisfied applicant person australia protection obligation refugee convention amended refugee protocol therefore applicant satisfy criterion set in 36 2 act protection visa decisionthe tribunal affirms decision grant protection visa

10 ESPLANADE PTY LTD v CITY OF PORT ADELAIDE ENFIELD [2017] SAERDC 38 (14 September 2017).txt

10 esplanade pty ltd v city port adelaide enfield 2017 saerdc 38 14 september 2017 last updated 19 september 2017environment resource development court south australiadisclaimer 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 10 esplanade pty ltd v city port adelaide enfield 2017 saerdc 38judgment commissioner rumsby14 september 2017environment planning environmental planning development controlappeal council refusal two storey residential flat building 4 dwelling basement car parking method calculating average dwelling site area considered whether proposal meet medium density objective land relevance earlier lapsed development approval considered overshadow visual impact building height siting mass considered whether adequate provision made storage private common open space car parking numerous failing point development land term building length side rear setback mass also give rise unreasonable overshadowing appeal dismissed council refusal upheld development act 1993 sa 22 9 referred city port adelaide enfield v moseley 2008 sasc 88 tru energy renewable development pty ltd v regional council goyder or 2014 saerdc 48 ag building development pty ltd v city holdfast bay tanti 2009 sasc 11 considered 10 esplanade pty ltd v city port adelaide enfield 2017 saerdc 38the court delivered following judgment appeal development applicant 10 esplanade pty ltd decision city port adelaide enfield refuse application construct two storey residential flat building comprising four dwelling together basement carpark 10 esplanade semaphore south appellant relied expert town planning evidence mr king consultant town planner whilst respondent council adduced expert town planning evidence mr rogic planning development officer council court undertook view subject land locality presence party prior hearing subject landthe subject land front esplanade semaphore south 150m north termination bower road mr king described subject land follows subject land located 10 esplanade semaphore south land particularly described allotment 30 filed plan 2435 area named semaphore south hundred port adelaide volume 5205 folio 461 allotment free easement schedule endorsement land rectangular shape dimension 17 metre wide front rear boundary 59 54 metre deep northern boundary 59 55 metre deep southern boundary total overall area approximately 1 012 35m2 land rise moderately front rear according survey plan ahd point identified area near rear boundary range 6 16 6 29ahd comparison area adjacent front boundary identified 5 79 5 82ahd part along raised formal grassed area site level level situated road reserve indicate slight cross fall south north direction land presently accommodates detached dwelling feature triple fronted step back style façade clad thinly sawn basket range stone sits small dark brown coloured brick banding roof dwelling hipped styling clad tile small cream brick fence retains grassed area sits similar level dwelling approximately 600mm 700mm footpath level vehicular access presently provided sic esplanade via single width crossover number shed contained within rear yard car parking dwelling situated yard area localityboth town planning witness prepared locality matter mr rogic locality generally rectangular shape angled western eastern boundary following road pattern extends far south bower road beyond arthur street north includes dwelling fronting side boord street east west locality includes strip coastal reserve including avenue norfolk island pine lining esplanade public car parking area playground also nearby kiosk mr king locality extends similar distance north south west within coastal reserve confined east include property immediately abutting subject land helpfully mr king attached statement 1 analysis plan land parcel size identifies various allotment size range dwelling site area throughout subject policy area semaphore south plan highlight amongst thing allotment dwelling site area le 300m2minimum 2 whilst little turn difference way planning witness defined locality prefer locality boundary depicted mr rogic includes streetscape potentially impacted neighbouring site upon mr king locality based also capture somewhat wider area giving greater physical built character dwelling density context consider proposal acknowledged two planning witness residential part locality essentially made two part property esplanade behind without direct coastal frontage property fronting esplanade enjoy attractive westerly outlook across coastal reserve coastal dune water beyond part residential locality attracted contemporary redevelopment evident elsewhere locality however little consistency architectural style construction era housing fronting esplanade within locality 11 building fronting esplanade bower road arthur street four building constructed past 20 year two storey balance street frontage comprises housing predominantly post war construction 1950s 1960s four building two storey include second storey roof addition dwelling primarily detached semi detached dwelling except post war residential flat building bower road corner character balance locality principally fronting boord street also somewhat varied however generally devoid contemporary two storey detached semi detached dwelling area removed coastal frontage le evidence recent redevelopment higher representation older style residential flat building primarily 1950s 1960s construction often density greater desired 300m2average dwelling site area also number compact allotment corner cut hammerhead style land division generally associated single storey dwelling proposalit proposed demolish existing dwelling land various outbuilding construct two storey residential flat building comprising four dwelling together basement parking area eight vehicle also store basement ceiling level corresponds closely prevailing ground line proposed front building line 750mm driveway crossover level esplanade finished ground floor level building street frontage raised 50mm 350mm natural ground two ground level dwelling termed apartment 01 apartment 02 proposal plan 3 mirror image floor layout comprising three bedroom kitchen dining one open living area front opening onto street fronting terrace second living area covered terrace located rear ground floor dwelling building floor level rear including also master bedroom set 900mm primary building floor level private yard space apartment 1 2 rear also correspondingly cut 1 05m retained land boundary second ground building level comprises two three bedroom dwelling similar mirror image building floor plate southern dwelling apartment 04 irregular side setback 4 3m apartment 3 regular floor plate consistent main wall setback 2 07m two upper level dwelling termed apartment 03 apartment 04 provided living area fronting esplanade opening onto covered terrace balcony apartment 03 also second living room located centrally floor plate lift lobby area dwelling provided second outdoor living area screened courtyard area retractable overhead awning located kitchen dining living room personal access dwelling via stair landing either side building resident also provided direct access basement carpark lift lobby floor addition eight separately accessed vehicle parking space basement level storage room wall mounted storage compartment seven car space enclosed bin storage area also personal lift providing access upper floor level intercom video feed link dwelling provided basement carpark entry allowing remote opening carpark roller door required provision made common 48 5m2 garden space alongside carpark driveway abutting esplanade also within front setback area two outdoor showering facility located pedestrian path abutting side boundary mr king produced following summary table dwelling apartment floor area key numeric feature proposal 4 fig 18 summary proposed apartment area parkingapartment 1apartment 2apartment 3apartment 4floor area207 8m2207 8m2199 9m2199 9m2bedrooms3333terrace balcony pos35m235m243 8m243 8m2ground pos81m293 20m2n acar parking spaces2222he summarised proposed building level site work follows 5 ground floor ffl 6 25 set ffl 5 35 rear building excavated back site assist lessen visual shadow impact retaining wall range height generally increase toward rear line design height range 460mm 1 05m northern boundary 0 33mm 1 05m southern boundary 1 1m 1 14m eastern boundary 1 8m high colorbond fencing proposed along side rear boundary term building setback proposed residential flat building setback 9 5m esplanade front edge terrace 3m largely glassed front facade residential floor level ground side setback main wall 2 07m northern side 2 43m southern side except projecting master bedroom wall setback 970mm 1 33m northern southern boundary respectively upper level stair terrace screen wall see also intrude predominant side setback predominant northern side setback upper level 2 07m 2 43m 4 3m southern side boundary screen wall extend ground level 1 7m upper floor level distance 13m across upper floor level entry terrace dwelling screen wall located 900mm northern side boundary 1 17m southern side boundary minimum building setback rear boundary 6 88m form four projecting wing wall upper level bedroom window inset 730mm rear setback 7 61m main building façade development planthe subject land residential zone particularly lefevre peninsula west policy area 58 pa 58 city port adelaide enfield development plan depicted zone policy area map pade 16 development plan edition relevant assessment matter city port adelaide enfield development plan consolidated 21 april 2016 nature proposed development requires consent merit assessment category 3 matter consider pertinent development plan policy matter general sectioncoastal areasobjective 7principles development control 1 20design appearanceobjectives 1 3principles development control 1 3 4 5 7 9 12 16 19 20energy efficiencyobjective 1principle development control 2landscaping fence wallsobjective 1principle development control 1orderly sustainable developmentobjective 1residential developmentobjectives 1 2 3 4principles development control 5 6 7 9 10 20 21 28 29 30 31 32 33 34 36 37 38 39 40 41 47 48 49 50 52 53 54 58 62transportation accessobjective 2principles development control 8 13 31 40 44 45 52 55 56residential zoneobjectives 1 2 3 4desired character principle development control 1 3 6 7 8 9 11 12lefevre peninsula west policy area 58objectives 1 2desired characterprinciples development control 1 2 3table pade 4 street bicycle parking requirementstable pade 5 street vehicle parking requirementsthese policy set full appendix evidenceeach party adduced expert evidence respective town planning witness summarised case appellantmr king evidence summary policy area provision seek minimumaveragedwelling site area residential flat building clearly contemplates least dwelling site area 300m2 proposed dwelling form density foreign element locality 6 sits comfortably within established streetscape pa 58 objective 1 seek redevelopment medium density achieved proposal conversely number dwelling reduced three would low density identified metropolitan adelaide planning strategy therefore fails satisfy policy area objective 1 7 proposed residential density dwelling type meet broader strategic residential development goal respect housing diversity choice one dynamic area city port adelaide enfield form redevelopment encouraged numeric measure certain side setback overshadowing criterion satisfied event proposal visually intrusive create unsatisfactory overlooking overshadowing andthe proposal functional provides good quality residential accommodation meeting contemporary lifestyle sought coastal location mr king view proposed built form consistent form recent redevelopment including neighbouring site south found elsewhere immediately beyond locality 8 said redevelopment poorly developed site policy area desirably undertaken generally greater housing density view proposal meet express policy area goal strategic residential development objective term accommodation type choice contributes positively prevailing variable residential character esplanade streetscape whilst mr king acknowledges shortfall certain side setback well exceedence dwelling density prescribed site area minimum manifest said term serious design built form impact loss reasonably expected resident amenity whilst increase overshadowing result principally length proposed building said compare favourably compliant building meeting pertinent setback provision also total building height le 9m maximum view evident design built form issue associated proposal notwithstanding variance respect dwelling density setback provision proposal merit approval case respondentthe council called town planning evidence support case mr rogic planning development officer council mr rogic said proposal fails considerable margin desired dwelling density standard way calculated said discount site potential accommodate four much smaller dwelling unlike four dwelling earlier 2012 lapsed development plan consent land term alternative approach defining average dwelling site area excluding common area 9 said exclusion common driveway area suggested mr king produced average 232m2per dwelling said represented significant shortfall 22 7 pertinent desired minimum 300m2per dwelling mr rogic considered however whole land forward proposed building far esplanade frontage essentially common area ought excluded net available site area method calculation give average dwelling site area 206m2per dwelling 31 3 shortfall pertinent provision cross examination put different approach appropriate determining average dwelling site area given difficulty allocating site area apartment style dwelling generally two dwelling matter ground floor space associated site area whilst acknowledged difficulty mr rogic accept appropriate assessing average dwelling site area instead sum building floor plate directly associated ground ground private open space suggested mr hilditch mr rogic view dwelling site area provision determinative matter failing alone fatal merit proposal said dwelling site area density policy would apply strictly area well defined generally consistent prevailing character adherence prescribed minimum dwelling site area important attaining desired character acknowledged however strict approach dwelling density apply subject circumstance given poorer quality housing stock policy area current mix dwelling type variable residential character locality expected undergo considerable change however mr rogic said instance failure meet pertinent site area standard manifest term significant failing proposal particular private open space setback inadequate storage excessive length building site coverage overshadowing impact compatible adjoining development overall character predominant within locality 10 discussionmatters disputethe strategic residential development goal applicable part city port adelaide enfield dispute expected considerable change established character dwelling density area subject locality semaphore south expected accommodate housing infill redevelopment generally greater density currently prevails agreed two storey form streetscape impact proposal broadly consistent reasonably expected development outcome land respect street presentation proposal seen comparable recent redevelopment undertaken along frontage including land immediately abutting subject land south issue disputeat issue consequence proposed four dwelling land total building site coverage floor area building setback particular planning opinion odds term functionality amenity impact proposal overshadowing bulk scale impact residential neighbour whilst dwelling densityper sewas seen party determinative issue matter substantial variance prescribed 300m2minimum dwelling site area discus key consideration following heading dwelling densitymr hilditch highlighted dwelling density provision policy area unclear applied apartment style development crude planning tool generally guide form infill housing development considerable difference lapsed four dwelling scheme previously approved land four dwelling scheme proposed highlight limitation relying dwelling density provisionsalonein achieving appropriate form development appellant submits circumstance proposed residential apartment site area dwelling considered floor plate dwelling together directly associated outdoor living space whether ground form ground terrace balcony method calculating site area mr hilditch said also avoids uncertainty determine area proposal common dwelling applying method calculation mr king arrived following site area apartment apartment 1 420m2apartment 2 430m2apartment 3 284m2apartment 4 284m2this would give average dwelling site area 357m2 meeting relevant minimum dwelling site area provision viz lefevre peninsula west policy area 58principles development controlresidential flat building minimum average site area per residence 300 square metre excluding common area floor plate method calculation however relevance intended purpose disassociates average site area spatial land based component put 11 m clare mr hilditch proffered calculation floor plate plan call look site area dwelling including private open space could build building number storey becomes irrelevant without reference site area land area absurdity physical land area removed calculation also make nonsense term low medium high density low density outcome might achieved example method calculation sizeable high rise apartment development dwelling enjoys generous floor area expansive balcony terrace appellant floor plate method calculation confirms commodious living outdoor living floor plate dwelling tell u nothing intensity person resident land associated level activity number household needing accommodated serviced scheme dwelling floor plate calculation proposed mr hilditch flawed establish conformance pa 58 principle 3 measure proposed four dwelling 1 012m2site fall well short 300m2average site area per dwelling minimum much 94m2per dwelling 31 3 exclusion common area net site area figure acknowledge policy measure including total building floor area building site coverage building height setback together functional consideration private open space carparking storage appropriate circumstance proposal whilst dwelling density provision still relevance nuanced assessment required apartment style housing product proposed matter lastly term number dwelling land accept put mr king 12 redevelopment land achieve total four dwelling would fail pa 58 objective 1 planning witness relied varying degree metropolitan adelaide planning strategy support view determine dwelling site area fall low medium high density confirmed m clare planning strategy relevant document matter per 22 9 thedevelopment act 1993viz 22 9 planning strategy taken account purpose application assessment decision part 4 division 2 part event unnecessary rely planning strategy document provide guidance dwelling site area intended achieved residential zone various policy areasbroadlyconfirms range dwelling site area expected achieved locality high medium low density also clear within pa 58 housing infill redevelopment achieving minimum 300m2average dwelling site area pdc 3 would regarded upper end dwelling yield anticipated medium density housing outcome building setbacksthe pertinent setback provision residential zoneprinciples development controldwellings sited side boundary side wall set back least 1 metre maximum height wall 3 metre b 2 metre maximum height wall 6 metre c 2 metre plus increase wall height 6 metre maximum height wall 6 metre reason put m clare 13 given form proposed residential development residential flat building alternative pedestrian access available rear two ground dwelling residential zone pdc 9 c effectively precludes potential boundary walling instance summarise proposed building setback pertinent provision pdc 8 follows minimum building setbackwall height ground leveldevelopment plan standard zone pdc 8 variance standardmain wall north south2 07m2 38m7 2m7 1m3 2m3 1m1 13m720mmterrace wall north south900mm1 17m5 4m5 3m2 0m2 0m1 1m830mmbedroom wall north south970mm1 33m1 6m2 0m1 0m1 0mcompliescomplies apartment 1 2 master bedroomin summary terrace screen wall extend distance 13m 5 1m 5 4m height prevailing natural ground level located order 830mm southern boundary much 1 1m northern boundary close respective side boundary main building wall street fronting element 6 9m 7 2m height natural ground level 720mm 1 13m close southern northern side boundary respectively middle building section 6 5m 6 7m high natural ground level positioned 700mm close northern side boundary length 13 5m 120mm close southern boundary limited 2 8m wall length proposed 9 5m setback esplanade frontage complies setback 1 3m behind 11 esplanade property north 700mm behind 9 9a esplanade property immediately south andthe rear building element meet relevant side setback provision extends however 1 12m close rear boundary form setback terrace screen wall also variance prescribed rear setback unreasonable feature proposal contribute physical impost building reason impact available sunlight well daylighting ground level habitable room 9a esplanade south building bulk formthe party agreed total building height streetscape presence satisfactory element proposal council concerned however overall mass bulk building considerable 43 5m building length mr rogic considers proposed building coverage height setback collectively produce excessive building bulk odds established reasonably expected pattern development policy area said feature proposal contribute excessive overshadowing 9a esplanade south appellant hand considers articulated stepped built form evidence appropriate design response taken suitably moderate impact land within relatively dynamic area council poorer housing stock expected replaced higher density infill housing variety dwelling type reasonable expect circumstance variation established pattern development particularly large deep site fronting esplanade following feature proposal locality noteworthy building designed three discrete building element 13m 16m length stepping 250mm 900mm respectively total building height towards rear land feature assist moderating height mass building extent variance prescribed setback guideline significant setback variance limited esplanade fronting element however 43 5m length proposed building exceptionally long even compared contemporary infill development double length recently constructed two storey semi detached dwelling abutting land south 9 9a esplanade 21 7m long length also exceeds unsurprisingly greater margin 18 6m long substantial detached dwelling abutting land north 11 esplanade rear yard neighbouring land east boord street north arthur street south esplanade exhibit spacious open yard typically associated sizeable property fronting esplanade contain shed well single two storey building set within 8m 15m respective rear boundary proposed building 12 5m wide 5 5m high prevailing natural ground however unmistakable two storey form set back little 6 88m rear boundary produce strong built presence odds prevailing reasonably expected outcome rear yard pertinent development plan provision andnotwithstanding proposed three discrete building element sizeable 4 3m southern side boundary setback middle building element lengthy continuous built form generally limited articulation particularly northern side boundary except ground level master bedroom wall also terrace screen wall project closer side boundary combined length height setback building design feature introduce particularly strong built form impose appreciable visual impact term building bulk mass feature symptomatic development land overshadowingresidential developmentovershadowingthe design location building ensure direct winter sunlight available adjacent dwelling particular consideration given window habitable room room excluding bathroom laundry hallway particularly living area b ground level private open space c upper level private balcony provide primary open space area dwelling development ensure north facing window habitable room room excluding bathroom laundry hallway existing dwelling allotment adjacent allotment receive least 3 hour direct sunlight portion surface 9 00 5 00 pm 21 june development ensure ground level open space existing building receives direct sunlight minimum two hour 9 00 3 00 pm 21 june least smaller following half existing ground level open space b 35 square metre existing ground level open space least one area dimension measuring 2 5 metre development increase overshadowed area 20 per cent case overshadowing already exceeds requirement council mr rogic questioned whether termed compliant form development depicted exhibit a5 appropriate baseline impact compare proposed overshadowing whilst acknowledged likely increase overshadowing given desire redevelopment land greater building density said pursuant design appearance pdc 4 building expected limited length height reduce visual overshadow impact view essence proposed building long high close southern side boundary overshadowing reduced acknowledged mr king available sunlight neighbouring outdoor living space south 9a esplanade meet requisite standard either term available sunlit area duration sunlight winter solstice whilst upper level living bedroom window 9a esplanade appear provided sunlight meeting requisite minimum three hour cannot said north facing ground level window associated habitable room 14 mr king view whilst window room shaded throughout critical period pdc 9 inevitable given east west alignment allotment fronting esplanade given also reasonably expected two storey form redevelopment policy area understanding overshadowing building various height winter solstice two storey building form controlling shadow source unless building setback side boundary distance greater total building height reason direct sunlight standard ground level habitable room window winter solstice cannot view reasonably expected met however stair screen wall setback 1 17m total building height 5 1m 5 3m fails moderate overshadowing throughout year daylighting impact habitable ground level room continuous built form overall building length even stepped building height also unreasonably limit sunlight penetrating neighbouring rear yard open spaceresidential developmentdwellings residential flat building ground level include private open space conforms requirement identified following table site area dwellingminimum area private open spaceprovisions250 square metre greater25 per cent site areabalconies roof patio deck like comprise part area provided area 8 square metre greater one part space directly accessible lounge room dining room living room excluding bedroom area equal greater 10 per cent site area minimum dimension 5 metre maximum gradient 1 10 le 250 square metres50 square metresbalconies roof patio like comprise part area provided area 8 square metre greater one part space directly accessible lounge room dining room living room excluding bedroom area 16 square metre minimum dimension 4 metre maximum gradient 1 10 building comprises one dwelling located ground level provision made 25 square metre communal open space per ground dwelling b private open space ground dwelling accordance table site area dwelling square metre minimum area private open space square metre minimum dimension private open space metre le 25082greater equal 250102proposed dwelling 1 2 enjoy direct access living area covered terrace also ground open rear yard total well excess prescribed minimum 50m2 116m2and 128m2 respectively dwelling 3 4 upper floor level provided associated ground outdoor living space however provided covered balcony courtyard collectively well excess 8m2minimum 43 8m2 conveniently accessed internal living room 48 5m2common garden area forward proposed building made available resident put appellant area considered serve required communal open space two ground dwelling council mr rogic critical inclusion floor area front balcony open space calculation said open street general public view cannot considered part private open space critical absence private ground outdoor living space made available upper level dwelling consider common garden area forward building appropriatecommunal open spaceas sought residential development pdc 31 resident dwelling available covered outdoor living space facing coast well private terrace ground level outdoor living area rear well disposed internal living room suitably proportioned whilst questionable whether front garden area practicable ground open space serve resident upper level resident generous ground outdoor living space meet functional entertaining need respect land proximity expansive coastal reserve associated grassed play space formal playground facility ready beach access likely well serve lifestyle anticipated outdoor living space need resident storageresidential developmentsite facility storagesite facility group dwelling residential park residential flat building include mail box facility sited close major pedestrian entrance site b bicycle parking resident visitor c household waste recyclable material storage area away dwelling external clothes drying area readily accessible dwelling complement development streetscape character dwelling incorporate ground level private open space dwelling le 50 metre sic ground level private open space incorporate area le 8 cubic metre per dwelling storage good food clothing either dwelling within non habitable space bathroom laundry hallway b garage carport outbuilding c within site communal facility provision made bin storage area basement capable accommodating requirement landfill waste green waste recyclable material dwelling wall mounted storage compartment proposed car space 2 8 inclusive addition separate 10m2storage facility provided also basement provision made bicycle parking facility site either resident visitor common mail collection facility identified proposal plan wall mounted storage compartment likely provide maximum 1 5m3to 2m3storage capacity potentially available upper level dwelling resident may also access common storage facility likely total capacity 20m3 whilst unclear practicable dedicated storage facility resident proposal particular occupier dwelling 3 4 ground outdoor living space given sizeable building floor plate terrace balcony area provided matter likely resident lifestyle storage need adequate provision made view likely storage need car parkinga total eight independently accessible car space provided basement level car park driveway gradient access arrangement space functionality resident occupier generally accepted party basement level carpark unlikely well used visitor notwithstanding roller door opened remote allow visitor access level however sizeable pool public car parking within esplanade also within public car parking area abutting coastal reserve conveniently serve likely visitor parking requirement surprisingly view manoeuvring arrangement car space 1 located end access aisle raised course hearing identified vehicle swept line depicted basement floor plan forward exit vehicle space relies upon one seven right angled car space 2 8 inclusive vacant execute three point turn car space free motorist must reverse back ramp onto esplanade manoeuvre acceptable safety perspective visibility pedestrian vehicular traffic within esplanade road reserve would severely constrained whilst household assigned car space 1 2 may well able juggle parking departure habit minimise risk undertake reversing manoeuvre simply poor planning design carpark manner proposed given ramp gradient involved matter likely pedestrian vehicular usage affected public carriageway designed proposal readily facilitate vehicle accessand exitmanoeuvres land forward direction procedural issuems clare put established debelle j often referred casecity port adelaide enfield v moseley 15 appellant obtained land division approval advance development scheme land use proposal determined said notwithstanding appellant matter advised land division proposed contrary expected practice leaf unresolved number practical management consideration common land may fetter council position matter land division ultimately acted upon land use application determined application principle set debelle j inmoseleywas considered honour judge cole erd full court judgment intru energy renewable development pty ltd v regional council goyder or 16 whichthe court said important understand inmoseley debelle j formulate principle law rather consideredthe development application himwith regard relevant provision applicable development plan context particular development particular development plan debelle j found goal development plan achieve orderly economic development compliance objective required disclosure applicant aspect proposed development emphasis added instance four dwelling earlier approved land number dwelling disposition residential flat building event matter dispute procedural consequence approved plan division instance question nature proposed dwelling residential flat building category 3 notice requirement procedure right flow determination procedural matter effective dwelling site area ground dwelling dedicated floor area upper level dwelling 3 4 well common floor area site area well defined proposal andwhilst land division approval term associated scheme description may assistance better understanding car space storage area allocated used fundamental matter matter council exercise discretion fettered event land division application lodged future time reason circumstance development application court determination land division proposed required advance planning merit proposed development determined conclusionthe land front coastal road semaphore south within relatively dynamic area council replacement redevelopment poorer housing stock higher density housing variety form appropriate two storey form street presence proposal satisfactory proposal well considered resolved architectural solution good quality strategic sense achieves pertinent residential development goal however equally met moderate scheme land including residential outcome involving three rather four dwelling however number failing collectively weigh grant development plan consent particular setback height configuration terrace wall need modified reduce visual impact daylighting overshadowing two habitable room window 9a esplanade continuous form two storey building excessive need modified ensure compact secondary building element rear yard improve setback two storey building mass rear boundary change continuous building feature proposal also required improve access sunlight neighbouring rear yard south reduce overall built mass visual impact andthe carpark design respect car space 1 need modified ensure vehicle independently access exit site forward direction respect number dwelling failure meet minimum average dwelling site area mr hilditch said little relevance circumstance apartment style residential development reason given bleby j inag building development pty ltd v city holdfast bay tanti 17 matter honour 32 said however whether four five unit appropriate development particular piece land probably carry little weight overall assessment proposal development plan significant concern respondent admitted argument size building commissioner called built form parameter building could designed accommodate three four larger dwelling five dwelling proposed without significant alteration external built form insignificant council development assessment panel report raise issue dwelling density minimum average dwelling site area matter determinative consideration proposal would however fail pa 58 objective 1 failed produce sufficient number dwelling take advantage premium coastal fronting location convenient access shop service reason number dwelling irrelevant consideration however crude policy tool instance tell u little form suitability proposal built form functionality various impact including overshadowing total building mass manner assembled site critical reason proposal seek develop much building land sited close boundary without adequate consideration overshadowing building mass impact side rear boundary reason appeal dismissed council refusal upheld order effect appendixcoastal areasobjectivesdevelopment require future public expenditure protection development environment principle development controldevelopment compatible coastal environment term built form appearance landscaping including use wall low pitched roof non reflective texture natural earth colour development site protected standard sea flood risk level defined 1 100 year average return interval flood extreme sea level tide stormwater associated wave effect combined plus allowance accommodate land subsidence year 2100 design appearanceobjectivesdevelopment high architectural standard responds reinforces positive aspect local environment built form amenity locality impaired appearance land building object principle develoment controlthe design building may contemporary nature exhibit innovative style provided overall form sympathetic scale development locality context setting regard shape size material colour building designed reduce visual bulk provide visual interest design element articulation b colour detailing c small vertical horizontal component design placing window e variation facade building sited close side boundary side boundary wall sited limited length height minimise visual impact building viewed adjoining property b overshadowing adjoining property allow adequate sun light neighbouring building building form unreasonably restrict existing view available neighbouring property public space external wall roof building incorporate highly reflective material result glare building design emphasise pedestrian entry point provide perceptible direct access public street frontage vehicle parking area building ancillary building group dwelling designed main facade face primary street frontage land situated balcony integrated overall architectural form detail building b sited face predominantly north east west provide solar access c minimum area 2 square metre setback building public road similar compatible setback building adjoining land building locality b contribute positively streetscape character locality c result contribute detrimental impact upon function appearance character locality specified zone policy area precinct setback development street frontage reflect setback adjoining building building locality energy efficiencyobjectivesdevelopment designed sited conserve energy minimise waste principle development controlbuildings sited designed ensure adequate natural light winter sunlight available main activity area adjacent building b open space associated main activity area face north exposure winter sun landscaping fence wallsobjectivesthe amenity land development enhanced appropriate planting landscaping work using locally indigenous plant specie possible principle development controldevelopment incorporate open space landscaping minimise hard paved surface order complement built form reduce visual impact larger building eg taller broader planting taller bulkier building component b enhance appearance road frontage c screen service yard loading area outdoor storage area processing facility operational area minimise maintenance watering requirement e enhance define outdoor space including car parking area f maximise shade shelter g assist climate control within around building h minimise heat absorption reflection maintain privacy j maximise stormwater use n establish buffer adjacent development area orderly sustainable developmentobjectivesorderly economical development creates safe convenient pleasant environment live residential developmentobjectivessafe convenient pleasant healthy living environment meet full range need preference community increased mix range number dwelling type available within urban boundary cater changing demographic particularly smaller household size housing senior supported accommodation higher dwelling density area close centre public community transport public open space regeneration selected area identified zone policy area level principle development controlwhere dwelling direct frontage street dwelling designed provide surveillance address street entry dwelling clearly visible street front enable visitor identify specific dwelling easily design residential flat building define individual dwelling external appearance building b provide transitional space around entry c ensure building entrance provide shelter visible easily identifiable street design location building ensure direct winter sunlight available adjacent dwelling particular consideration given window habitable room room excluding bathroom laundry hallway particularly living area b ground level private open space c upper level private balcony provide primary open space area dwelling development ensure north facing window habitable room room excluding bathroom laundry hallway existing dwelling allotment adjacent allotment receive least 3 hour direct sunlight portion surface 9 00 5 00 pm 21 june development ensure ground level open space existing building receives sic direct sunlight minimum two hour 9 00 3 00 pm 21 june least smaller following half existing ground level open space b 35 square metre existing ground level open space least one area dimension measuring 2 5 metre development increase overshadowed area 20 per cent case overshadowing already exceeds requirement dwelling set back allotment site boundary contribute desired character area b provide adequate visual privacy separating habitable room room excluding bathroom laundry hallway pedestrian vehicle movement dwelling setback side rear boundary progressively increased height building increase minimise visual impact building adjoining property b minimise overshadowing adjoining property site coverage limited ensure sufficient space provided pedestrian vehicle access vehicle parking b domestic storage c outdoor clothes drying rainwater tank e private open space landscaping f front side rear boundary setback contribute desired character area g convenient storage household waste recycling receptacle private open space land available exclusive use resident dwelling provided dwelling including residential flat building sited designed accessed directly internal living area dwelling b generally ground level side rear dwelling screened privacy c take advantage adversely affect natural feature site minimise overlooking adjacent building e achieve separation bedroom window adjoining site f northerly aspect provide comfortable year round use g significantly shaded winter associated dwelling adjacent development h shaded summer dwelling residential flat building ground level include private open space conforms requirement identified following table site area dwellingminimum area private open spaceprovisions250 square metre greater25 per cent site areabalconies roof patio deck like comprise part area provided area 8 square metre greater one part space directly accessible lounge room dining room living room excluding bedroom area equal greater 10 per cent site area minimum dimension 5 metre maximum gradient 1 10 le 250 square metres50 square metresbalconies roof patio like comprise part area provided area 8 square metre greater one part space directly accessible lounge room dining room living room excluding bedroom area 16 square metre minimum dimension 4 metre maximum gradient 1 10 building comprises one dwelling located ground level provision made 25 square metre communal open space per ground dwelling b private open space ground dwelling accordance table site area dwelling square metre minimum area private open space square metre minimum dimension private open space metre le 25082greater equal 250102private open space include driveway effluent drainage area rubbish bin storage site rainwater tank utility area common area parking area communal open space residential flat building group dwelling minimum dimension 2 5 metre ground level roof top private open space b 2 metre upper level balcony terrace balcony make positive contribution internal external amenity residential building sited adjacent main living area living room dining room kitchen extend dwelling living space maximum 30 per cent private open space provided covered veranda similar structure site facility group dwelling residential park residential flat building include mail box facility sited close major pedestrian entrance site b bicycle parking resident visitor c household waste recyclable material storage area away dwelling external clothes drying area readily accessible dwelling complement development streetscape character dwelling incorporate ground level private open space dwelling le 50 metre ground level private open space incorporate area le 8 cubic metre per dwelling storage good food clothing either dwelling within non habitable space bathroom laundry hallway b garage carport outbuilding c within site communal facility development protect privacy minimising direct overlooking upper level window external balcony terrace deck habitable room room excluding bathroom laundry hallway window useable private open space dwelling development greater single storey upper storey window directly overlook private open space adjoining property glazed fixed obscure glass window sill minimum 1 7 metre upper floor level b upper storey balcony located designed avoid directly overlooking private open space adjoining property habitable room room excluding bathroom laundry hallway dwelling c potential indirectly overlooking private open space adjoining property minimised use architectural technique wall angle protuberance screen measure fencing screen planting upper level window balcony terrace deck sill height le 1 7 metre permanently screened height le 1 7 metre finished floor level avoid overlooking habitable room room excluding bathroom laundry hallway window onto useable private open space dwelling permanently fixed external screening device designed coloured blend associated building external material finish external noise light intrusion bedroom minimised separating shielding room active communal recreation area parking area vehicle access way b service equipment area fixed noise source adjacent site development designed sited meet ambient internal noise level required byaustralian standard as2107 acoustic recommended design sound level reverberation time building interior residential development site abutting road within existing projected traffic volume exceeding 3000 vehicle per day sited designed constructed meetaustralian standard 2107 acoustic recommended design sound level reverberation time building interiorsso intrusion traffic noise dwelling significantly reduce amenity occupant b front fence wall supplement noise control building façade c room layout within building reduces impact noise room sensitive noise driveway crossover within local road network located driveway adjoining property separated driveway adjoining property optimise provision street car parking site parking provided regard number nature size proposed dwelling b proximity centre facility public community transport within walking distance dwelling c anticipated mobility transport requirement likely occupant particularly group aged person availability street car parking e loss street parking arising development eg increase number driveway crossover parking area servicing one dwelling size location serve user including pedestrian cyclist motorist efficiently conveniently safely b provide adequate space vehicle manoeuvre street parking area c reinforce contribute attractive streetscapes site visitor parking space group multiple dwelling residential flat building sited designed serve user efficiently safely b dominate internal site layout c clearly defined visitor space specifically associated particular dwelling ensure sited behind locked garage accessible visitor time group dwelling multiple dwelling residential flat building incorporate bicycle parking facility accordance withtable pade 4 street bicycle parking requirement site parking manoeuvring area servicing development abutting arterial road collector road listed intable pade 6 road hierarchy functionshould designed enable vehicle enter exit site forward direction transportation accessobjectivesdevelopment provides safe efficient movement motorised non motorised transport mode b ensures access vehicle including emergency service public infrastructure maintenance commercial vehicle c provides street parking appropriately located support make best use existing transport facility network principle developmemnt controldevelopment provide safe convenient access anticipated mode transport including cycling walking public community transport motor vehicle development make sufficient provision site loading unloading turning traffic likely generated development provided safe convenient access avoids unreasonable interference flow traffic adjoining road b accommodates type volume traffic likely generated development land use minimises induced traffic provision c sited designed minimise adverse impact occupant visitor neighbouring property development sited designed provide convenient access people disability development provide street vehicle parking specifically marked disabled car parking place meet anticipated demand accordance withtable pade 5 street vehicle parking requirement development consistent australian standard 2890 parking facility australian new zealand standard nzs 2890 parking facility b australian standard 1742 manual uniform traffic control device c australian standard 1428 design access mobility parking area line marked indicate parking bay movement aisle direction traffic flow undercroft garaging vehicle occur overall height bulk development adversely impact streetscape character amenity adjacent property b vehicle safely exit site without compromising pedestrian safety causing conflict vehicle c driveway gradient provide safe functional entry exit driveway adjacent wall fencing landscaping designed provide adequate sightlines vehicle pedestrian using adjacent footpath e opening undercroft garage area designed integrate main building minimise visual impact f landscaping mounding fencing incorporated improve presentation street adjacent property g overall streetscape character locality adversely impaired eg visual impact building bulk front setback relative adjacent development semi basement undercroft car parking suitably integrated building form residential zoneobjectivesa residential zone comprising range dwelling type including minimum 15 per cent affordable housing increased dwelling density close proximity centre public transport route public open space revitalisation utilised suburb particularly public housing area facilitate provision greater mix housing type improved residential amenity development contributes desired character zone desired characterthe zone cover substantial portion council area home large diverse population includes heritage dwelling character area dating 1850s significant public housing estate redeveloped former institutional agricultural land provide new housing estate diversity zone reflected identification separate policy area distinctive character new development consistent contribute character policy area located full range dwelling type variety allotment size provided including affordable housing housing aged appropriate location overall quality amenity zone progressively improve housing end economic life cycle replaced part comprehensive area redevelopment project smaller scale infill development result gradual increase density development provision additional public open space provide greater amenity recreation opportunity part increase residential density increase number dwelling two storey development recognise proximity adjoining development designed sited maintain privacy adjoining dwelling private open space area principle development controlthe following form development envisaged zone affordable housingdomestic outbuilding association dwellingdwellingresidential flat building inmedium density policy area 73vacant underutilised land developed efficient co ordinated manner increase housing choice maximise development potential land whilst ensuring compatibility adjoining residential development development undertaken unless consistent desired character zone except otherwise stated relevant policy area dwelling designed within following parameter parametervalueminimum setback primary road frontage established area setback difference dwelling adjacent allotment greater 2 metresat least average setback adjacent building non arterial road minimum setback rear boundary two storey component 8 metresmaximum number storeys2maximum building height natural ground level 9 metresdwellings sited side boundary side wall set back least 1 metre maximum height wall 3 metre b 2 metre maximum height wall 6 metre c 2 metre plus increase wall height 6 metre maximum height wall 6 metre 9 side boundary wall limited length height minimise visual impact adjoining property b minimise overshadowing adjoining property c achieve following parameter parameterdimension metre maximum height3maximum length9 equal length immediately adjacent wall adjacent allotmentsitingallow pedestrian access rear site along one side dwellingeaves project 1 metre setback area primary frontage principal address dwelling street secondary frontage street frontage principal address dwelling building design appearance particular regard following design element locality building height mass proportion b external material finish pattern texture colour decorative element c finished floor level roof form pitch e facade articulation detailing window door proportion f veranda eaves parapet g driveway crossover fence style alignment lefevre peninsula west policy area 58objectivesgradual redevelopment area medium density increase number house diversity housing stock redevelopment older housing stock desired characterwithin policy area poorer quality housing stock redeveloped density range housing increased new building designed blend existing higher quality housing stock principle development controldevelopment undertaken unless consistent desired character policy area dwelling minimum site area per dwelling 300 square metre excluding common area residential flat building minimum average site area per residence 300 square metre excluding common area table pade 4 street bicycle parking requirementstype developmentemployee resident parking space security level visitor shopper parking spacesecurity levelresidential flat building1 per 3 flats11 per 12 flats3 security level defined inaustralian standard 2890 3 parking facility bicycle parking facilitiestable pade 5 street vehicle parking requirementsform developmentnumber required car parking spacesdwellingin thedock one policy area 39 fletcher slip policy area 41 hart mill policy area 42 mclaren wharf policy area 44 north west policy area 45 port adelaide state heritage area policy area 47 port approach policy area 48andwest policy area 53 detached dwelling 2 space per dwellingsemi detached dwelling 2 space per dwellingrow dwelling 2 space per dwellingin rest council area two site space per dwelling containing 3 bedroom one covered 2ndspace tandem orthree site space per dwelling containing 4 bedroom one covered additional space tandem residential flat buildingwithin thedock one policy area 39 fletcher slip policy area 41 hart mill policy area 42 mclaren wharf policy area 44 north west policy area 45 old port reach policy area 46 east minories street port adelaide state heritage area policy area 47 port approach policy area 48 southern approach policy area 51 southern gateway policy area 52andwest policy area 53 3 storey less1 bedroom 1 space per dwelling2 bedroom 1 2 space per dwelling3 bedroom 1 5 space per dwellingvisitors 1 space per 4 dwellings4 storey more1 bedroom 0 75 space per dwelling2 bedroom 1 space per dwelling3 bedroom ore 2 space per dwellingvisitors 1 space per 5 dwellingswithin rest council area one covered site resident space per dwelling one site visitor space per dwelling 50 per cent independently accessible b grouped shared use 1 exhibit a7 appendix c 2 see city port adelaide enfield development plan lefevre peninsula west policy area 58 pdc 3 3 exhibit a1 sheet 2 4 figure 18 exhibit a7 page 13 5 exhibit a7 paragraph 31 page 13 6 exhibit a7 page 18 paragraph 61 fourth bullet point 7 exhibit a7 page 18 paragraph 61 third bullet point 8 see particular exhibit a7 figure 10 11 page 9 9 lefevre peninsual west policy area 58 principle 3 10 exhibit r1 paragraph 41 11 transcript page 106 line 23 29 12 exhibit a7 page 18 paragraph 61 third bullet point 13 transcript page 43 line 30 36 transcript page 117 line 25 38 transcript page 118 line 1 4 14 exhibit r6 depicts bedroom 3 4 along affected ground floor north elevation 15 2008 sasc 88 16 2014 saerdc 48 17 2009 sasc 11 16 january 2009

Knox & Knox [2017] FamCAFC 93 (18 May 2017).txt

knox knox 2017 famcafc 93 18 may 2017 last updated 25 may 2017family court australiaknox knox 2017 famcafc 93family law appeal jurisdiction father applied federal circuit court copy transcript completed parenting proceeding application refused father appeal determination full court jurisdiction determine appeal order subject appeal made exercise original jurisdiction thefamily law act 1975 cth appeal dismissed family law act 1975 cth federal circuit court australia act 1999 cth family law rule 2004 cth federal circuit court rule 2001 cth appellant mr knoxrespondent m knoxindependent child lawyer victoria legal aidfile number mlc2336of2013appeal number soa19of2017date delivered 18 may 2017place delivered melbourneplace heard melbournejudgment thackray strickland kent jjhearing date 18 may 2017lower court jurisdiction federal circuit court australialower court judgment date 20 february 2017lower court mnc 2017 fcca 291representationthe appellant personthe respondent person assistance interpreter independent child lawyer appearanceorders 1 appeal dismissed 2 parenting appeal appeal registrar directed seek pursuant r 2 08 thefederal circuit court rule permission obtain copy trial transcript subject substantive appeal parenting order made 6 april 2016 publish reason judgment federal circuit court support note form order subject entry order court record notedthat publication judgment court pseudonymknox knoxhas 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 full court family court australia melbourneappeal number soa 19 2017file number mlc 2336 2013mr knoxappellantandms knoxrespondentandindependent child lawyerreasons judgmentex temporekent jthe appellate jurisdiction court relevant appeal expressed following term ofs 94aaa 1 thefamily law act 1975 cth act 94aaa 1 appeal lie family court decree federal circuit court australia exercising original jurisdiction act self evidently appeal lie court decree federal circuit court australia made exercise original jurisdiction act conversely jurisdiction court entertain appeal extend decree decision made otherwise exercise original jurisdiction act reason follow judgment order made federal circuit court 20 february 2017 subject appeal cannot characterised order made exercise original jurisdiction act follows court jurisdiction entertain appeal order appeal must therefore dismissed context appeal arises following trial federal circuit court took place six day 28 30 september 2015 1 october 17 18 december 2015 6 april 2016 judge jones made final parenting order respect three child mr knox father m knox mother order provide child live mother spend time father father exercised right appeal order filing notice appeal 3 may 2016 amended notice appeal filed 6 july 2016 parenting appeal parenting appeal court pending undoubtedly making parenting order trial judge exercising jurisdiction conferred bys 69h 4 act question court jurisdiction parenting appeal however final order made act respect parenting order jurisdiction exercised act federal circuit court spent unless jurisdiction enlivened application made act consequent upon father instigating parenting appeal 7 july 2016 regional appeal registrar made order including order consistent rr 22 23 22 24 thefamily law rule 2004 father file appeal book including transcript trial 25 august 2016 given finite resource federal circuit court family court transcript obtained even many trial parenting proceeding heard federal circuit court trial division court however particular case judge jones ordered relevant service provider auscript funded public expense transcript trial honour reason judgment delivered respect parenting order replete numerous quotation reference trial transcript whilst honour obtained transcript order direction made release party proceeding thus self represented father ordered appeal registrar file appeal book parenting appeal including trial transcript made various attempt obtain federal circuit court administratively transcript knowing held court part court record attempt culminated application case father filed federal circuit court 7 november 2016 seeking federal circuit court provide transcript whilst order made judge jones 20 february 2017 dealing application permitted father read take note trial transcript available court file application otherwise dismissed order subject appeal father seek court order appeal order made federal circuit court 20 february 2017 discharged reason judgment 20 february 2017 order record father evidence primary judge cost father obtaining transcript via auscript would 12 000 7 reason also record father sworn evidence cannot afford expense however primary judge apparently satisfied father impecunious cannot afford obtain transcript auscript relying part honour described hazy recollection father employment trial worked professional capacity whilst reason judgment parenting order reflect father employment financial circumstance time parenting trial central focus proceeding reason record father employed finance broker guide father level income reason also record father administratively assessed pay child support three child 46 92 fortnight 138 readily apparent financial circumstance father time trial concluding december 2015 whatever actually would displace father sworn evidence trial judge financial inability pay 12 000 transcript february 2017 u father submitted taxation return past four completed financial year reflected taxable income 20 141 9 380 16 144 3 019 respectively year father submitted limited capital retained following earlier property settlement parent exhausted legal representation parenting proceeding fact father legal representation historically also matter trial judge relied upon rejecting father evidence could afford pay 12 000 relevant transcript reason judgment 20 february 2017 reflect honour primarily relied upon honour described policy federal circuit court emanating court legal committee primary judge recorded 6 court policy considered legal committee federal circuit court australia recently last year provides transcript court proceeding obtained common occurrence may made available party seek appeal decision whatever reason purpose reading inspecting transcript copy transcript provided thus primary judge made order conformity stated policy section 89of thefederal circuit court australia act 1999 cth fcc act provides chief judge responsible managing administrative affair federal circuit court australia 93 fcc act provides chief judge may appoint committee purpose advising chief judge relation management administrative affair federal circuit court may fairly assumed legal committee federal circuit court referred primary judge committee appointed pursuant 93 fcc act also may reasonably assumed primary judge accurately stated policy referred reason delivered 20 february 2017 however 43 fcc act provides practice procedure federal circuit court australia accordance rule court made fcc act section 81 fcc act contains rule making power rule court federal circuit court notably subsection 2 81 provides rule court effect subject provision made another act rule regulation made another act respect practice procedure particular matter reference 81 2 policy determination rule 2 08of thefederal circuit court rule 2001provides search inspection copying document forming part court record relevant term r 2 08 follows 2 08 searching record 1 following person may search court record relating family law child support case inspect copy document forming part court record attorney general b party lawyer party independent child lawyer case ba case affect may affect welfare child child welfare officer state territory c permission court person proper interest case ii information obtainable court record case permission court person researching court record relating case 2 subrule 1 part court record may searched inspected copied court document b permission court part court record 2a permission paragraph 1 c 2 b may include condition including requirement consent person person class person mentioned court record b paragraph 1 must specify research applies 3 considering whether give permission rule court must consider following matter purpose access sought b whether access sought reasonable purpose c need security court personnel party child witness limit condition imposed access use court record 4 rule 2 32 federal court rule applies searching record proceeding family law child support proceeding 5 rule court documentincludes document filed case include correspondence transcript forming part court record note 1 section 121of thefamily law actrestricts publication court proceeding note 2 access court record may affected thenational security information criminal civil proceeding act 2004 seen r 2 08 3 expressed mandatory language matter considered determining whether give permission rule individual case rule reflects transcript obtained proceeding form part court record court document defined rule thus permission sought obtain part court record comprising transcript notably general policy referred r 2 08 3 amongst mandatory consideration considered determining individual case whether permission sought ought granted curiously primary judge make reference r 2 08 thefederal circuit court rule indeed seems primary judge uncertain jurisdiction exercised making order made respect father application case 4 5 primary judge recorded application case filed 16 november 2016 sense role isfunctus officiobecause issued judgment matter matter dispute question really administrative one court deal circumstance extraordinary length proceeding led judgment time proceeding took gap court took unusual step ordering transcript earlier noted primary judge seems determined application accordance policy honour referred rather reference matter prescribed r 2 08 3 effect thefederal circuit court rulesas expressed 81 2 fcc act would seem make application relevant rule subject policy opposed relevant countervailing statutory provision whether primary judge honour described exercising administrative function exercising jurisdiction pursuant thefederal circuit court rulesis necessary u determine concluded however whatever jurisdiction primary judge exercising cannot said exercise original jurisdiction act give rise right appeal court exercise earlier noted jurisdiction act exercised making final parenting order exercise complete rule 2 08of thefederal circuit court rulesreflects obvious conclusion particular case transcript obtained court transcript form part court record rule 2 08also reflects convention party litigation ought access court record litigation context party appealed decision federal circuit court provision r 2 08 2 party seek permission obtain copy transcript purpose pursuing appeal r 2 08 3 matter court must consider considering whether grant permission reflects conventional notion access justice purpose father seek obtain transcript advance appeal r 2 08 3 circumstance father cannot afford 12 000 pay auscript secure transcript difficult see could concluded permission seek reasonable purpose advancing appeal notably appeal determination bring end present uncertainty creates extant primary caring mother three child subject proceeding parenting arrangement father contends availability trial transcript essential enable advance argument parenting appeal regard least ground parenting appeal would appear case course hearing ascertained mother also self represented would wish access transcript meeting father appeal respect parenting order given evidence cost obtaining transcript auscript would seem significant amount public money already expended federal circuit court obtaining trial transcript trial heard six day would seem unreasonable expenditure occurred court also expend similar significant amount public money obtain transcript appeal expenditure could easily avoided federal circuit court providing court transcript rule 2 08of thefederal circuit court rulesdoes confine access court record party litigation attorney general indeed party proper interest may seek federal circuit court permission inter alia obtain copy transcript forming part court record case court legitimate interest ensuring pending appeal resolved indeed statutory directive 97 3 act ensure proceeding protracted whilst appeal must dismissed want jurisdiction would direct direction made parenting appeal appeal registrar behalf court seek administratively permission federal circuit court pursuant r 2 08 thefederal circuit court rulesas person proper interest obtain copy transcript federal circuit court purpose parenting appeal purpose appeal registrar obviously liberty publish reason federal circuit court australia reasonably observed attorney general legitimate interest access justice litigant appeal court preservation public fund andthe resolution appeal court father aside challenge may seek make elsewhere order made 20 february 2017 course liberty make representation attorney general attorney general seek permission r 2 08 impediment father publishing reason attorney general might father well advised await outcome application made appeal registrar court pursuing attempt course matter would order 1 appeal dismissed 2 parenting appeal appeal registrar directed seek pursuant r 2 08 thefederal circuit court rule permission obtain copy trial transcript subject substantive appeal parenting order made 6 april 2016 publish reason judgment federal circuit court support need add 28 march year court corresponded attorney general inviting intervene proceeding pursuant 91 1 act appearance behalf attorney general appearance behalf independent child lawyer thackray ji agree reason justice kent agree order honour proposes strickland ji agree order proposed justice kent reason provided order want add one comment though unfortunate say least matter reached stage particularly father appeal held abeyance pending resolution whether could obtain copy transcript fact obtained trial judge purpose enabling honour hear determine parenting proceeding federal circuit court hopefully identifying pathway father also mother provided copy relevant transcript issue resolved appeal proceed justice served certify preceding thirty four 34 paragraph true copy reason judgment honourable full court thackray strickland kent jj delivered 18 may 2017 associate date 22 may 2017

Commissioner of Police v Eaton & Anor [2012] HCATrans 189 (17 August 2012).txt

commissioner police v eaton anor 2012 hcatrans 189 17 august 2012 last updated 22 august 2012 2012 hcatrans 189in high court australiaoffice registrysydney s86 2012b e w e e n commissioner policeapplicantanddavid grant eatonfirst respondentindustrial relation commission nswsecond respondentapplication special leave appealfrench cjbell jtranscript proceedingsat sydney friday 17 august 2012 11 46 amcopyright high court australiamr j leeming sc may please court appear learned friend mr c l seck applicant instructed bartier perry mr crawshaw sc court plea appear learned friend m p f lowson first respondent instructed walter madden jenkins french cj thank mr crawshaw see submitting appearance second respondent face mr leeming look like highly localised problem statutory interpretation mr leeming yes say equivalent statute french cj want seem parochial saying mr leeming although decision court inferdinandsout similar identical statute south australia point way outcome want tell honour generally applicable beyond new south wale aspect question statutory construction arises primarily put basis decision going something important jurisdiction industrial relation commission new south wale affect hundred probationary police constable every year namely whether right french cj affidavit somewhere number case pending mr leeming honour honour asked junior morning one see people graduate goulburn twice year hundred affidavit number far judge considered question jurisdiction appeal question law divided 3 3 say first bizarre capricious view prevails far probationary constable dismissed better merit right review place industrial relation commission confirmed police officer say great respect plain face court appeal erred rejecting legal consequence short point could make good quickly secondly fair reading reason central decision court appeal unusual provision section 218 application beyond new south wale unusual always common ground word cannot mean say need go back 60 year find great respect justice tobias erroneously considered analogue led error say occurred term general proposition quite rare perhaps go construing face inconsistent provision act aspect decision would say respect go beyond parochial circumstance jurisdiction state court within state bell j come back parochial circumstance moment appears accepted justice handley found paragraph 14 application book 48 unfair dismissal regime 1991 act applied probationary constable accepted mr leeming yes accepted least matter practice happened learned friend point reversal practice belatedly recognised perhaps honour know probably better legislative history driven emerged certain commission bell j yes mr leeming wish take honour time legislative history honour go bundle authority said applying every single essentially every single police constable new south wale come page 5 bundlesection 80 2 thepolice act1990

AMEPKIU v Inghams Enterprises Pty Ltd [2001] QIRComm 63; 167 QGIG 41 (3 May 2001).txt

amepkiu v inghams enterprise pty ltd 2001 qircomm 63 167 qgig 41 3 may 2001 last updated 15 may 2001queensland industrial relation commissionindustrial relation act 1999 278 unpaid wagesautomotive metal engineering printing kindred industry industrial union employee queensland inghams enterprise pty limited w28 2001 commissioner bloomfield 3 may 2001unpaid wage overtime penalty rate calculation payment work commencing prior ordinary starting time provision engineering award state arbitrated matter employee informed change ordinary starting time application dismissed decisionthe automotive metal engineering printing kindred industry industrial union employee queensland union applied commission order directing inghams enterprise pty limited respondent pay trevor jones sum 6 1030 20 together interest union alleges mr jones directed commence work prior alleged ordinary starting time 7 00 regular basis period 16 february 1995 28 june 1999 paid appropriate penalty rate work accordance provision engineering award state clause 4 4 2 award provides follows 4 4 2 employee required report work midnight 6 00 shall paid rate double time overtime worked ordinary starting time monday friday 7 00 saturday evidence led union mr jones also leading hand mr thomas hamilton mr jones said received payout approximately december 1994 represented overtime payment rate double time work performed 5 30 6 00 previous several year said time mid june 1999 advised either verbally writing ordinary starting time would changed 7 00 6 00 said december 1994 onwards hour 6 00 7 00 continued paid time half rate mr hamilton also referred december 1994 payout addition said instructed late 1994 early 1995 could remember mark clock card mr jones would paid one half time ordinary rate work performed 6 00 7 00 respondent called evidence mr brian craft engineer responsible maintenance inghams site queensland period 1984 late 1998 also called evidence m jeanette maguire nee bryant company payroll officer mr craft said 1994 issue arose regarding payment overtime early start mr jones mr hamilton employee paid rate time one half work performed prior 6 00 rather double time arrangement made memorandum dated 15 december 1994 backpay mr jones period three year period one year case mr hamilton mr craft said result investigation took place time knew 6 00 earliest time could specify mr jones ordinary commencing time said verbally advised mr jones official starting time ordinary hour would 6 00 several day issued 15 december 1994 memorandum authorising backpay payroll officer m maguire approached seek confirmation mr jones advised 6 00 starting time wish another backpay claim mr craft said confirmed spoken mr jones change ordinary starting time m maguire wrote short note effect mr jones personnel file initialled m maguire gave evidence approached mr craft soon received 15 december 1994 memorandum confirm mr jones knew 6 00 start mr craft responded told mr jones change m maguire said make sure change recorded took yellow post note mr craft desk wrote trevor jones official start time 6 signed note mr craft initialled note attached original 15 december 1994 memorandum produced evidence conclusionafter considering verbal written evidence produced commission reached conclusion balance probability mr jones informed around december 1994 formal starting time working ordinary hour would 6 00 reached conclusion number reason firstly dispute overtime payment calculation undertaken ensure mr jones mr hamilton paid rate double time work performed prior 6 00 accordance initial provision clause 4 4 2 regard fact company made payout going back three year case mr jones find extremely unlikely company would taken necessary action obviate future claim underpayment wage informing official starting time ordinary hour purpose secondly mr craft unchallenged evidence second half 1994 negotiation underway regarding enterprise agreement cover inghams maintenance employee one issue ability stagger commencing time ordinary hour fairly early starting hour case employee company aware pay double time ordinary starting time employee required report work midnight 6 00 given mr jones asked start work 5 30 unlikely company would changed ordinary starting time 7 00 6 00 reduce penalty payment obligation award clearly permitted happen thirdly m maguire unchallenged evidence spoke mr craft relevant time whether informed mr jones official starting time ordinary hour would 6 00 given recently authorised payment backpay incorrectly applying award unlikely mr craft would told spoken mr jones change starting time actually done contemporaneously produced note confirms discussion mr craft m maguire occurred suggested fourthly mr jones stated cross examination mr craft mentioned late 1994 early 1995 could alter starting time 6 00 chose think unlikely mr craft would mentioned change starting time context likely scenario actually informed mr jones change rather informing could make change chose fifthly mr jones knowledge 1994 award required payment rate double time work performed prior normal starting time commenced work midnight 6 00 genuinely believed ordinary starting time 7 00 would surely made claim payment well date claim actually came fore regard accept evidence believed raised 1995 mr craft certain given event 1994 would pressed contended union mr jones mr jones 7 00 start company continued pay rate time half hour 6 00 7 00 backpay calculation undertaken 1994 reason occurred unclear mr hamilton said instructed make notation mr jones paysheet whilst mr craft say one could authorised instruction never gave one mr hamilton may fact mr jones paid single time allowed award provision starting time altered company asserts establish ordinary starting time remained 7 00 reason stated determined mr jones informed around december 1994 ordinary starting time would 6 00 accordingly union claim underpayment wage accordance clause 4 4 2 engineering award state must fail application dismissed l bloomfield commissioner appearance m h patterson mr b burton automotive metal engineering printing kindred industry industrial union employee queensland mr r egan jones ross inghams enterprise pty limited released 3 may 2001

Legal Services Commissioner v Bradley [2022] QCAT 209 (19 July 2022).txt

legal service commissioner v bradley 2022 qcat 209 19 july 2022 last updated 2 august 2022queensland civil andadministrative tribunalcitation legal service commissioner v bradley 2022 qcat 209parties legal service commissioner applicant vkevin bradley respondent application ocr277 21matter type occupational regulation mattersdelivered 19 july 2022hearing date 19 july 2022heard brisbanedecision hon peter lyon qcassisted annette bradfielddr julian lamontorders respondent publicly reprimanded respondent pay penalty sum 5 000 respondent prohibited applying obtaining principal level practising certificate three year 19 july 2022 respondent must pay applicant standard cost incidental discipline application cost assessed proceeding supreme court queensland catchword profession trade lawyer complaint discipline professional misconduct unsatisfactory professional conduct generally solicitor engaged dishonest act period time solicitor falsely represented agreement settlement complainant solicitor intentionally emailed copy wrong settlement offer complainant sign solicitor substituted signature page old deed unsigned signature page new deed solicitor admits wrongdoing whether private public reprimand appropriate whether complainant entitled compensation claim amount compensation claimed specified complainantslegal profession act 2007 qld 456 2 e 456 4 b 462 1 464 464 465appearances representation applicant b clements instructed legal service commissionerrespondent k bradley self represented complainant j meikle self represented reason decision 1 discipline application arises engagement m meikle husband shall refer entirely accurately complainant background 2 complainant purchased air conditioning system home fault air conditioner apparently caused damage home received quotation sum 18 211 37 repair damage 3 manufacturer air conditioning unit offered pay sum complainant either builder complainant rectification work completed complainant wished money paid nominated bank account directly accept settlement proposed manufacturer engaged respondent relation matter late april 2020 wrote manufacturer demanding payment amount 18 211 37 payment made 4 respondent commenced proceeding magistrate court claiming amount subject quotation together cost manufacturer offered settle matter line earlier demand say paying sum 18 211 37 complainant nominated bank account complainant bearing legal cost offer made 10 june 2022 may referred june settlement offer 5 manufacturer provided deed release settlement setting term associated offer offer however rejected complainant manufacturer filed notice intention defend defence response claim made behalf complainant magistrate court respondent instituted application summary judgment listed hearing 13 august 2020 6 submission provided manufacturer legal representative sent respondent complainant time respondent appears come view summary judgment application would successful least would provide better result complainant offer made june accordingly contacted complainant decided respondent attempt june settlement offer renewed 7 manufacturer prepared renew june settlement offer subject deduction amount 2 400 incurred counsel fee defend summary judgment application manufacturer provided revised deed recording change june settlement offer point misconduct respondent started occur led discipline application misconduct applicant 8 12 august respondent sent email complainant falsely representing manufacturer agreed settle matter term subject june settlement offer untrue amount manufacturer prepared pay reduced 2 400 9 11 september 2020 respondent emailed complainant copy original deed provided manufacturer relation june settlement offer suggested sign without signature witnessed signed document returned 10 complainant document came back purported witness signature although present complainant signed deed respondent substituted executed signature page deed complainant signed signature page revised deed complainant seen executed respondent sent document thus created manufacturer solicitor resulted effectively settlement client manufacturer far manufacturer concerned apparent respondent instruction settle matter fashion 11 respondent told complainant manufacturer requested settlement money paid respondent trust account provided document direction payment trust account requested sign course reflect true situation manufacturer requested settlement money paid respondent trust account rather something respondent decided done could attempt retrieve situation unfolding 12 respondent sent letter complainant 17 september 2020 letter stated would receive 16 664 52 15 811 37 would paid behalf manufacturer 853 15 would paid respondent described punishment making earlier effort persuade complainant accept june settlement offer 13 amount 16 664 52 derived deducting amount legal fee outlay original offer 18 211 37 time complainant becoming concerned conduct respondent sent signed copy original deed directly manufacturer solicitor true position eventually emerged led complaint made present applicant characterisation conduct 14 seen recital event number respect respondent engaged dishonest conduct described applicant submission series dishonest act carried period time included email 12 august 2020 stating contrary truth manufacturer prepared settle accordance original settlement offer email enclosing copy original deed rather deed revised reflect manufacturer current position settlement sent complainant 11 september 2020 substitution signature page signed complainant unsigned signature page revised deed manufacturer solicitor reason think conduct quite serious characterised professional misconduct characterisation adopted tribunal matter 15 question arise order made including particular compensation order turning matter however convenient record factor relevant order made first respondent ultimately contested allegation made applicant proceeding initially reluctance accept conduct dishonest would seem respondent persuaded least respect course conduct engaged would put complainant position similar position would fact presented true ultimately respondent shown good sense consulting counsel accepted counsel advice recognise conduct dishonest followed course end therefore virtually complete cooperation respondent applicant relation proceeding 16 second thing noted applicant submitted respondent conduct demonstrates loss diminished capacity part respondent make sound judgment respondent credit accepted stated tribunal reason doubt factor led decide retire legal practice 17 third matter noted applicant legal practitioner 49 year 45 year spent sole practitioner suggestion previous misconduct part possibly exception question cost reason think conduct engaged personal gain seems mistakenly motivated desire retrieve mistake made earlier order regarding disciplinary application 18 turning order sought applicant first order respondent publicly reprimanded doubt reprimand appropriate undersection 456subsection 2 paragraph e tribunal satisfied practitioner engaged professional misconduct may make order think fit including order practitioner publicly reprimanded unless tribunal considers special circumstance warranting private reprimand 19 although respondent advanced matter written submission support proposition private reprimand sufficient seek identify circumstance truly special would warrant course proposed make order respondent publicly reprimanded 20 second order proposed applicant respondent pay fine sum 5 000 tribunal concerned seriousness respondent misconduct respondent written submission contended fine 2 000 plainly insufficient imposition referred legislation penalty important number reason including effect general deterrent misconduct part practitioner order must end reflect particular circumstance case misconduct quite serious number mitigating factor identified earlier reason circumstance tribunal intends make order respondent pay penalty sum 5 000 21 applicant seek order respondent prohibited applying obtaining principal level practising certificate three year date order respondent referred fact retired legal practice however course today hearing appear contest appropriateness particular order recognising although intention resume practice circumstance could possibly change tribunal considers public interest appropriate make order proposed applicant 22 applicant also proposed order applying principal level practising certificate three year period respondent must take certain step submission specifically order prospect respondent applying principal level practising certificate seem sufficiently likely eventuate warrant making order made question cost dealt later order regarding compensation claim 23 m meikle attended hearing participated relation matter relevant claim compensation order tribunal power relation order quite limited seems seek order relation two matter first sum 2 400 amount settlement offer manufacturer reduced cost incurred relation application summary judgment proceed second relates cost ultimately carrying repair home complainant amount claim specified 24 tribunal power found in 456 4 b read withs 464ands 465 thelegal profession act 2007 qld section 464 identifies one form compensation order order law practice pay complainant amount compensation pecuniary loss conduct found professional misconduct australian legal practitioner involved legal practice order made 25 case respondent sole practitioner relevant distinction practice practitioner noted however order one limited pecuniary loss section 465provides compensation order pecuniary loss must made unless tribunal satisfied complainant suffered pecuniary loss conduct concerned relevance present case 26 loss 2 400 resulted fact initial offer manufacturer accepted loss tribunal view resulted conduct preceding conduct subject application word loss resulting rejection initial offer made behalf manufacturer allegation rejection offer result misconduct practitioner misconduct identified earlier reason really relates event occurred somewhat later time evidence indicate summary judgment real prospect manufacturer would settle matter amount greater revised offer tribunal satisfied loss result conduct subject discipline application 27 aspect order sought complainant unspecified amount increased cost repair home tribunal recognises indeed quite likely cost repair increased may well loss attributable respondent misconduct material enables tribunal ass amount claim tribunal therefore position make order compensation respect loss propose order regarding cost 28 remains question cost unders 462 1 tribunal must make order requiring person found engaged conduct described prescribed conduct pay cost unless tribunal satisfied exceptional circumstance exist exceptional circumstance identified would warrant refusal cost order 29 applicant seek order respondent pay standard cost incidental application assessed proceeding supreme court queensland nothing said suggest appropriate order make respect applicant cost tribunal make order effect 30 complainant made submission relation cost order favour order made order 31 accordingly proposed make order term indicated reason namely respondent publicly reprimanded respondent pay penalty sum 5 000 respondent prohibited applying obtaining principal level practising certificate three year 19 july 2022 respondent must pay applicant standard cost incidental discipline application cost assessed proceeding supreme court queensland

Capital One Securities Pty Ltd v Soda Kids Holdings Pty Ltd & Ors [2011] VSC 563 (8 November 2011).txt

capital one security pty ltd v soda kid holding pty ltd or 2011 vsc 563 8 november 2011 last updated 29 november 2011in supreme court victorianot restrictedat melbournecommercial equity division ci 2011 00644capital one security pty ltd acn 125 836 160 plaintiffvsoda kid holding pty ltd acn 138 693 937 orsdefendants judge randall asjwhere held melbournedate hearing 18 july 2011date judgment 8 november 2011case may cited capital one security pty ltd v soda kid holding pty ltdmedium neutral citation 2011 vsc 563revised 28 november 2011 practice procedure plaintiff application summary judgement plaintiff entered loan agreement first third defendant fourth defendant another guarantor first third defendant unable repay loan due date fourth defendant agreed mortgage interest family home extend due date repayment second loan agreement term incorporated provision first loan agreement fifth defendant became guarantor second loan agreement issue construction whether mortgage previously granted property fourth fifth defendant formed part security referred second load agreement whether term second loan agreement uncertain needed decide effect entering second loan agreement without obtaining independent legal advice whether defence fifth defendant real prospect success civil procedure act 2010 s 61 63 64 appearance counselsolicitorsfor plaintiffmr w upjohnlewenberg lewenbergfor first fourth defendantsmr j walsh brannaghdarroll nelsonfor fifth defendantms k moorhouse perk solicitor sixth eighth defendantsno appearancehis honour 1 summons filed 27 may 2011 plaintiff seek summary judgment first fifth defendant amount set prayer relief first fifth defendant fourth fifth defendant possession land situate known 14 peachy court pascoe vale state victoria together damage main profit assessed 2 amended statement claim plaintiff set request defendant advanced money first second third defendant loan agreement dated 19 july 2010 acknowledgment agreement 1 fourth fifth defendant guarantor pursuant acknowledgment agreement 3 instrument mortgage dated 1 march 2010 fourth fifthnamed defendant mortgaged peachy court land plaintiff defendant made default acknowledgment agreement plaintiff served various notice dated 21 december 2010 11 january 2011 pursuant acknowledgment agreement mortgage transfer land act 4 claim directly relevant summary judgment application seek relief respect deed charge dated 25 september 2009 given first second third defendant defendant asset undertaking plaintiff sought obtained injunction respect sale asset contended subject charge affidavit sworn support injunction application also relied upon relation summary judgment application 5 first fourth defendant rely primarily affidavit josephine minnella sworn 17 june 2011 affidavit set relationship party relationship daniella bussolaro first three defendant became incorporated 25 september 2009 bussolaro fourth defendant director first three defendant personal capacity guarantor executed loan agreement capital one security pty ltd trustee capital superfund first loan agreement initial advance 150 000 repayable 25 december 2009 2 advance made 7 october 2009 sum 150 000 repayable 7 january 2010 200 000 19 october repayable 19 january 2010 6 fourth defendant deposed first loan agreement varied agreement first third defendant repaid 50 000 27 december 2009 sought extension loan term three advance variation documented tom karas officer plaintiff said would extend time repayment provided bussolaro fourth defendant secured guarantee land 3 fourth defendant deposed

Commissioner Determination (Failure to obtain fully informed consent) [2018] VLSC 7; (2 May 2018).txt

commissioner determination failure obtain fully informed consent 2018 vlsc 7 2 may 2018 last updated 4 september 2019victorian legal service commissionera notice made 318 legal profession uniform law victoria citation commissioner determination failure obtain fully informed consent 2018 vlsc 7date determination 2 may 2018orderspursuant section 299 1 legal profession uniform law victoria uniform law decided respondent lawyer engaged unsatisfactory professional conduct make following order respondent lawyer reprimanded pursuant section 299 1 b uniform law statement reason name1 died 21 may 1984 appointed sister executor name 1 left estate mother life sister life society name remainder sister died 20 february 2013 administration estate name 1 completed sister appointed name 2 first executor name 3 second executor executor estate collectively executor sister left estate equal part second executor name 4 first beneficiary name 1 estate upon appointed executor sister estate executor appointed trustee name 1 estate deed executed 13 august 2013 pursuant section 41 thetrustees act 1958 executor engaged respondent lawyer administer sister estate name 1 estate collectively estate first executor previously worked lawyer respond lawyer law practice since retired legal practice neither sister estate name 1 estate contained commission clause september 2013 july 2015 various communication exchanged party relevant communication outlined 3 september 2013 first executor wrote respondent lawyer informing wished claim executor commission work performed executor name 1 estate sought advice amount commission would entitled charge 12 september 2013 respondent lawyer wrote first executor informing commission 4 5 5 gross value name 1 estate would justified letter contain advice relation law regarding claiming commission particular tosection 65of theadministration probate act1958

Industrial Relations Commission Decision 1553_1994 [1994] AIRC 1350; (5 September 1994).txt

industrial relation commission decision 1553 1994 1994 airc 1350 5 september 1994 industrial relation commission decision 1553 1994 b0387 dec 1553 94 print l5090 australian industrial relation commissionindustrial relation act 1988s 170ma certification agreement transport worker union australia bramble australia limited c 32444 1994 bramble transport service mount waverley agreement 1994 various employee private transport industry commissioner grimshaw melbourne 5 september 1994 condition employment certified agreement 170maindustrial relationsact 1988 requirement act met agreement certified decision following decision issued transcript 9 august 1994 melbourne matter concern application pursuant 170ma theindustrialrelations act 1988 act transport worker union australia bramble australia limited certification agreement part settlement industrial dispute c 01520 1982 party complied relevant rule regulation commission basis submission made proceeding content statutory declaration provided party satisfied company single business agreement made settlement industrial dispute requirement division 21 ofpart vibof act met consequently certify agreement known bramble transport service mount waverley agreement 1994 operate conjunction transport worker award 1983 print f2076 t0140 agreement operate 9 august 1994 shall remain force period two year appearance k brotherson together mr beaurteaux appearing bramble australia ltd hale appearing transport worker union australia hearing detail 1994 melbourne august 9 end text end text

Queensland Law Soc Inc & Anor v PA Sande [1997] QSC 57 (1 April 1997).txt

queensland law soc inc anor v pa sande 1997 qsc 57 1 april 1997 last updated 22 march 1999in supreme courtof queenslandno 713 1995 queensland law soc inc anor v p sande queensland law society incorporated andthe council queensland law society incorporatedapplicant prosecutorsand paul alexander sanderespondentreasons judgment thomas jdelivered 1 april 1997catchwords contempt attachment sequestration contempt court breach injunction acting practising solicitor conveyancer directly indirectly drawing preparing instrument relating real estate reward without certificate solicitor act amounting practice solicitor act amounting practice conveyancer whether delegation agent subcontractor whether engagement third person alters nature act principal undertakes reward provision overall conveyancing service act queensland uncertificated person allegedly agent sa land broker acting principal behalf queensland client act agent queensland still prohibited law society nsw v ramalca 1988 12 nswlr 34discussed stamping lodgment search requisition title settlement statement giving legal advice whether document relating real estate drawn prepared queensland injunction restraint individual acting practising queensland solicitor conveyancer conveyancing practice conducted company individual major shareholder director manager personally devised system caused procured act company whether injunction breached statute interpretation whether definition rule governs meaning word act queensland law society act1952 s 5 38 39 46 legal practitioner act1995 19 counsel mr r perry plaintiffsmr english defendantsolicitors mccullough robertson plaintiffsmr richard keller defendanthearing date 10 17 march 1997in supreme courtof queenslandno 713 1995 queensland law soc inc anor v p sande queensland law society incorporated andthe council queensland law society incorporatedapplicant prosecutorsand paul alexander sanderespondentreasons judgment thomas jjudgment delivered 1 april 1997i n e xfacts2engagement duncan sande associate 6services offered provided rcs 9the standard retainer post injunction 11absence certification 13a typical conveyancing transaction 14further activity rcs 20advice negotiation 20other part service requisition search stamping lodging settlement statement 21general 23issues findings24knowledge order 24standard proof 24 practising conveyancer 24activity rcs 28conveyancing practice 28attempted delegation drafting 29stamping lodging etc whether done agent duncan sande associate 33personal act mr sande 36practising solicitor conveyancer 36drawing preparing instrument queensland 40conclusions46this motion commit mr sande prison contempt reason breach order court made 5 june 1995 common ground order took effect later 28 june 1995 shortly stated order restrained mr sande 1 directly indirectly acting practising queensland solicitor conveyancer without certificate 38 thequeensland law society act 2 directly indirectly expectation fee gain reward drawing preparing conveyance deed instrument writing relating real estate state queensland notice motion cite fourteen particular instance breach part order referring certain service activity performed fourteen named person factsmr sande certificate land broking south australian department education qualified practise land broker south australia year asserted right practise one mean another conveyancer queensland activity largely centred around company changed name property pack australia pty ltd property pack 15 june 1992 material time manager director secretary company wife director profit entitlement activity company complex mr sande disclaimed knowledge actual position saying affair left accountant however wife expectation receiving approximately fifty percent company profit property pack company registered south australia principal activity stated property conveyancing principal place business given suite 2 31 crombie avenue bundall queensland property pack registered business name queensland namely realty conveyancing service rcs name registered 12 january 1994 business name search contains entry business commenced 1 january 1994 nature business described conveyancing service issue need determined concerning extent property pack trading rcs relevant actor whose action mr sande cannot held accountable also extent mr sande personal action render liable convenience discussion stage shall describe relevant dealing rcs business name conducted reference rcs course property pack trading rcs generally speaking dealing client rcs held entity would look client mr sande held expert would provide necessary guidance mr sande material time employed property pack manager mr sande think weekly wage 100 also say received salary payable weekly paye taxation deduction made infer must happened wage fixed 100 per week mr sande also motor vehicle expense paid property pack receives director drawing time coming effect mutual recognition legislation mutual recognition act1992

0902202 [2009] RRTA 448 (18 May 2009).txt

0902202 2009 rrta 448 18 may 2009 last updated 1 june 20090902202 2009 rrta 448 18 may 2009 decision recordrrt case number 0902202diac reference clf2008 156662country reference malaysiatribunal member antoinette younesdate 18 may 2009place decision sydneydecision tribunal affirms decision grant applicant protection class xa visa statement decision reasonsapplication reviewthis application review decision made delegate minister immigration citizenship refuse grant applicant protection class xa visa unders 65of themigration act 1958 act applicant claim citizen malaysia arrived australia october 2008 applied department immigration citizenship protection class xa visa november 2008 delegate decided refuse grant visa february 2009 notified applicant decision review right letter date delegate refused visa application basis applicant person australia protection obligation refugee convention applicant applied tribunal march 2009 review delegate decision tribunal find delegate decision rrt reviewable decision unders 411 1 c act tribunal find applicant made valid application review unders 412of act relevant lawunders 65 1 visa may granted decision maker satisfied prescribed criterion visa satisfied general relevant criterion grant protection visa force visa application lodged although statutory qualification enacted since may also relevant section 36 2 act provides criterion protection visa applicant visa non citizen australia minister satisfied australia protection obligation 1951 convention relating status refugee amended 1967 protocol relating status refugee together refugee convention convention criterion grant protection class xa visa set inpart 866of schedule 2 themigration regulation 1994 definition refugee australia party refugee convention generally speaking protection obligation people refugee defined article 1 convention article 1a 2 relevantly defines refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return high court considered definition number case notablychan yee kin v miea 1989 hca 62 1989 169 clr 379 applicant v miea 1997 190 clr 225 miea v guo 1997 191 clr 559 chen shi hai v mima 2000 hca 19 2000 201 clr 293 mima v haji ibrahim 2000 hca 55 2000 204 clr 1 mima v khawar 2002 210 clr 1 mima v respondent s152 2003 2004 222clr1 html class autolink_findacts 222 clr 1

Transdev NSW South Pty Ltd [2016] FWCA 7416 (25 October 2016).txt

transdev nsw south pty ltd 2016 fwca 7416 25 october 2016 2016 fwca 7416fair work commissiondecisionfair work act 2009s 185 application approval single enterprise agreementtransdev nsw south pty ltd transdev nsw ag2016 5744 transdev nsw bus enterprise agreement 2015 2018passenger vehicle transport non rail industrydeputy president bullsydney 25 october 2016application approval transdev nsw bus enterprise agreement 2015 2018 1 application made transdev nsw south pty ltd applicant approval enterprise agreement known thetransdev nsw bus enterprise agreement 2015 2018 agreement application made pursuant tos 185of thefair work act 2009 act agreement nominated multi enterprise agreement 2 application stated agreement sought cover employee transdev nsw south pty ltd transdev nsw pty ltd upon enquiry m emma clements general manager people culture applicant indicated believed company carrying common enterprise m clements believed case transdev nsw south pty ltd transdev nsw pty ltd traded name shared logo branding centrally managed one company subsidiary 3 order agreement cover transdev nsw south pty ltd transdev nsw pty ltd employer must qualify single interest employer 4 172 2 act provides employer 2 employer single interest employer may make enterprise agreement single enterprise agreement particular 172 5 act state two employer single interest employer employer engaged joint venture common enterprise b employer related body corporate c employer specified single interest employer authorisation operation relation proposed enterprise agreement concerned 5 mason j inaustralian softwood forest pty ltd v attorney general nsw ex rel corporate affair commission 1981 hca 49 1981 148 clr 121 defined common enterprise paragraph 133 mason j stated enterprise may described common consists two closely connected operation footing one part carried b deriving separate profit even though pooling sharing receipt profit enough two operation constituting enterprise contribute overall purpose unites enterprise common participant accordingly common enterprise 6 satisfied employer listed clause 2 agreement single interest employer pursuant tos 172 5 act employer engaged common enterprise alternative employer listed clause 2 agreement likely defined related body corporate within meaning ofs 50of thecorporations act 2001 7 agreement cover employee employed light rail driver operational controller authorised officer customer service officer trainer per requirement unders 186 3 act satisfied group employee covered agreement fairly chosen 8 thetransport worker union twu employee organisation involved agreement making process bargaining representative twu filed astatutory declaration f18 stating supported approval agreement consultation clause 9 consultation clause agreement meet requirement 205 act provide consultation process relation change regular roster ordinary hour work 10 pursuant 205 2 act model consultation term schedule 2 3 thefair work regulation 2009will taken term agreement attached atannexure aof decision public holiday pay 11 commission wrote applicant concern clause 35 agreement allows employer withhold public holiday pay employee absent employment working day public holiday may detrimental compared withs 116of national employment standard ne 12 applicant responded providing undertaking term applied shift worker 13 commission wrote applicant noting agreement definition shift worker consistent definition thepassenger vehicle transportation award 2010 award cover employee would covered agreement commission concerned agreement shift worker may entitled additional week annual leave pursuant 87 1 b act 14 applicant responded providing undertaking business engages shift worker definition shift worker award applied better test boot 15 respect better overall test boot 186 act term condition agreement overall beneficial thepassenger vehicle transport award 2010 award relevant instrument purpose boot agreement award entitlement reduced including casual loading however agreement provides base rate pay significantly higher classification agreement annual leave loading 25 increased minimum engagement casual employee weekend public holiday conclusion 16 taking account higher rate pay beneficial entitlement agreement balancing benefit term agreement le beneficial award satisfied employee better overall agreement undertaking 17 undertaking taken term agreement copy markedannexure b therefore satisfied undertaking result substantial change agreement per 190 3 b act 18 twu stated f18 wish covered agreement accordance withs 201 2 act note agreement cover employee organisation 19 satisfied requirement s 186 187 188 act relevant application approval met 20 agreement approved accordance 54 1 agreement operate 7 day approval nominal expiry date agreement 30 june 2018 deputy presidentprinted authority commonwealth government printer price code g ae421700pr586453 annexure aannexure bvar _gaq _gaq _gaq push _setaccount ua 9592794 1 _gaq push _trackpageview function var ga document createelement script ga type text javascript ga async true ga src http document location protocol http ssl http www google analytics com ga j var document getelementsbytagname script 0 parentnode insertbefore ga

Financial Framework (Supplementary Powers) Amendment (Social Services Measures No. 2) Regulations 2023 (F2023L00544).txt

financial framework supplementary power amendment social service measure 2 regulation 2023 f2023l00544 explanatory statementfinancial framework supplementary power amendment social service measure 2 regulation 2023 f2023l00544 explanatory statementissued authority minister financefinancial framework supplementary power act 1997financial framework supplementary power amendment social service measure 2 regulation 2023thefinancial framework supplementary power act 1997 ff sp act confers commonwealth certain circumstance power make arrangement money spent make grant financial assistance form otherwise involved company arrangement grant program company class arrangement grant relation power conferred specified thefinancial framework supplementary power regulation 1997 principal regulation power ff sp act make vary administer arrangement grant may exercised behalf commonwealth minister accountable authority non corporate commonwealth entity defined section 12 thepublic governance performance accountability act 2013 principal regulation exempt sunsetting section 12 thelegislation exemption matter regulation 2015 item 28a principal regulation subject sunsetting regime thelegislation act 2003 would generate uncertainty continuing operation existing contract funding agreement commonwealth third party particularly extending beyond 10 year well commonwealth legislative authority continue making varying administering arrangement grant program additionally principal regulation authorise number activity form part intergovernmental scheme would appropriate commonwealth unilaterally sunset instrument provides authority commonwealth funding activity underpinned intergovernmental arrangement ensure principal regulation continue reflect government priority remain date principal regulation subject periodic review identify repeal item redundant longer required section 32b ff sp act authorises commonwealth make vary administer arrangement grant specified principal regulation section 32b also authorises commonwealth make vary administer arrangement purpose program specified principal regulation section 32d ff sp act confers power delegation minister accountable authority non corporate commonwealth entity including subsection 32b 1 act schedule 1aa schedule 1ab principal regulation specify arrangement grant program section 65 ff sp act provides governor general may make regulation prescribing matter required permitted act prescribed necessary convenient prescribed carrying giving effect act thefinancial framework supplementary power amendment social servicesmeasures 2 regulation 2023 regulation amend table item 50 part 4 schedule 1ab principal regulation establish legislative authority spending two disability related service complaint resolution referral service crrs national disability abuse neglect hotline hotline within scope employment assistance service eaos program program administered department social service eaos ongoing program provides variety disability service support employer employ people disability support service eaos program expanded include crrs thehotline crrs established 2002 assist resolution complaint user australian disability enterprise ade disability advocacy service disability employment service de provider funded australian government hotline established 2001 free confidential service reporting abuse neglect people disability crrs hotline currently funded national disability insurance scheme transitioning commonwealth program continuity support budget cease 30 june 2023 service delivered part jobaccess gateway service contract contract includes range service funded eaos program hotline crrs sit within jobaccess contract funding service transferred eaos program fundingof 3 2 million two year 2023 24 crrs hotline ensure important service continue operate longer term arrangement determined detail regulation set atattachment statement compatibility human right atattachment b regulation legislative instrument purpose thelegislation act 2003 regulation commence day registration federal register legislation consultationin accordance section 17 thelegislation act 2003 consultation taken place department social service regulation impact statement required regulation apply non corporate commonwealth entity adversely affect private sector

R v Dole [1975] VicRp 75; [1975] VR 754 (28 February 1975).txt

r v dole 1975 vicrp 75 1975 vr 754 28 february 1975 r v dolesupreme court victoria full courtgowans mcinerney nelson jj6 7 28 february 1975gowans j appeal attorney general behalf crown sentence passed upon three conviction contention case sentence inadequate different sentence passed appeal brought s567a thecrimes act 1958 three conviction offence unlawfully indecently assaulting girl contrary tos55 1 thecrimes act 1958 maximum penalty prescribed offence one five year imprisonment respondent presented honour judge franich county court bendigo 27 november 1974 entered plea guilty count upon conviction made order respondent released upon entering recognizance sum 100 good behaviour three year come sentence called upon within seven day report named doctor parkville psychiatric unit thereafter undergo medical psychiatric treatment whether patient patient doctor nominee prescribe order two thing need said first upon proper analysis character order amount postponement deferring completion trial completed sentence passed court power bring offender complete trial passing sentence r v nicholson 1951 viclawrp 36 1951 vlr 273 breach condition offence failure undergo treatment prescribed offender may called sentence passed original offence breach sentence go unpassed secondly s567a 1 order made constitute sentence appeal may brought provision crown case therefore circumstance sentence deferred way penalty imprisonment imposed immediate effect respondent application kelvin martin dole man thirty six year age living bendigo occupation fitter assistant railway presentment admitted convicted court petty session bendigo 29 march 1961 two charge obscene exposure living first wife three child offence placed probation two year ordered seek medical attention psychiatric treatment deemed necessary common ground two occasion 1962 1963 respondent court charge obscene exposure case adjourned ultimately disposed without conviction respondent wife died married 1963 two child convicted court petty session bendigo 21 march 1966 two charge wilful obscene exposure placed probation three year ordered seek psychiatric treatment observe treatment prescribed common ground respondent court four occasion 1968 1969 1971 august 1974 charge seven obscene exposure case adjourned ultimately disposed without conviction rather sketchy information derived medical report put evidence learned judge respondent received treatment attending parkville psychiatric unit 1968 account history exhibitionism 1971 received treatment described report vigorous unpleasant said co operated said apparently successful result thereafter seen unit month patient first offence present consideration committed like last case obscene exposure august 1974 time respondent living second wife left soon live another man circumstance offence respondent habit picking school child family living nearby including prosecutrix girl nine occasionally came respondent house collect brother occasion respondent taking shower caused girl come bedroom got handle private part take pant put penis contact body vicinity vagina ejaculated gave small sum money sweet conduct repeated two occasion early october formed subject two count respondent apprehended 27 october committed trial 29 october account offence contained record interview respondent police deposition prosecutrix mother police officer learned judge time sentence 27 november 1974 apart admission previous conviction detail respondent criminal record learned judge psychiatric report furnished dr bell parkville psychiatric unit set account respondent treatment added fact since 4 november become day patient unit material relating respondent appearance charge obscene exposure resulted conviction adjournment apparently tendered crown admitted without objection respondent counsel plea made reference respondent exhibited sign community responsibility form social activity respected background material course relate conviction reason come within ban imposed s376 thecrimes act 1958under construction adopted majority court r v wilson 1956 viclawrp 31 1956 vlr 199 relevant matter least rebut discount alleged favour respondent circumstance became admissible counsel respondent put judge account respondent history informed could establish respondent devoted father exhibited manifestation community responsibility shape helping pensioner acting umpire junior football match submitted circumstance history showed respondent dire need substantial intensive psychiatric treatment said respondent eight year irregular attendant number psychiatric institution outpatient appreciated needed substantial assistance prepared submit patient institution condition imposed period necessary assure proper rehabilitation two proceeding learned judge time one another presentment charging respondent one count perjury committed 21 october 1974 magistrate court bendigo respondent also pleaded guilty proceeding hearing appeal sentence six month imprisonment imposed magistrate court date respect thirteen conviction shop breaking pavilion breaking larceny committed period october 1973 august 1974 beyond fact man concerned hearing contemporaneous kind order bond made circumstance little bearing matter determined relation conviction indecent assault seems objection matter heard time psychiatric report dr bell contained following observation respect respondent time unit care many observation abnormality personality including diminished ability see others see poor perception accepted bound society especially impaired respect truth poor ability foresee future consequence action lonely man lacking social skill self confidence hand good evidence devoted father active charitable work indecent assault child quality compulsion word opinion able cease behaviour easily danger young girl future report went recommendation follows taking factor consideration opinion therefore prison sentence would act deterrent man though threat sentence would respectfully suggest measure likely reduce chance anti social behaviour would require attend psychiatric attention together suspended sentence imposing sentence learned judge expressed reaction material way offence pleaded guilty indecent assault upon girl age nine year reading deposition show also bad case indeed trouble greatly even psychiatric report put indicates uncontrollable impulse part related category governed impulse long history offence wilful exposure acquired past trouble greatly think yet matter concern every judge discussed matter matter defilement young adult person age 36 child performing act defilement nine year old girl sickening thing happen understandable thing people mental aberration regard often committed people sort quirk regard appear natural thing far concerned natural perversion impulse appears conduct could controlled controlled matter concern decide counsel put forward certain matter relation relation appeal currently reserved decision concerning series 14 breaking offence think consider overall spectrum appeal matter dealing think one bear upon effect information placed proceeding require psychiatric attention intensive attention course aberration wilful obscene exposure temporary recovery according doctor achieved lasting rehabilitative effect appears need intensive extensive treatment far received need stage clear learned judge classed offence circumstance committed grave abhorrent adopted view product compulsive behaviour respondent conduct kind could ought controlled hand took effect material placed respondent present need intensive psychiatric attention directed achieving rehabilitative effect lasting far achieved treatment undergone basis conclusion learned judge proceeded reluctance simply shall still control break demonstrate practical term view offence accede request counsel given opportunity say great deal reluctance great deal confidence past history including fact psychiatric attention although doctor say threat imprisonment effective deterrent fact imprisonment certain right may well experience imprisonment least teach walk scot free court biggest deterrent strongly suspect may correct approach problem simply threat hanging head think may speedily forget walk court released common law bond sum 100 good behaviour period three year relation offence contained two presentment filed come sentence called upon case special condition within seven day report dr f j bell parkville psychiatric unit thereafter undergo treatment whether patient patient dr bell nominee shall prescribe treatment fails left clear duty protect community anti social criminal activity shall carry duty imposed upon method fails see whether gaol succeeds failed whether succeeds come bad went least community little rest activity child defiled meantime activity view offence seriously shall see gravity regard unfortunately perhaps fail respond treatment demonstrate unfit associate member community report court learned judge explained course taken way matter sentence worrying problem case reason decision largely contained transcript may say transcript possession time writing report insofar reason may discus three generally accepted object sentencing namely punishment rehabilitation deterrence offender others add omission indicate failed keep object mind case add however general proposition case deviant sexual behaviour would regard imposition gaol sentence much le value rehabilitative deterrence aspect criminal case present case presentment listed two prior conviction 1961 1966 wilful exposure psychiatric report gave ground hope long term interest society would better served medical treatment especially patient basis decision case view absence mitigating circumstance indecent assault necessarily reflects taking calculated risk view reason expressed court report justifiable course clear excerpt learned judge took grave view seriousness offence committed circumstance outlined ought inferred proper appreciation public indignation condemnation conduct also appears present mind absence mitigating circumstance existence capacity volitional action respondent pointed presence culpability conduct appreciated consideration called action tending deterrence indeed contemplated actual imprisonment distinct threat course strongly suspected might correct approach problem put aside favour affording opportunity respondent rehabilitation medical treatment could policed event breach failure influenced make election thereby retained power exercise control respondent light end result principle govern review judge discretionary judgment imposing sentence well established set high court house v r 1936 hca 40 1936 55 clr 499 passage pp 504 505 judgment complained namely sentence term imprisonment depends upon exercise judicial discretion court imposing manner appeal exercise discretion determined governed established principle enough judge composing appellate court consider position primary judge would taken different course must appear error made exercising discretion judge act upon wrong principle allows extraneous irrelevant matter guide affect mistake fact take account material consideration determination reviewed appellate court may exercise discretion substitution material may appear primary judge reached result embodied order upon fact unreasonable plainly unjust appellate court may infer way failure properly exercise discretion law repose court first instance case although nature error may discoverable exercise discretion reviewed ground substantial wrong fact occurred unlike court criminal appeal court given special particular power review sentence imposed upon convicted person authority belongs virtue general appellate power even respect particular jurisdiction conferred court criminal appeal limitation upon manner exercised formulated lord alverstone lcj said must appear judge imposing sentence proceeded upon wrong principle given undue weight fact r v sidlow 1908 1 cr app r 28at p 29 lord reading lcj said court interfere member would given le sentence sentence appealed manifestly wrong r v wolff 1914 10 cr app r 107 lord hewart lcj said court interferes matter principle ground substantial miscarriage justice r v dunbar 1928 21 cr app r 19at p 20 see skinner v r 1913 hca 32 1913 16 clr 336at p 340 per barton j p 342 per isaac j whittaker v r 1928 hca 28 1928 41 clr 230at pp 244 250 principle restated kitto j australian coal shale employee federation v commonwealth 1953 hca 25 1953 94 clr 621in well known passage p 627 shall repeat reference made lovell v lovell 1950 hca 52 1950 81 clr 513 pp 532 534 case highest authority appear establish true principle limiting manner appellate jurisdiction exercised respect decision involving discretionary judgment strong presumption favour correctness decision appealed decision therefore affirmed unless court appeal satisfied clearly wrong degree satisfaction sufficient overcome strength presumption may exist error consists acting upon wrong principle giving weight extraneous irrelevant matter failing give weight sufficient weight relevant consideration making mistake fact nature error may discoverable even sufficient result unreasonable plainly unjust appellate court may infer failure properly exercise discretion law repose court first instance house v r 1936 hca 40 1936 55 clr 499 pp 504 505 principle applied court appeal reduce sentence r v taylor meally 1958 vicrp 46 1958 vr 285 applied well appeal designed increase sentence r v butler 1971 vicrp 109 1971 vr 892 must either identifiable error sentence must merely arguably obviously wrong pertinent point principle applicable similar appeal new south wale legislation therefore applied court criminal appeal state r v smith 1955 72 wn nsw 216 similar situation consideration produce result grant bond conviction indecent assault set aside favour term imprisonment solicitor general appeared appellant accepted operation principle referred submitted error disclosed exercise sentencing discretion case submitted bad case regard nature offence sex age victim designed premeditated nature act absence compulsory urge regard fact respondent past given adequate opportunity procuring result treatment offence past present represented failure treatment ensure exercise sexuality contained within acceptable social limit present offence appear result psychiatric disorder distinct personality defect deficient value moreover particular form psychiatric treatment outlined case curative aspect given much weight final assessment said aspect punishment particular giving expression public condemnation accorded weight fact said valuing deterrent retributive aspect function sentencing valuation prospect rehabilitation however argument expressed meant judgment gave little weight propriety punishing particular offender particular offence satisfaction retributive general deterrence aspect sentencing gave much weight prospect rehabilitation psychiatric treatment solicitor general referred observation made adam crockett jj member court recent case r v williscroft 1975 vicrp 27 1975 vr 292at pp 299 300 thought case offender released upon probation granted good behaviour bond indictable offence ex hypothesi implicit circumstance offence sufficiently lacking heinousness permit consideration treated subsidiary prospect offender rehabilitation purpose punishment manifold element assume different significance different crime individual commission crime general deterrence retribution element must assume greater importance crime question serious one committed particularly grave form contemporary prevalence cause considerable community disquiet certainly remains true despite impact positive enlightenment manifest past generation proposal criminal law essentially preventive rather punitive see e g lady wootton crime criminal law 1963 hamlyn lecturer 15th series coercive measure repress criminal behaviour inevitable management society say concept punishment remains fundamental technique correctional treatment learned judge followed extract published statement late sir john barry general subject referred criminal law operating agency expression public indignation condemnation reference also made solicitor general said court r v phillips 8 august 1973 reported know case differ consequently one must expect find respect offence wide difference term penalty within range fixed parliament said punishment imposed must court said many occasion duly proportionate gravity offence circumstance committed must designed whilst time regard effect particular convicted person express indignation community see offender adequately appropriately punished sufficient act deterrent person community might minded commit like offence offender judge deal man guilty act sexual exhibitionism given opportunity court obtain cure tendency treatment successful guilty act given court opportunity failed committed act sexual nature female child circumstance view gross abhorrent man whatever deficiency personality shown indeed satisfaction judge fact incapable controlling behaviour whatever could said favour family social character offset discounted act anti social behaviour question case raise whether relation person circumstance proper put aside sanction provided statute control conduct subordinate consideration pointing imposition sanction prospect rehabilitation form medical treatment whether course represented failure give proper weight effect aspect punishment rehabilitation mr kennan counsel respondent submitted neither description statutory offence unlawfully indecently assaulting woman girl maximum penalty prescribed imprisonment term five year particular circumstance misbehaviour respondent home relation visitor towards person member general public without violence force matter combination required offence regarded judge coming within upper limit category grave offence generally class offence added circumstance respondent four prior conviction occasion two court appearance period thirteen year five year eight year since last appearance require view taken argument presented tended generally depress gravity case regard duty neighbour could properly regarded owing neighbour child visiting home regard age sex child age capacity respondent control conduct difficult disagree learned judge assessment bad case indeed dissent statement sickening thing happen view appeal court take considered case better albeit worse judge took mean case element culpability high mr kennan submitted argument significance curative aspect idea better cure offender punish downgraded view treatment failed cure respondent past could assumed ineffective future since past treatment said directed conduct although sexual character represented different form sexual deviance case success argument suffer said particular form treatment outlined opinion expressed psychiatric report psychiatric attention suspended sentence constituted measure likely reduce chance anti social behaviour entitled submitted accorded due weight may properly said consideration sentencing judge entitled form judgment purpose considering course proposes take appeal court ought treat error account judgment crux matter concern weight ought allocated circumstance offence offender punishment factor deterrence general individual comparison prospect medical cure offender medium individual rehabilitation counsel respondent submitted protection community ultimate objective learned judge entitled take view would sufficiently secured course taken true protection community ultimate objective system law may may correct say ultimate objective punishment law formulation would appear exclude element community demand satisfied depart standard others feel obliged observe allowed impunity even accepting formulation follow requirement sufficiently satisfied taking adequate step defer individual offender repetition offence deterrence others committing grave offence making manifest culpability relation go unpunished disregarded opinion matter error judgment material discloses respondent found culpable offence grave consideration treated subsidiary individual rehabilitation put conclusion higher individual opinion view opinion would held right thinking people reason think exercise discretion entrusted learned judge infected error miscarried ought reviewed take account various matter discussed think appropriate sentence ought one imprisonment two year count sentence concurrent would however fix relatively short minimum term nine month respondent would eligible parole could submit chose curative treatment opinion appeal allowed order appealed set aside lieu thereof sentence imposed term set warrant commitment issued mcinerney j fact appeal fully stated reason judgment delivered gowans j advantage reading since unable agree conclusion arrived brother gowans nelson becomes necessary state reason impelled different conclusion settled appeal s567a thecrimes act 1958 court determining question posed sub 4 section whether different sentence passed apply principle applied s568 4 crime act 1958 see r v butler 1971 vicrp 109 1971 vr 892 p 893 r v mitchell 1974 vicrp 75 1974 vr 625 p 630 principle set well knownpassages house v r 1936 hca 40 1936 55 clr 499 pp 504 5 australian coal shale employee federation v commonwealth 1953 hca 25 1956 94 clr 621 p 627 per kitto j quoted gowans j reason judgment would add reference passage majority judgment r v taylor meally 1958 vlr 285 p 289 said practice court interfere sentence imposed trial judge unless appears made mistake fact acted erroneous principle law taken account matter taken accountor failed take account matter taken account clearly given insufficient weight excessive weight matter taken account unless sentence obviously merely arguably severe lenient appeal attorney general argued basis u ultimately one material learned judge heard plea namely deposition psychiatric report criminal history sheet transcript remark counsel occasion plea ultimately taken one exception letter respondent second wife though tendered evidence marked exhibit b learned judge cannot found mr kennan counsel respondent indicated matter significance emerged letter second third indecent assault question occurred respondent second wife left discussion took place u far permissible learned judge u look material disclosed criminal history sheet constituting prior conviction referred presentment reference made provision s376 thecrimes act 1958and construction put upon section majority court gavan duffy dean jj lowe j dissenting r v wilson 1956 viclawrp 31 1956 vlr 199 1956 alr 503 followed applied sholl j r v phillips 1962 vicrp 6 1962 vr 55and quite recently considered court r v poulton 1974 vicrp 85 1974 vr 716 agree view expressed gowans j reason judgment since material question relate conviction come ban imposed s376 construction adopted majority r v wilson supra therefore become necessary case consider correctness decision speaking bound say learned judge denied additional information respondent previous act wilful exposure asked take course fact take would altogether unreal agree gowans j material relevant discussion whether material adduced learned judge prosecution request instance counsel respondent whether tendered prosecution rebut submission counsel respondent proper case requiring respondent undergo course psychiatric treatment view ultimate rehabilitation latter true explanation tender material gowans j said relevant matter least rebut discount alleged favour respondent hand material tendered request counsel respondent request tender entirely proper regard course counsel respondent inviting learned judge take indeed withholding material learned judge might given foundation argument discretion sentence vitiated sentencing judge ignorance respondent history act indecent exposure learned judge reference long history offence wilful exposure make clear material present mind said effect information placed proceeding require psychiatric treatment intensive attention course aberration wilful obscene exposure temporary recovery according doctor achieved lasting rehabilitative effect appears need intensive extensive treatment far received need stage solicitor general argued able detect learned judge made mistake fact save overstated one number breaking offence honesty dealt magistrate 21 october 1974 cannot sense regarded affecting decision relation count indecent assault consider indeed solicitor general argue learned judge acted erroneous principle law taken account matter taken account argued failed take account matter taken account took account fact respondent prior conviction indecent exposure number proceeding brought respondent respect act indecent exposure respondent convicted number offence magistrate bendigo 21 october 1974 said considered bound consider overall spectrum appeal matter indecent assault say least thereby preserved mistake accused character similar held vitiated exercise sentencing discretion learned trial judge r v kane 1974 vicrp 90 1974 vr 759 knowledge various act indecent exposure referred criminal history sheet might one factor end inclined learned judge accede argument case one rehabilitative treatment necessary could successfully argued learned solicitor general material irrelevant question sentence clear passage reason sentence quoted gowans j learned judge viewed crime revulsion cognisant community abhorrence offence attached great weight fact crime product uncontrollable impulse act respondent could controlled argued learned solicitor general sentence imposed learned judge explicable footing fully seized respondent moral culpability crime contention appears fly face language used learned judge treat language expressing state mind matter namely serious offence involved grave invasion physical moral integrity nine year old girl victim assault regarded assault sickening thing deliberate designed act product uncontrollable impulse learned judge expressed view psychiatric treatment respondent received past achieved temporary recovery lasting rehabilitative effect counsel submission respondent dire need substantial intensive psychiatric treatment evidently commended learned judge said respondent needed intensive extensive treatment far received said learned solicitor general learned judge attached undue weight question rehabilitation respondent given sufficient weight need deter respondent like minded offender repetition behaviour learned judge obviously however gave consideration aspect said although doctor say threat imprisonment effective deterrent fact imprisonment certain right may well experience imprisonment last teach walk scot free court biggest deterrent strongly suspect may correct approach problem simply threat hanging head think may speedily forget walk court expressed reservation view expressed psychiatric report threat imprisonment effective deterrent fact imprisonment transcript disclose learned judge expressly referred question deterrence person respondent question whether sentence reflect sense community outrage kind crime respondent committed point however accept observation learned judge report court set may say transcript possession time writing report insofar reason may discus three generally accepted object sentencing namely punishment rehabilitation deterrence offender others add omission indicate failed keep object mind case respect seems observation late sir john barry made atkinson v atkinson 1969 vicrp 34 1969 vr 278 pp 280 1 exercise judicial discretion maintenance property settlement defended divorce list mutatis mutandis equally applicable case judge sitting constantly exercise criminal jurisdiction county court bulk sentencing work respect indictable offence done court ought indeed astute draw adverse inference merely circumstance express reference made aspect deterrence punishment course remark made imposing sentence obvious learned judge applied mind question whether correct solution problem impose immediately operative custodial sentence clear considered matter point view punishing respondent crime committed protecting community particular child defilement respondent large remark made imposing sentence clear believed imposed term imprisonment respondent would unlikely emerge prison better went gaol result imposing term sentence imprisonment would community would period respondent incarceration rest activity child would meantime defiled indicates report drawing doubt experience must considerable general proposition case deviant sexual behaviour would regard imposition gaol sentence much le value rehabilitative deterrent aspect criminal offence short learned judge appears considered choice lay one hand imposing immediate term imprisonment view punishing respondent conduct protecting community anti social activity expressing community sense revulsion crime hand requiring respondent undertake course treatment intensive extensive nature respondent theretofore undergone hope would effectively rehabilitate respondent strengthening personality assisting resist temptation commit sexual assault future court keeping reserve however case psychiatric treatment failed achieve rehabilitation power protect community imposition substantial term imprisonment sentencing judge enjoined take account give expression community indignation revulsion crime may tempted ask context understood term community matter find term conceals process selection lord denning community appears synonymous right minded member community road justice 1955 p 4 lord birkett appears envisage kind gallup poll saying criminal law must represent remarkably high average population view regard penalty law abiding citizen must feel law effective protecting infraction liberty wrongdoer problem punishment p 10 new south wale herron cj r v cuthbert 1967 2 nswr 329 p 333 posed question would view average right minded citizen sydney case may various expression reflect impossibility arriving precise cross section many differing opinion topic punishment held individual community adjective right minded law abiding used recognition fact would discreditable law seek give effect extremist view palpably disabled fair judgment reason prejudice ignorance factor experienced judge often virtue knowledge experience gained bar bench dealing many case coming better informed matter relevant determination appropriate sentence many right minded member community law abiding citizen view appropriate sentence likely case realistic calculated achieve proper balance expression community indignation punishment deterrence whether particular general rehabilitation reform offender whatever factor may relevant particular case view many right minded law abiding member community lack knowledge experience hand imposing sentence sentencing judge ought walk far ahead herron cj r v cuthbert supra p 330 call general moral sense community must remember rightly wrongly attitude average member community criminal tends persistently punitive present appeal founded ultimately proposition course taken learned sentencing judge insufficiently punitive indeed punitive learned judge end concerned solely reformation offender complete disregard need punish said even learned judge adverted various aspect moral culpability deterrence community revulsion nevertheless given insufficient weight factor given excessive weight question rehabilitation respondent psychiatric procedure argument put expressed word used p 300 joint judgment adam crockett jj r v williscroft 1975 vicrp 27 1975 vr 292 learned judge case give aspect reformation weight ought allocated word valued nature circumstance gravity offence result discretion miscarried learned judge report say matter sentence worrying problem case made observation already referred general proposition case deviant sexual behaviour would regard imposition gaol sentence much le value rehabilitative deterrence aspect criminal offence conclusion would suspect accord view many informed right minded law abiding member community learned judge state report psychiatric report gave ground hope long term interest society would better served medical treatment especially patient basis go say decision view absence mitigating circumstance indecent assault necessarily reflects taking calculated risk add view reason expressed court report justifiable course learned judge nowhere expressed absolute confidence outcome action nature human event could hardly done appears learned judge took consideration gravity indecent assault want mitigating circumstance need punish respondent grave offence community revulsion crime need protect community commission crime respondent others best way achieve reconciliation resolution various factor directed mind question whether best way deterring respondent view say report would add others would send respondent gaol immediately also directed mind question whether term imprisonment would achieve anything temporary protection community protecting long respondent gaol leaving community risk repetition offence soon respondent completed sentence last matter doubt true trial judge imposed term imprisonment could made recommendation respondent receive appropriate psychiatric treatment whilst gaol would power direct respondent receive psychiatric treatment gaol common knowledge psychiatrist superintendent majesty prison pentridge far able ascertain psychiatrist full time duty gaol victoria although service psychiatrist may time time obtained consultative basis bendigo perhaps also beechworth prisoner may occasion brought pentridge gaol order receive psychiatric treatment however remembered sentencing judge determines whether convicted person sentenced term imprisonment director social welfare acting either personally delegate agency classification committee determines particular gaol term imprisonment served seesocial welfare act 1970s125 social welfare regulation 1962 division iii ptxiv reg107 reg108 reg109 reg110 reg111 reg112 doubt judge course passing sentence recommends person sentenced receive psychiatric treatment director social welfare appropriate delegate agency would seek give effect recommendation directing prisoner serve term imprisonment pentridge cannot however predicated done course case case supervening circumstance may cause director social welfare subsequently order prisoner transferred gaol psychiatric treatment impracticable furthermore learned judge imposed sentence imprisonment even coupled recommendation respondent receive psychiatric treatment gaol would thereupon become functus officio would control respondent counterpart legislation s20 commonwealth crime act 1914 1973 whereby sentencing judge may order convicted person shall imprisoned specified period year subject proviso served portion term sentencing judge may imposing sentence specify prisoner shall released recognizance good behaviour unexpired portion total term imposed sentence comply condition court see proper including instance condition consent undergo psychiatric treatment unexpired portion present case illustrates useful legislation could open learned judge take view think probable take view psychiatric treatment gaol really sufficient achieve necessary rehabilitation respondent personality respondent required intensive patient treatment although term direct respondent undergo treatment patient equally open conclude think remark sentencing report court suggest fact conclude long run protection community best achieved order fact made namely giving respondent opportunity seek indeed imposing obligation seek psychiatric treatment often said ultimate object criminal law protection community connection would adopt observation herron cj r v cuthbert 1967 2 nswr 329at 330 function criminal law purpose punishment cannot found single explanation depends upon nature type offence offender purpose may reduced single heading protection society protectionof community crime sentence regard proved circumstance seems time accord general moral sense community likely sufficient deterrent prisoner others per jordan cj r v geddes 1936 nswstrp 35 1936 36 sr nsw 554 court infrequently attempted analysis several aspect punishment r v goodrich 1952 70 wn nsw 42 retribution deterrence reformation said three fold purpose reality mean employed court attainment single purpose protection society imposed sentence imprisonment would easy way learned sentencing judge sentence would imposed immediate punishment respondent judge regarded deliberate offence without mitigating circumstance would vindicated community sense outrage offence would calculated deter respondent person respondent committing like offence future solution would view ignored assigned insufficient weight relevant factor incident learned judge regarded case deviant sexual behaviour imposition immediate gaol sentence might little deterrent effect respondent person afflicted similar deviance could predicated learned judge predicate psychiatric treatment required respondent undergo would rehabilitate respondent personality ensure would repetition offence learned judge thought treatment offered prospect sufficient justify taking called calculated risk achieving rehabilitation ensuring would repetition kind offence future treatment learned judge mind end produce result could fairly said think course taken learned judge would achieved protection society protection community crime r v cuthbert supra nevertheless perhaps learned judge great deal confidence outcome course proposed take held reserve power requiring respondent come sentence called gave respondent clear warning thereafter became necessary impose sentence respondent sentence would make plain respondent others community grave view learned judge took respondent moral culpability respect offence view decision within reasonable ambit discretion sentence confided learned judge mind courageous decision learned judge recognizes report represents taking calculated risk decision experienced judge would incorrect regard sentence weakly merciful r v radich 1954 nzlr 86 p 135 think indicates view offence heinous context think passage pp 299 300 joint judgment adam crockett jj r v williscroft 1975 vicrp 27 1975 vr 292quoted brother gowans reason judgment indicates case bond granted case heinous nature prepared exclude possibility may exceptional case notwithstanding heinousness offence ultimate protection society ultimate vindication law may require course pointed r v williscroft supra p 300 ultimately every sentence imposed represents sentencing judge instinctive synthesis various aspect involved punitive process true said case p 300 conclusion reached appellate court sentencing discretion imposed trial judge miscarried rest upon essentially subjective judgment largely intuitively reached appellate judge punishment appropriate conclusion arrived sentence subject appeal obviously merely arguably wrong important exercising appellate judgment bear mind warning starke j judgment r v williscroft p 304 erroneous suppose leniency purpose rehabilitation bestows benefit upon individual alone contrary said greater success achieved direction greater benefit community think learned judge case conscious consideration starke j advert passage quoted course took fact directed towards achieving maximum long term benefit community think learned judge fact weigh relevant consideration arrived decision care proper consideration think predicated course open circumstance case impose immediate term imprisonment one course open would satisfied person community disposed seek immediate short term solution problem sweeping respondent carpet keeping sight term imprisonment fixed minimum term respondent eligible parole leaving release still afflicted sexual aberration doubt whether community would satisfied imposition comparatively short minimum term respondent might free return locality lived free resume deviant sexual behaviour indeed think community might well outraged sentence course taken learned judge imposed immediate term imprisonment would see offered permanent protection society slender though chance ultimate rehabilitation respondent may regard lack success achieved psychiatric treatment past nevertheless success achieved community ultimately better protected thereby conscious doubt also trial judge possibility respondent observes condition recognizance good behaviour three year undergoing psychiatric treatment required treatment prof ultimately unsuccessful expiration three year period respondent commits act indecent assault protection society offence achieved respondent suffered punishment inconvenience undergoing treatment required otherwise conforming condition recognizance even conclusion involves proposition period good behaviour bond respondent required comply complied condition imposed law extent conformed community standard behaviour view appeal cannot succeed unless one accepts view way imposition immediate term imprisonment could learned judge properly carried function sentence view commended brother gowans nelson due respect opinion satisfied course taken learned judge obviously distinct arguably wrong cannot regarded representing proper weighing factor necessary considered sentencing judge learned judge seeking achieve overall protection society appellant conduct course taken learned judge view open balancing relevant factor reason opinion condition justify court interfering sentence imposed sentencing judge exist case view therefore appeal dismissed nelson j opinion question raised appeal whether regard relevant circumstance consideration sentencing court bear mind offence committed respondent required imposition custodial sentence proper exercise discretionary power court answer question affirmative discretion learned sentencing judge must clearly miscarried adopted course impose custodial sentence respondent fail observe condition recognizance period related question imposing custodial sentence would thereafter arise error manifested course judge adopted must due undervaluing overvaluing relevant consideration unnecessary endeavour identify opinion several factor case pointed necessity custodial sentence first place circumstance offence serious committed upon young girl nine year age married man aged thirty six although involved physical violence injury child came close carnal knowledge least constituted serious breach standard conduct observed towards young child could fail create genuine apprehension concern among parent young child neighbourhood constituted series repeated act premeditated could excused ground yielding sudden temptation according opinion psychiatrist result compulsive urge arising psychological emotional deficiency respondent second place offender man already two occasion released upon probation offence sexual nature spite leniency offended committing sexual offence much serious type consideration pointed strongly towards necessity custodial sentence apart consideration peculiar offender nature offence committed course general consideration applicable sentencing weight given personal deterrence offender future offence term recognizance upon released would course tend deter least currency bond arguable whether deterrence would greater le force involved custodial sentence general deterrence others however may tempted commit similar offence think doubt imposition custodial sentence upon offender would far greater force release offender upon bond likely community reaction course adopted ignored crime one would likely create reasonably based community fear indignation court adopts course public may well think leaf inadequately protected recurrence crime serious danger community respect administration law reduced without respect law cannot perform function course case justice offender requires court run risk also case risk outweighed consideration long run may result greater benefit community case fall first category opinion fall second regard weight consideration case pointed necessity custodial sentence would require forceful consideration justify exercise discretion adopting alternative course consideration upon learned judge relied support decision upon information respondent required intensive extensive psychiatric treatment previously received judge expressed report court psychiatric report gave ground hope long term interest society would better served medical treatment especially patient basis said decision view absence mitigating circumstance necessarily reflected taking calculated risk learned judge course entitled take account view formed upon evidence likelihood medical treatment rehabilitating offender however clear rate likelihood high indeed upon evidence difficult see could rated described course adopted taking calculated risk opinion material judge likelihood insubstantial carried little weight opposed factor pointed towards custodial sentence even likelihood rehabilitation result medical treatment high would circumstance case considered overweighed factor concerned whether different opinion learned judge formed appropriate course pursued said fall within limit proper discretionary judgment would bound identifiable error pointed vitiating discretionary judgment review error must manifested decision judge arrived decision must obviously wrong judge whose decision case review experienced judge misapprehension seriousness offence course careful consideration case appears regard relevant matter type case however comparison one view one reach conclusion whether decision obviously wrong faced problem comparing relative length sentence sentencing judge appellate court might respectively considered appropriate case room differing opinion without impugning decision review already pointed question whether judge discretion miscarried fall considered precise test viz whether proper exercise court discretionary power required imposition custodial sentence opinion follows discretion learned trial judge must miscarried failed therefore agree gowans j order appealed set aside also agree sentence considers imposed upon respondent gowans j order court follows appeal allowed order county court set aside lieu thereof respondent sentenced two year imprisonment count term concurrent minimum term nine month fixed term served becoming eligible parole warrant commitment issue sentence imposed commence date referred s122 b thesocial welfare act 1970 day respondent apprehended pursuant warrant commitment solicitor crown john downey crown solicitor solicitor respondent george madden public solicitor

WJ & EM Campbell v. Chief Executive, Department of Natural Resources [1998] QLC 46 (6 May 1998).txt

land court brisbane 6 may 1998 determination unimproved value logan city council av97 205 wj em campbell v chief executive department natural resource e c n appeal lie determination chief executive unimproved value 288 000 40 000 per hectare two adjoining pa rcels vacant land situated chamber flat road logan city parcel particularly described lot 10 11 rp 95718 parish mackenzie contain area 7 198 hectare land zoned rural residential provision logan city town planning scheme designated rural residential strategic town pl allowing subdivision lot minimum size one hectare relevant date determination unimproved value 1 october 1996 appellant contend within notice appeal unimproved value 226 500 william john campbell furnished evidence support ground appeal based relativity applied unimproved va lues lot adjoining side subject land relevant date detail lot 9 4 082 hectare unimproved value 132 000 32 300 per hectare lot 12 4 082 hectare unimproved value 132 000 32 300 per hectare mr campbell say adjoining lo t directly comparab le subject site frontage chamber flat road like topography mr campbell told u comparis lot improved dwelling house see reason valuation subject land much higher per hectare comparison block mr campbell told u history th e valuation subject lot comparison site 1991 subject land wa valued 32 600 per hectare lot 9 33 100 per hectare lot 12 30 600 per hectare year 1993 1995 subject land valued 24 300 per hectare lot 9 27 000 per hectare lot 12 23 300 per hectare 1996 subject land valued 48 600 per hectare lot 9 10 2 valued 32 300 per hectare mr campbell contends reason relativity value per hectare changed much 1996 1997 valuation ot valuation subject land affected subdivisional potential mr campbell believe change subdivisional potential 1996 indeed throughout 1990s say throughout 1990s always possible subdivide lot area 1 hectare lot mr campbell believe subject lot valued higher rate per hectare relevant date lot 9 12 mr campbell commented course evidence basic sale relied upon chief executive valuation comparable different location valuation appeal made gistered departmental valuer william john crothers mr crothers explained valued subject land land park ridge area within city logan firstly 1 ja nuary 1996 relevant date valuation also 1 october 1996 valuation felt 1 january 1996 valuation valuation lacking relativity particularly larger bl ocks changed valuation relativity valuation perhaps explains valuation subject land 1 january 1996 increased much valuation 350 000 appeal lower valuation 288 000 mr crothers opinion subject land potential subdivision one hectare lot considered king valuation since land vacant provision section 17 1 valuation land act 1944 application mr crothers describes nature ubject land inferior forest country reasonably level road falling gently rear mr crothers made valuation gard following sale evidence lot say potential subdivision sale 1 lot 6 rp 94215 parish mackenzie 4 286 hectare taylor lo 12 april 1995 256 000 analysed unimp roved value 206 000 48 000 per hectare applied unimproved value 189 000 44 000 per h ectare situation chamber flat road corner park ridge road mr crothers regard sale land bei ng inferior subject regard location similar regard size superior regard redevelopment subdivision considers overall sale property slightly superior subject land per hectare basis sale 2 lot 14 rp 82892 parish mackenzie 4 667 hectare chang others lai family trust 6 j une 1995 235 000 analysed unimproved value 215 000 46 000 per hectare applied unimproved value 196 000 42 000 per hectare situation chamber flat road 3 mr crothers considers sale land inferior location compared subject land point smaller considers sale site overall superior subject land per hectare basis economy size sale 3 lot 18 rp 135029 parish mackenzi e 4 862 hectare hinton ngan ha bui another 12 december 1996 195 000 analysed unimproved value 190 000 39 000 per hectare applied unimp roved value 190 000 situation koplick road mr crothers commented evidence land also frontage beaumont road along council taken access restricti strip say council preference event subdivision land frontage koplick beaumont road access subdivided lot beaumont road mr crothe r regard sale land inferior subject land regard location also inferior per hectare basis mr crothers believe valuation lot 9 12 incorrect valued site exclusively u ed single dwelling house purpose provision section 17 1 valuation land act provides valuation potential subdivision must taken account latter contention agree mr crothers told u ubdivisional activity area date valuation since subject land vacant doubt provision section 17 1 valuation land act cannot applied valuation land valued highest best use way level value established relation market land similar potential sale evidence provided mr crothers appreciate appellant conten tion subject valuation odds neighbouring lot comparison made lose significance circumstance surrounding valuation assessment adjoining lot since ground appeal narrowly drawn encompass ground relativity evidence court market value subject land basis highest best use potential subdivision 1 hectare lot provided mr crothers cannot hold onus resting upon appellant accordance provision valu ation land act discharged addition cannot disputed comparable lot land sense adjoining lot 9 12 cannot find location sale lot relied upon mr crothers remote render non comparable proceed ing formal determination add long established court reference percentage increase decrease matter value year task hand ass unimproved value land within local authority area wo rthwhile ground appeal 4 determined unimproved value given par cel land specific relevant date best weighed relation analysed sale evidence appeal dismissed unimproved value lot 10 11 rp 95718 parish mackenzie determined chief executive sum 288 000 basis subject land highest best use affirmed ch carter member land court

Lazinski v QBSA [2009] QCCTB 215 (23 September 2009).txt

lazinski v qbsa 2009 qcctb 215 23 september 2009 last updated 22 october 2009_______________________commercial consumertribunalcitation lazinski v queensland building service authority 2009 cct qr248 08parties lazinski janvqueensland building service authorityapplication number qr248 08delivered 23 september 2009delivered brisbanehearing date 17 july 2009decision mr k barlowcatchwords review application direction rectify whether applicant person direction rectify may issued contract manager whether building contractor whether new paragraph act altered application applicant queensland building service authority act1991 section 72 1 72 5 b 72 5 bb 72 5 bd 72 5 c 72 5 72 5 f 72 11 representation solicitor applicant mr lazinskirespondent mr n morgandecision category classification cnumber paragraph 54reasons decisionintroductionthis application review decision authority issue direction rectify applicant mr jan lazinski pursuant section 72 thequeensland building service authority act1991 act direction rectify issued 3 september 2008 following receipt complaint made 11 july 2008 direction concerned leaking shower one unit building complex completed june 2003 complainant purchased unit october 2003 mr lazinski time licensed builder entered contract owner land building constructed construction management contract conforming master builder association standard form contract cm2 1998 contract provided mr lazinski engaged construction manager act agent principal providing construction management service stated contract clause 3 4 5 contract set construction manager duty divided pre construction duty pre ordering material duty construction pre construction duty included consult make recommendation project team construction purpose selection material availability building technique equipment construction technique develop preliminary construction program consultation member project team examine suitability expertise potential trade contractor assist preparation invitation tender document evaluate tender recommend action letting trade contract construction manager construction duty included organise commencement work agreed time consultation principal co ordinate construction work trade contractor use every reasonable endeavour achieve final completion accordance term contract duty included participate selection trade contractor enter trade contract supply agreement trade contractor supplier agent disclosed principal co ordinate work trade contractor monitor work trade contractor order reasonably satisfied work performed accordance requirement trade contract clause 7 contract provided principal warranted construction manager incur liability among thing failure trade contractor carry work accordance trade contract construction mean method technique sequence procedure employed trade contractor performance trade contract clause 12 contract principal agreed solely liable indemnify construction manager respect legal liability loss claim proceeding whatsoever arising legislation common law insofar loss damage property arises course reason carrying completion work clause 15 contract provided construction manager paid fee calculated percentage cost work relevant percentage specified schedule contract 3 pursuant construction management contract mr lazinski proceeded manage construction building included construction shower unit including shower subject complaint authority respect shower mr lazinski obtained installer waterproofing aqua shield waterproofing installation certificate confirming waterproofing completed accordance specification applicant purchased property first noticed shower leaking mid 2005 complaint made body corporate arranged someone attend applied silicone frame screen shower appeared fix leak december 2007 applicant granddaughter living premise time discovered another leak different place first leak matter taken body corporate period time delayed responding complaint ultimately body corporate insurer refused repair leak light refusal complaint made authority 16 july 2008 julie anne baker daughter applicant gave evidence two leak damage caused apparently caused according second leak evidence leak damaged vanity ensuite bathroom shower located caused damage flooring adjoining dining room issuesthe applicant challenged issue direction rectify large number ground essence following mr lazinski builder person carried building work therefore person authority may issue direction rectify accordance section 72 1 act b rather construction manager section 72 5 amended 2007 specifically include person subsection 1 taken person carried building work construction manager engaged construction management contract provide building work service building work amended effect clear construction manager previously included within category person carried building work subsection 72 5 amendment retrospective effect c mr lazinski fall within purview subsection 72 11 b person providing administration service management service supervisory service work carry service respect building work rather akin superintendent building work held superintendent building work fall within purview identically worded section act 1 waterproofing shower undertaken aqua shield waterproofing mr lazinski mr lazinski neither carried building work respect shower undertook advisory supervisory service respect building work e event defect became apparent mid 2005 alternatively december 2007 complaint made well outside period set respondent guideline namely three month defect became apparent category 1 defect six month building work completed respect category 2 defect category 1 defect includes leak shower presumably category 1 defect f would unfair direct mr lazinski rectify waterproofing therefore direction ought issued subsection 72 14 act applied direction rectify issued subcontractor carrying waterproofing work rather failure waterproofing caused leak unfairness derives fact mr lazinski undertake work suffer financial hardship forced pay contractor instead position rectify alleged defect risk issued direction rectify priced contract principal g notice rectify defective clearly state building work required rectification rather simply said builder required rectify water membrane failure causing damaged timber parquetry floor bedroom 1 ensuite shower h damage timber flooring vanity caused proved caused leaking shower could caused something else leaking damaged pipe respondent ultimately relied upon four paragraph section 72 course hearing mr morgan appeared respondent specifically stated relied paragraph 72 5 bb bd paragraph provide 5 subsection 1 person carried building work taken include bb licensed contractor whose name stated insurance notification form building work bd licensed contractor whose license number stated insurance notification form building work also appears course evidence cross examination issue whether fact defective building work however submission effect made behalf mr lazinski behalf mr morgan said submission dispute shower leak even mr lazinski say caused failure waterproofing membrane defective building work evidence damage caused membrane building work completed whether defect arises defective material damage caused course installation shower installation otherwise building work immaterial even mr lazinski said evidence waterproofing shower last twenty year view real issue seriously argued defective building work question whether mr lazinski made responsible submission towards end hearing mr morgan progressively relied upon paragraph section 72 namely paragraph 72 5 namely mr lazinski licensed contractor whose pin used putting place building work insurance statutory insurance scheme b paragraph 72 5 c mr lazinski building contractor building work carried consideration issuesrespondent first three groundsi deal short compass first three ground relied upon respondent namely paragraph 72 5 bb bd order prove applicant person falling within paragraph 72 5 bb bd necessary authority demonstrate mr lazinski licensed contractor whose name whose licence number stated insurance notification form building work mr morgan seems decision maker m burslem relied upon certificate insurance issued authority mr lazinski named mr lazinski licence number contractor 2 however term insurance notification form defined schedule 2 act mean form approved authority upon information building workis submitted authorityfor insuring work statutory insurance scheme emphasis added clear reference document presumably prepared proposed insured submitted authority purpose obtaining certificate insurance certificate insurance form submitted authority fact issued authority insurance notification form authority therefore failed prove essential element paragraph act namely mr lazinski name licence number stated insurance notification form building work order demonstrate mr lazinski fall within paragraph 72 5 act authority must prove pin issued mr lazinski used putting place building work insurance statutory insurance scheme course evidence following exchange occurred mr lazinski representative mr lazinski m burslem mr lazinski evidence included receipt sort evidence transaction like insurance paid mr lazinski personally evidence asking whether evidence personally take insurance done head office phone decision maker need satisfy document mean yes paid insurance proof payment would system saying asking evidence thank insurance certificate would issued respect member let m burslem finish answer insurance certificate produced like builder pay produced mr lazinski possible measure place phone system recall came place asked question licence number pin number enter system able get pay insurance remember came force remember came possible someone else paid memory 2000 recall sorry area possible someone else paid applicant behalf licence number asking possible may possible someone pay provided pin number evidence indicates m burslem assumed pin issued mr lazinski order obtain insurance particular building work mr lazinski someone behalf would use pin however said area section 34a act provides following respect pin 1 authority may give licensee confidential personal identification number pin use licensee licensee dealing authority 2 authority give pin licensee authority must also advise licensee authority requirement licensee keeping use pin section indicate pin must issued licensee occasion section paragraph 72 5 provide pin must used putting place insurance statutory insurance scheme authority proved pin given mr lazinski used putting place insurance respect building work therefore failed demonstrate mr lazinski fall within paragraph section 72 leaf authority rely upon paragraph 72 5 c issue determination respect whether mr lazinski building contractor building work carried mr morgan expressly rely upon subsection 72 11 support submission mr lazinski person carried building work rather mr morgan relied upon judgment judge kimmins inashmore construction v queensland building service authority unreported 1 february 1993 submission carry mean work causing done however subsection 11 clearly affect construction paragraph 5 c tribunal must take account subsection provides purpose subsection 5 c person carry building work whether person carry personally ii directly indirectly cause carried b person taken carry building work person provides advisory service administration service management service supervisory service work paragraph 72 5 c encompasses two concept first building contractor andsecondly building work carried first question address therefore whether mr lazinski building contractor term defined schedule 2 act meaning person carry business consists includes carrying building work includes subcontractor carry building work building contractor mr lazinski carry business consisted included carrying building work doubt mr lazinski agreed one occasion act construction manager pursuant construction management contract given evidence exhibit jl 001 affidavit filed proceeding relied upon paid work pursuant contract time licence perform building work qualified engineer holding bachelor science mechanical engineering master science thermodynamics fluid mechanic know whether mr lazinski habit carrying work construction manager otherwise carrying building work know whether carried business consisted included carrying building work one might suspect say evidence chief asked cross examination question directed issue circumstance cannot satisfied mr lazinski building contractor defined paragraph 72 5 c applies building contractor building work carried cannot satisfied applies conclusion direction rectifyin circumstance cannot satisfied mr lazinski person direction rectify may properly issued authority therefore propose set aside decision issue direction rectify issue raised applicantin light conclusion may strictly unnecessary consider issue raised submission made mr lazinski applicant behalf however propose return matter authority reconsideration shall briefly consider issue decision may take account finding matter clear defective building work although clear whether comprised defective work product installation membrane later work damaged membrane defective work discovered december 2007 earlier leak may may related later leak may caused something else satisfied particular defective work discovered second occasion short delay discovery making claim explained delay caused body corporate insurer satisfied damage parquetry floor dining room caused defect building work involving shower thus extent notice rectify referred damage flooring invalid although damage floor necessarily result defective building work damage vanity bathroom therefore direction rectify could include direction rectify damage mr lazinski supervised work arranged done coordinated trade contractor satisfied appeared done correctly supervised contractor closely others example although pain say consider necessary supervise closely people installed membrane shower gave evidence precisely supervised tiler shower ensure waterproof membrane protected agree mr lazinski submission position superintendent building contract superintendent review act arbiter question arising construction work mr lazinski involved arranging work least general sense supervising indeed said gave evidence precisely supervised tiler shower ensure waterproof membrane protected view work mr lazinski undertook contract manager included least management supervisory service work work encompassed description paragraph 72 11 b act later addition act paragraph 72 5 f included construction manager engaged construction management contract provide building work service building work seems clarification section 72 intended extend person rather addition person class covered subsection 1 construction manager almost inevitably would undertaking work within parameter paragraph 72 11 b unclear responsible damaged membrane thing aside would unfair issue direction rectify mr lazinski rather trade contractor engaged construct shower mr lazinski responsible principal monitoring work trade contractor furthermore remains entitled indemnity principal cost may incur engaging contractor rectify defective work thus opinion mr lazinski proved building contractor defined notice rectify limited rectification leaking shower damage vanity caused leak notice rectify could validly directed circumstance propose return matter authority determine whether mr lazinski fact carrying business involving carrying building work circumstance whether issue fresh direction rectify mr lazinski direction limited rectifying leaking shower damage vanity unit caused leak costsin written submission behalf applicant mr lazinski sought order authority pay applicant cost incidental application standard basis assessment cost assessed ordinary position tribunal party pay cost unless interest justice require otherwise commercial consumer tribunal act2003 section 70 list typical factor tribunal may regard deciding whether award cost proceeding set subsection 71 4 list exhaustive however subsection 71 5 make clear party proceeding entitled cost merely party beneficiary order tribunal party legally represented proceeding might said applicant succeeded proceeding technicality whether ultimately lead applicant becoming liable rectify defective building work matter guess hand respondent adduce sufficient evidence prove even basic case answer applicant criticism balance view insufficient ground applicant awarded cost proceeding therefore decline make order party cost ordersthe decision respondent issue applicant direction rectify defective building work pursuant section 72 thequeensland building service authority act1999 set aside matter returned authority reconsider whether issue direction rectify applicant person ______________________________mr k barlowmembercommercial consumer tribunal 1 puerto galera pty ltd v jm kelly project builder pty ltd 2008 qsc 356 chestermanj 2 certificate exhibit jlb 1 statement m burslem

Carworks Australia Pty Ltd v Ballarat CC [2005] VCAT 1233 (23 June 2005).txt

carworks australia pty ltd v ballarat cc 2005 vcat 1233 23 june 2005 last updated 28 june 2005victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p1164 2005permit application plp 2004 563catchwordsapplicantcarworks australia pty ltdresponsible authorityballarat city councilrespondentg g barnessubject land1051 1053 howitt streetwendouree vic 3355where held55 king street melbournebeforehelen gibson deputy presidenthearing typehearingdate hearing10 june 2005date order23 june 2005citation 2005 vcat 1233order1 decision responsible authority set aside tribunal order plan endorsed planning permit plp 2004 563 altered changing wall height shown 4 metre 5 metre helen gibsondeputy presidentappearances applicantmr p connor counsel instructed scanlon carroll called witness james iles town planner tgm group pty ltdfor responsible authoritymr andrew bishop town plannerfor respondentsmr graeme barnesreasons given orally hearing subsequently revised 1 application p1164 2005 made pursuant tosection 149of theplanning environment act 1987in respect refusal responsible authority consent alteration development authorised planning permit plp 2004 563 planning permit authorised construction garage endorsed plan show wall height 4 metre construction commenced wall height structure built 5 metre 4 metre per endorsed plan permit applicant applied amendment plan regularise built wall height council considered application undersection 62 3 act applied test insection 73 request amend plan refused basis amended plan considered generally accordance plan submitted application amendment plan undersection 62 3 consistent permit issued 2 garage authorised permit fact large shed located rear subject site set back 3 metre rear boundary abuts ballarat ararat railway reserve subject site used car wash garage located mixed use zone railway reserve 25 metre wide beyond rear yard residential property fronting gregory street back wall dwelling order 75 80 metre shed 3 mr barnes resident gregory street concerned fact able see shed backyard opposes request increase wall height 1 metre whilst declined join party proceeding undersection 60of thevictorian civil administrative tribunal act 1998 allowed make submission hearing 4 view appears confusion part responsible authority regarding correct test applied assessing whether grant consent application change development made secondary consent provision found condition 1 permit provides use development shown endorsed plan must altered without written consent responsible authority 5 justice morris said recent case of155 domain road pty ltd v melbourne city council 1 power grant secondary consent depend upon satisfying criterion contained insection 62 3 act 6 recent case ofwestpoint corporation pty ltd v moreland city council 2 tribunal reaffirmed ongoing relevance role secondary consent contained permit condition notwithstanding recent introduction new division 1a topart 4of act relating amendment permit tribunal said inwestpoint corporation 36 important distinction two mechanism division 1a permit altered whereas secondary consent provision use development allowed permit particular aspect use development altered consenting change secondary consent provision possible go beyond permit allows step outside permit requires hand may possible something le permit allows unless requirement contrary permit case amendment permit would necessary division 1a 7 secondary consent important role play planning system need sufficiently flexible accommodate sort change likely occur use development time development proposal implemented 3 8 secondary consent provision within permit condition enables use development authorised permit specific aspect altered within certain parameter westpoint corporationsummarised parameter follows 38 summary deciding whether use development may altered secondary consent provision permit scale change relevant per se change need simply minor allowable secondary consent provision provided meet following requirement result transformation proposal authorise something primary consent required planning scheme consequence regard purpose planning control permit granted contrary specific requirement distinct authorisation within permit cannot altered consent 9 considered requirement context current case reached following conclusion 10 increase wall height overall increase height 1 metre result transformation development still development garage location footprint elevation changed mere fact height changed result transformation something much greater would needed case 11 increasing height 1 metre authorise something primary consent required planning scheme permit granted development garage altered 12 increase height 1 metre consequence regard purpose planning control permit granted permit granted building work connection existingsection 2to use mixed use zone whilst permit commercial building commercial building must expected within zone even large commercial building 3 metre rear set back reasonable circumstance regard nature zone purpose especially regard site abuttal railway reserve substantial distance dwelling fronting gregory street 13 mr barnes concerned notwithstanding distance building could still seen distance however view building substantially screened existing tree mr barnes property lie within power increase screening effect planting tree something seen mean constitutes detriment amenity view regard distance zoning subject land overall appearance shed nothing building make perfectly appropriate location setting additional 1 metre wall height make difference context seen distance property fronting gregory street additional 1 metre height neither 14 regard purpose planning control permit granted apart issue amenity area nothing decision guideline applicable development mixed use zone considered particular relevant term amenity area find change height considered consequence 15 whilst mr barnes suggested additional 1 metre height would increase noise reflected passing train place weight upon assertion evidence support contention even could established building effect term increase reflected noise train doubt additional 1 metre height would make discernable difference 16 finally find specific requirement permit would preclude alteration development word condition say wall height must 4 metre therefore reason change development proposed permitted 17 decision decision responsible authority set aside plan endorsed permit changed show wall height 5 metre helen gibsondeputy president 1 2005 vcat 637at para 15 2 2005 vcat 1049 3 westpoint corporation pty ltd v moreland cc 2005 vcat 1049para 33

Goldfields Projects Pty Ltd v Brisbane Property Services Ltd Pty & Alzamora [2001] QBT 45 (28 March 2001).txt

goldfield project pty ltd v brisbane property service ltd pty alzamora 2001 qbt 45 28 march 2001 last updated 4 june 2001queensland building tribunaldate 28 march 2001application b221 00applicant goldfield project pty ltdrespondent brisbane property service ltd ptyand edwardo alzamoradate hearing 28 february 2001reference 2001 qbt 45 28 march 2001domestic building disputefurther reason decision 1 tribunal decision matter published 8 march 2001 subsequent hearing matter 28 february 2001 2 time preparation reason failed regard order made 28 february 2001 permitted party opportunity make written submission 9 march 2001 party commenced conclusion hearing indeed course evidence 28 february 2001 make oral submission respective case submission reference made reason decision dated 8 march 2001 3 reason alerted applicant failed regard party written submission received tribunal subsequent publishing decision 8 march 2001 submission party received tribunal 9 march 2001 4 consider proper circumstance open case permit submission considered however find basis opening case applicant correspondence tribunal 22 march 2001 seek certain part tribunal decision 8 march 2001 affirmed part part take issue matter decided 5 propose course opening consider requested applicant hear evidence upon subject matter heard hearing indeed seems contemplation applicant hear evidence view presumably reaching different view specifically find proper basis opening case 6 applicant seek relief pursuant section 87 thequeensland building tribunal act 2000 correcting mistakes87 1 tribunal may correct decision made decision contains clerical mistake b error arising accidental slip omission c material miscalculation figure material mistake description person thing matter referred decision defect form 2 correction may made tribunal initiative b written application party proceeding decision relates 3 application section must made within 14 day making decision b must based something mentioned subsection 1 sufficient significance influenced outcome proceeding 4 tribunal need conduct hearing application 5 correction may made member made decision chairperson another member b must made evidence placed tribunal hearing proceeding decision made 6 making application section stop order decision taking effect according term 7 find matter complained applicant fall within meaning section 87 1 b c short matter complained consist clerical mistake accidental slip omission miscalculation figure misdescription matter complained applicant represent finding contrary case put applicant 8 written submission party dated 9 march 2001 distinct similarity made hearing main submission consist reiteration evidence lead hearing together observation comment designed discredit case opposing party particular tribunal accepted evidence lead part applicant case reason expressed reason decision 8 march 2001 9 opened case view considering submission delivered accordance order 28 february 2001 confirm tribunal order 8 march 2001 without amendment mr c roney deputy chairqueensland building tribunalgjue decision 2000 dec domestic b221 00 furtherd doc

Lenjade Pty Limited v Holroyd City Council [2009] NSWLEC 1002 (7 January 2009).txt

lenjade pty limited v holroyd city council 2009 nswlec 1002 7 january 2009 lenjade pty limited v holroyd city council 2009 nswlec 1002 7 january 2009 last updated 6 february 2009new south wale land environment courtcitation lenjade pty limited v holroyd city council 2009 nswlec 1002parties applicantlenjade pty limitedrespondentholroyd city councilfile number 10818 2008catchwords development application development control plan carwash convenience store cafe service station car parking signage hour operation desired future character legislation cited environmental planning assessment act 1979holroyd local environmental plan 1991development control plan 45 merrylands town centre precinctholroyd development control plan 2007coram bly cdates hearing 20 11 200 21 11 2008judgment date 7 january 2009legal representativesapplicantmr seton solicitorof marsden law grouprespondentmr sahade barristerjudgment land andenvironment courtof new south walesbly c7 january 200910818 2008 lenjade pty limited v holroyd city counciljudgmentintroduction1 appeal unders 97of theenvironmental planning assessment act 1979is holroyd city council refusal development application alteration addition existing disused service station 195 pitt street merrylands lot 60 61 62 dp 7916 provide newcrystal carwash company facility convenience store cafe fuel dispenser car parking associated signage anticipated daily throughput carwash 70 150 vehicle 2 former service station building include automotive workshop automatic car wash facility site benefit existing development consent da 2004 938 demolition service station removal fuel storage tank consent partially acted upon removal fuel storage tank 3 situated southwest corner pitt street neil street commercial northern part merrylands town centre almost square site frontage 46 total area 2 090 sq adjoining site south stockland mall shopping centre currently undergoing significant alteration addition opposite site pitt street number automotive type sale service commercial land us adjoining site west three storey residential flat building remainder neil street predominantly developed three storey residential flat building several detached dwelling house 4 vacant site opposite side neil street subject undetermined development application da 2007 815 construction eight storey mixed use development council officer reported upon application recommended conditional approval planning controls5 site included 3 general business zone pursuant theholroyd local environmental plan 1991and zone proposal permissible inominate use development consent clause 9 3 lep requires consent shall granted unless consent authority opinion development would consistent objective zone objective 3 zone provide foster economic well existing proposed business b permit non commercial development within zone development compatible commercial character locality c encourage development expansion business activity contribute economic growth employment opportunity within city holroyd ensure adequate provision car parking facility vicinity commercial centre e minimise conflict pedestrian vehicular movement system within commercial area 6 relevant appeal mixed use development defined according development control table 3 zone prohibited however cl 36 reference schedule 4 lep effectively provides mixed use development permissible consent 3 zone clause 37a lep deal development within merrylands town centre subclause 2 requires relevantly applicable objective subclause 1 considered relevant objective 1 provision active town centre walking encouraged requiring future development activate street quality design provide grade pedestrian connectivity 1 e facilitation mixed use development addition retail commercial permitted development within town centre comprises retail commercial us grade ii residential commercial development development 1 j proposed development detract potential future economic development within town centre land adjoining town centre ii hinder attainment mixed use development town centre 1 proposed redevelopment town centre provides opportunity attract clustering commercial office professional suite close train station 7 also applicable thedevelopment control plan 45 merrylands town centre precinctandthe holroyd development control plan 2007 8 part g dcp 2007 contains site specific control merrylands town centre commercial heart city holroyd includes site themerrylands town centre precinct inpart 2 dcp approach development retail locality within town centre facilitate growth retail commercial development ancillary residential development enabling flexible mixed use development building address street frontage public domain maintaining building edge two corner site intersection neil pitt street particularly identified ascornersites need emphasise pitt street entry town centre seven storey corner building facilitate well designed mixed use development within town centre visual emphasis key corner sites9part 3contains vehicular access requirement building envelope control corner site pitt neil street identified asr11 according dcp future development block important providing sense entry merrylands town centre also transition residential area core retail locality development along street must create built edge well provide continuous retail activity addressing street maintain character locality 10 associated diagram show proposed multi storey built form corner exhibit symmetry extend 3m street alignment 11part 4 5of dcp deal interim development expecting development application associated existing us continue received acceptable design outcome application minor development e g alteration addition mostly merit assessed however sic must comply vision locality statement objective outlined inpart 2of dcp design solution development associated existing us must restrict prevent site within merrylands town centre area achieving development potential prescribed dcp 12 associated objective inpart 4 5 1are enable ongoing development work town centre associated existing us without compromising implementation longer term vision objective outlined dcp permit reasonable amount interim development maintaining viability implementing plan attractive future option 13 associated control inpart 4 5 2are minor development associated existing building including limited alteration addition change use outdoor dining subdivision signage must restrict prohibit adjoining land owner developing site accordance dcp development ensure activation streetscape high urban design outcomesadvertising council decision14 application advertised submission received notification period 15 9 may 2008 delegated authority council refused application reason essentially follows non compliance various provision lep including objective 3 zone merrylands town centrenon compliance contribution plan insufficient information relation waste disposal recycling non compliance themerrylands town centre dcp 16 according statement fact contention council contends proposed development refused unacceptable far insufficient site car parking space provided unacceptable impact traffic condition merrylands town centre intersection upgrading work required conducted consequence development accordance summary work program within themerrylands town centre precinctsection 94contribution plan 2006cannot facilitated part proposal unacceptable term built form design associated impact existing desired future character development area operational hour service station convenience store component development 6 midnight seven day week contrary control provided operation commercial use within block 11 cl 4 4 2 part g dcp2007 character purpose serving motor vehicle orientated use considered support future reduction reliance private car travel traffic merrylands town centre proposed advertising signage unacceptable presentation streetscape constitute visual deterrent passing motorist insufficient information provided enable proper assessment development application term acoustical impact adjoining surrounding property waste control construction operation expert evidence17 behalf respondent council expert evidence provided mr shahi traffic engineeringmr p anzellotti town planning18 behalf applicant expert evidence provided mr j coady traffic engineering town planningmr george town planninginsufficient information19 concern insufficient information largely resolved provision additional material including acoustic report acceptance certain condition consent car parking20 tendered plan show total five car parking space provided including area car positioned washing fuelling three parking space provided tandem formation rear site set aside staff two space near north east corner site available visitor one space allocated disabled car space 21 according statement environmental effect workforce car wash cafe convenience store service station vary minimum 8 person quiet time tuesday thursday 14 person busiest weekend period car wash account majority workforce ranging 5 10 person regard statement suggests young student live local area tend drive car site based company experience workforce parking demand generated proposed car wash facility unlikely exceed 2 3 parking space 22 respondent contends proposed development unacceptable provision site car parking space insufficient regard reference made objective cl 5 1 4 dcp provides required amount site parking provided every site similarly objective 3 zone requires adequate provision car parking facility 23 joint traffic engineering report mr shahi explained based theroads traffic authority guide traffic generating development guideline rate 5 space per 100 sq 4 2 car parking space required convenience store figure need rounded hence 5 car parking space required mr coady believe rate applied based rta survey 1990 much larger service station convenience store 273 sq 117 sq compared proposal 84sq much greater focus convenience store operation service station comparison proposal 24 cafe 84 sq mr shahi applied guideline requirement 15 car parking space per 100 sq gross floor area calculating 13 car space required however acknowledging mostly car wash patron would use cafe car wash area accommodate 13 vehicle parking requirement customer cafe satisfied similarly mr coady believe guideline strictly applied almost customer cafe car wash customer context pointed area allocated various drop vacuuming car wash drying polishing pickup area accommodate 30 vehicle 25 plainly need provide parking space car wash customer mr shahi concerned ensure sufficient number car space staff car wash cafe provided regard referred survey corner counter traffic solution pty ltd similar car wash cafe mascot say reveals parking rate one space per two employee would appropriate taking also account 50 reduction due close proximity public transport 26 response mr coady reviewed survey concluded capable interpreted indicate workforce parking requirement one parking space per employee also referred letter traffic solution response question asked mr coady advises survey purpose record information relation peak traffic generation peak parking demand number people cafe site survey undertaken ascertain staff parking requirement hence result differentiate staff member patron examination corner counter survey data confirms case thus agree relied 27 instead mr coady refers three travel characteristic survey carried applicant request similarcrystal carwashcafes chatswood mosman rose bay survey reveal number car driver carwash employee premise generally one employee varying workforce 40 person basis contends provision two parking space carwash workforce sufficient 28 usefulness threecrystal carwashsurveys questioned different reason firstly one three survey facility rose bay involves car wash together convenience store service station hence comparable proposal second survey conducted applicant subject independent verification whilst mr coady comfortable result survey mr shahi 29 uncomfortable reliability result survey particularly surprised example 12 occasion 20 40 carwash worker respective premise one worker travelled car notwithstanding contention casual worker likely student without car seems absence relevantly applicable standard car wash facility way reasonable car parking requirement determined would conduct independent survey range similar facility surveyed facility part chain 30 surprised 40 car wash worker peak time type car wash facility context note explanation relates 5 10 car wash personnel referred statement environmental effect 31 support proposed car parking arrangement mr coady also refers topart 2 10 1of dcp45 contains objective decreasing car usage within town centre reducing site vehicular parking requirement new development encouragement use public transport also relevant context cl 37a 1 b lep seek promote use public transport cycling together reduction reliance private car travel however satisfied principle circumstance utilised set aside reasonable parking demand would likely generated development 32 thing considered persuaded applicant evidence five car parking space would sufficient meet reasonable staff visitor parking need car wash convenience store service station light requirement planning control appropriate provision site parking also three staff parking space relatively poor usability taking account location rear site tandem formation two visitor parking space may well sufficient purpose although note use one space limited disabled driver mean driver one visitor car space available desired future character33 issue desired future character involves unacceptability proposal term built form design associated impact existing desired future character development area according mr anzellotti proposal would rejection planning initiative council envisages merrylands town centre contrary vision objective themerrylands town centre precinct dcpand objective cl 37 lep 34 quoted objective provide active pedestrianised town centre containing range commercial us including mixed use development development detract future economic development similarly approach dcp2007 facilitate growth retail commercial development ancillary residential development enabling flexible mixed use development building address street frontage maintain building edge 35 particularly two corner site intersection neil pitt street identified asr11 cornersitesthat developed well designed multi storey mixed use development emphasis transition residential area pitt street entry town centre despite application associated existing us anticipated dealt merit taking account requirement dcp subject development restricting preventing site adjoining site achieving development potential 36 according mr anzellotti proposal fails respond dcp significance site essentially consider building signage appropriate representation visually significant site entry point merrylands town centre also reactivate streetscape inappropriate significant development site compared dcp redevelopment strategy recognizing existing consent nevertheless argued retention reuse existing building would comprise major refurbishment significant intensification would shortsighted would make implausible redevelopment site mixed use development desired dcp additional site work demolition remediation would required eventually occur 37 mr george disagreed mr anzellotti explaining service station car wash could established site accordance current consent without need development application hence essence proposal involves modification upgrading development ie service station car wash could take place without need consent effectively continuation long established land use provides service area inhibit redevelopment land 38 also explained proposal preclude anticipated mixed use development time economic circumstance allow proposed development represent significant investment building infrastructure might otherwise preclude delay change whilst questioning council right present vision future planning control control never static function determine specific development outcome site proposed prohibited refusal would contribute attainment council planning goal 39 opinion proposed development site would much previous use existing development consent reactivated also dispute proposal responsive provision dcp anticipate development site multi storey mixed use building time future however dcp anticipates existing us approved interim development regard agree mr george proposal fall within category whilst comply mixed use building vision dcp would degree restrict prevent site achieving potential accept circumstance matter determinative application 40 thus agree mr george development represents reasonable form interim development overdevelop site light form development anticipated planning control thus seriously affect viability therefore application refused basis motor vehicle usage41 motor vehicle usage issue involves proposed development character purpose serving motor vehicle orientated use support future reduction reliance private car travel traffic merrylands town centre 42 regard according mr anzellotti proposal fails respond objective inpart 2 10 1of dcp45 seek achieve reduced car usage within town centre encouragement use public transport also relevant cl 37a 1 b lep seek promote use public transport cycling together reduction reliance private car travel location vehicle orientated service attract vehicle town centre would inappropriate character considering residential nature neil street taking account likely queuing vehicle including across footpath associated traffic congestion 43 mr george said proposed use would occur unless service provide demand location adjacent town centre specious argue use promote car use rather provide service existing traffic 44 mr shahi pointed projected development within town centre including neil street precinct anticipated generate significant additional traffic regard mr coady agreed location site good proposed development additional traffic generated proposed development would minimal particularly mr coady explained proposal replace similar previous development site also service station car wash attract patronage existing traffic flow road presently serving site 45 plainly proposal different character nearby residential development likely future character site corner site opposite anticipated dcp conversely character nearby automotive type us moreover whilst residential development neil street site zoned commercial development wherein proposal permissible mixed use development encouraged circumstance accept proposal traffic attracting character make unacceptable also taking account proposal predominantly service existing traffic generate minimal additional traffic flow satisfied reason refuse application advertising signage46 issue advertising signage comprises concern proposed signage unacceptable presentation streetscape constitute visual deterrent passing motorist 21 different sign differing size illumination configuration including parapet awning wall pylon sign relate variously car wash cafe service station convenience store pylon sign 6 x 2 4 parapet sign 6 8 7 2 x 1 3 1 57 47part 5 3 8of dcp deal signage acknowledges sign play significant part indicating retail commercial us creating lively retail strip signage integrated design new building compliment built form character town centre dominate detract existing architecture relevantly applicable control dealing number size sign 48 according mr anzellotti scale number nature signage provided would result visual clutter would sympathetic surrounding adjoining development signage together proposed corporate colour scheme represents attempt drown intersection surround crystal carwash brand name describes big bang theory large signage consequence associated objective dcp properly taken account 49 response mr george said proposed signage normal expected associated intended us permissible zone hence signage proposed would contrary dcp taking account land use history site signage would represent sense visual surprise create material amenity impact 50 extent signage question subjective consideration regard agree mr anzellotti scale number nature signage together corporate colour scheme would excessive would inappropriately dominate important corner site whilst concluded development satisfactory despite character different anticipated dcp excuse need appropriately sensitive emerging future character required bypart 4 5of dcp high urban design outcome required opinion careful approach number size shape dominance sign manner integrated building necessary hour operation51 main concern regarding operational hour proposed development particularly service station convenience store mainly involves possible impact nearby residential development neil street including neighbouring three storey residential flat building 52 applicable control inpart 4 4 2of dcp commercial us adjacent residential zone set hour operation 6 9 pm monday saturday 7 8 pm sunday proposed operating hour 6 midnight seven day week significantly exceed requirement 53 mr anzellotti concerned surrounding resident would adversely affected noise activity associated service station convenience store generally 9 pm midnight protect resident amenity hour operation set dcp applied also concerned proposed extended hour operation might result antisocial behaviour 54 believe mr anzellotti generally correct giving appropriate weight requirement dcp would imposed requirement conclusions55 referred cl 9 3 lep effectively requires consistency objective 3 zone including economic well business economic growth employment opportunity adequate provision car parking minimisation conflict pedestrian vehicular movement similarly cl 37a requires consideration pedestrian need facilitation mixed use development economic development 56 regard generally agree mr george conclusion statement environmental effect inconsistency proposal relevant objective particular effective continuation long standing land use preclude future mixed use development occurring 57 however result insufficiency site car parking inappropriate response urban design consideration mainly involving signage decided proposal present form approved orders1 appeal dismissed 2 development application alteration addition existing disused service station 195 pitt street merrylands lot 60 61 62 dp 7916 provide new car wash facility convenience store cafe fuel dispenser car parking associated signage determined refusal 3 exhibit f k retained___________________bly ccommissioner courtajl

UML [2015] VMHT 97 (3 June 2015).txt

uml 2015 vmht 97 3 june 2015 last updated 9 october 2015this edited version tribunal statement reason issued pursuant section 198 themental health act 2014 patient person attending hearing de identified allocated randomly selected pseudonym privacy reason detail may lead identification patient may also omitted tribunal omission detail affect decision reason decision statement reason 2015 vmht 971 detail hearingon 18 april 2015 authorised psychiatrist varied uml community treatment order inpatient treatment order tribunal conducted hearing determine whether tribunal make treatment order whether uml become voluntary patient uml current treatment order due expire 7 july 2015 time hearing treated werribee mercy inpatient service werribee hearing held video link werribee mercy inpatient service tribunal 13 may 2015 division tribunal conducting hearing comprised legal member m joan dwyerpsychiatrist member dr peter mcardlecommunity member m lynne ruggieroattending hearing umlms lisa smith uml legal representative victoria legal aid dr ap uml treating doctor registered psychiatric nursenursing student attended uml consent2 information provided tribunal hearingthe tribunal received following evidence hearing report uml compulsory treatment prepared dr ap dated 11 may 2015 report b recent clinical note uml clinical file c copy variation treatment order made 18 april 2015 oral evidence also provided uml dr ap statement reason intended detailed record material provided issue discussed hearing evidence accepted relied upon tribunal reach conclusion final determination identified part 4 3 issue considerationpursuant section 58 5 themental health act 2014 act tribunal must conduct hearing determine whether make treatment order revoke current inpatient treatment order tribunal satisfied treatment criterion section 5 act attached statement apply uml tribunal must make treatment order also decide length treatment order whether treatment community hospital tribunal satisfied treatment criterion section 5 apply uml tribunal must revoke current treatment order meaning becomes voluntary patient tribunal consideration issue must also conducted accordance thecharter human right responsibilitiesact 2006

Trojan Recruitment Group [2010] FWAA 6101 (10 August 2010).txt

trojan recruitment group 2010 fwaa 6101 10 august 2010 fair work australiadecisionfair work act 2009s 185 approval enterprise agreementtrojan recruitment group ag2010 9275 trojan workforce labour solution agreementmiscellaneouscommissioner cambridgesydney 10 august 2010application approval thetrojan workforce labour solution agreement 1 application made approval enterprise agreement known thetrojan workforce labour solution agreement agreement application made pursuant tos 185of thefair work act 2009 act application made bytrojan recruitment group pty ltd employer agreement single enterprise agreement 2 application lodged sydney 7 may 2010 application included statutory declaration ofpeter melkimade behalf employer dated 7 may 2010 declaration declaration stated agreement made 24 april 2010 therefore application lodged within 14 day time limit established bysubsection 185 3 act 3 application approval listed hearing 24 june 2010 24 junems grace colliertogether withms melina mortenappeared behalf employer hearing held 22 july 2010 occasionms collierandms mortenwere joined bymr peter melkiwho alsoappeared employer proceeding held 24 june fair work australia fwa identified various issue relating content declaration specific term contained agreement required clarification 4 m collierprovided important clarification hearing employer invited consider residual issue raised fwa respond writing fwa received correspondence dated 5 august 2010 employer included undertaking made employer proposed fwa pursuant tos 190of act undertaking 5 consequently considered application approval regard clarification provided byms collierduring hearing undertaking 6 part 2 4of act includes various procedural requirement must satisfied fwa approve enterprise agreement examined content declaration context clarification provided byms collierduring hearing basis material satisfied procedural requirement ofpart 2 4of act met instance 7 note agreement contain either flexibility term consultation term consequently pursuant sosubsections 202 4 and205 2 act model flexibility term model consultation term taken term agreement 8 nature agreement unusual two significant aspect firstly agreement document constructed may described traditional language industrial instrument respect agreement take form narrative offer employment rather coherent set properly numbered prescription application workplace although personal reservation construction terminology agreement matter necessarily impede approval 9 secondly agreement unusual incorporates almost term modern award employer operates labour hire business order able potentially provide labour australian workplace agreement designed adopt minimum term term condition modern award would applicable particular workplace addition agreement modified undertaking adopts minimum term term condition pre reform instrument wherever instrument application agreement excludes term modern award provide casual conversion order satisfy better overall test employer provided undertaking pay additional 1 trojan flexibility allowance circumstance casual conversion right would otherwise applied relevant modern award lost 10 undertaking represent innovative approach underpin minimum term condition established applicable modern award pre reform instrument additionally compensate loss casual conversion right would otherwise create significant impediment business operation employer regard agreement represents interesting example flexibility available cater business need built upon minimum protection new modern award system 11 prepared accept undertaking provided bys 191of act undertaking taken term agreement satisfied requirement ofss 186 187and188of act relevant application approval met 12 agreement varied undertaking attached annexure approved accordance withsubsection 54 1 act agreement operate 17 august 2010 accordance clause 1 agreement nominal expiry date agreement 17 august 2014 commissionerannexure annexure continued printed authority commonwealth government printer price code c ae879869 pr500392

Tao Ti Co Pty Limited v A & T Evergood Pty Limited [2003] FCA 1509 (9 December 2003).txt

tao ti co pty limited v evergood pty limited 2003 fca 1509 9 december 2003 last updated 18 december 2003federal court australiatao ti co pty limited v evergood pty limited 2003 fca 1509tao ti co pty limited acn 075 542 915 v evergood pty ltd acn 085 909 342 n 1513 2003allsop j9 december 2003sydneyin federal court australianew south wale district registryn1513 of2003between tao ti co pty limited acn 075 542 915 applicantand evergood pty limited acn 085 909 342 respondentjudge allsop jdate order 9 december 2003where made sydneythe court 1 declares thatthe respondent infringed trade mark 670405 2 order thatthe respondent servant agent otherwise restrained using trade mark mark image registered trade mark 670405 mark image annexed hereto directs 3 applicant file serve evidence submission cost 12 december 2003 4 respondent file serve evidence submission cost friday 19 december 2003 5 applicant file evidence submission 23 december 2003 6 party wishing cross examine another party need inform associate allsop j later 4 00 pm 24 december and7 applicant notify respondent order made today application set aside order made application made notice affidavit material support 19 december 2003 note settlement entry order dealt order 36 federal court rule annexure click picturein federal court australianew south wale district registryn1513 of2003between tao ti co pty limited acn 075 542 915 applicantand evergood pty limited acn 085 909 342 respondentjudge allsop jdate 9 december 2003place sydneyreasons judgment1 applicant seek application filed 8 october 2003 declaratory injunctive relief relation trade mark good trade mark two chinese character english expression tao ti 2 application judgment respondent served relevant process told judgment sought today respondent appeared number occasion although appeared occasion sensible defence ever identified articulated court received affidavit mr cheung sworn 4 december 2003 seems indicate respondent recognises defence 3 morning granted leave file notice motion court dated 9 december 2003 sought four order including declaratory relief order read affidavit hang yi li sworn 8 december 2003 exhibit affidavit admitted evidence 4 mr lee solicitor applicant also gave evidence meaning word face bottle would make clear infringing bottle using absolutely identical trade mark chinese character used trade mark green tea bottle 5 circumstance prepared make declaration term order 2 federal court rule order term order 3 federal court rule sought notice motion 6 direct applicant file serve evidence submission cost 12 december 2003 7 order respondent file serve evidence submission cost friday 19 december 2003 applicant file evidence submission 23 december 2003 8 thereafter unless notified either party deal question cost paper party wish cross examine another party need informed later 4 00 pm 24 december 2003 eventuality list matter next year hearing cost application desire cross examine party matter listed argument deal order cost paper christmas vacation deliver judgment convenient early next year 9 direct applicant notify respondent order made today application set aside order application made notice affidavit material support 19 december 2003 certify preceding nine 9 numbered paragraph true copy reason judgment herein honourable justice allsop associate dated 18 december 2003counsel applicant j briensolicitor applicant thomas chang cono appearance respondent date hearing 9 december 2003date judgment 9 december 2003

Privacy Law & Policy Reporter --- "Cases and complaints" [2004] PrivLawPRpr 45; (2004) 11(4) Privacy Law and Policy Reporter 103.txt

privacy law policy reporter case complaint 2004 privlawprpr 45 2004 11 4 privacy law policy reporter 103cases complaintsall decision noted except victorian commissioner available austlii http www austlii edu au citation given unless otherwise stated general editor procedural note nsw adtfollowing appeal panel decision ingr v director general department housing 2004 nswadtap 26 administrative decision tribunal likely split proceeding remedy argued unless liability first confirmed e breach proven example later case ofmt v director general nsw department education training 2004 nswadt 194proceeded macquarie university v fm 2 2004 nswadtap 37nsw administrative decision tribunal internal appeal panel 3 september 2004 privacy disclosure investigative function exemptionthe following summary privacy commissioner 1 explains relevant background fact fm enrolled postgraduate student university new south wale previous post graduate enrolment macquarie university signed form authorising unsw obtain information university enrolled unsw subsequently became aware prior enrolment macquarie sought information macquarie well obtaining transcript academic record staff member unsw phoned two member teaching staff macquarie university obtained information incident led disciplinary investigation fm claimed authorised macquarie disclose information unsw appeal case related whether macquarie university could rely particular exemption public interest direction relating investigative function authorise breach ipp 11 18 disclosure principle part information disclosed macquarie unsw issue information conveyed telephone call rather formal academic recordassessing claim exemptionthe exemption claimed arose public interest direction issued privacy commissioner direction allowed non compliance privacy principle prohibiting disclosure compliance might detrimentally affect prevent proper exercise agency investigative function 2 appeal panel effectively asked particular information issue disclosed might agency investigative function detrimentally affected panel answer investigation need rely particular disclosure personal information issue para 55 appeal panel therefore found breach ipp 11 18 without lawful excuse appropriate remedythe panel commenced deliberation appropriate remedy noting ordinarily breach demonstrated sanction applied agency unless shown responded adequate way already problem identified order therefore needed para 54 panel noted applicant enrolment unsw terminated result investigation particular information disclosed breach ipp 11 actually relied upon unsw making decision panel therefore found basis making monetary compensation order panel also rejected option making systemic order response specific complaint furthermore noted extenuating circumstance respondent conduct complained occurred early day new privacy legislation panel found power limited prescribed ppip act thus order available administrative decision tribunal act 1997 could also applied panel exercised one power remitting matter back respondent organisation recommendation university develop privacy compliance policy circulation fm advised occurred commentarythis matter extremely long history generating five judgment date yet 3 judgment applicant finally vindicated respect small part original complaint received personal remedy respondent recommended develop policy educate staff appeal panel also hinted along way practice could also amended bring compliance act use proper privacy notice student anna johnston salinger comt v director general nsw department education training 2004 nswadt 194nsw administrative decision tribunal 3 september 2004 privacy security disclosure unsolicited exemption duty care exemption serious imminent threat exemptionmt 16 yr old student high school played couple year local soccer team unrelated school student common soccer team coach teacher mt school mt rare medical condition affecting joint risk trauma minor stress mt commenced school several year conduct issue doctor advice provided school type sport could could doctor advice report prepared school counsellor placed mt general student file teacher soccer coach told mt condition 2001 soccer season mt friend told teacher mt serious medical condition recently injured another injury could result confined wheelchair teacher accessed mt general student file read information medical condition teacher asked mt happened mt respond attend soccer training next 6 week later mentioned intention play soccer grand final teacher said match fit aware medical condition teacher told mt mother would need take responsibility mt played mt mother refused sign anything teacher told soccer club president situation president approached mt mother expressing concern mt safety result mt play grand final 2002 mt lodged disability discrimination complaint soccer club hreoc allowed play 2001 soccer grand final hreoc wrote soccer club asking response various question provide copy medical evidence used make decision order respond hreoc teacher accessed mt general school file took copy school counsellor report provided hreoc behalf soccer club mt alleged breach ipps 5 security storage 9 accuracy 10 use 11 12 disclosure ppip act department education responsible school ipp 5 secure storagemt general student file stored main administration office school available teacher mt teacher school policy restricting access department conceded internal review breached ipp 5 specifically 12 c ppip act state agency must ensure information protected taking security safeguard reasonable circumstance loss unauthorised access use modification disclosure misuse ipp 9 check accuracy usethis case reviewed whether requirement ipp 9 check accuracy personal information using extends use way disclosure 4 whether teacher taken reasonable step tribunal found word use ipp 9 meaning ipp 10 distinguishable disclosure however tribunal forced choose two earlier case already attempted define use decision deputy president hennessy referring macquarie dictionary ordinary meaning word fm v macquarie 5 relation ipp 10 tribunal chose definition avail oneself apply one purpose later case gl v det 6 relation ipp 9 tribunal chosen neutral definition employ purpose put service turn account tribunal chose former approach thus requiring proof agency applied information itsownpurposes notanypurpose order apply ipps 9 10 agency conduct tribunal also clarified merely accessing viewing information constitute use unless information also employed purpose applying interpretation mt case tribunal determined use mt personal information agency conduct issue related teacher capacity soccer coach employing information purpose soccer club school alternative tribunal found teacher taken reasonable step check accuracy information behalf school approaching mt claim made teacher mt friend ipp 10 useas reasoning respect ipp 9 tribunal determined use mt personal information agency therefore ipp 10 issue ipps 11 12 disclosurethe department originally conceded two disclosure taken place teacher soccer club president teacher hreoc sought rely various exemption argument disclosure breach ipps 11 12 later argument department sought argue disclosure use teacher purpose related agency purpose argument rejected tribunal intention legislature given decision limit use principle us agency purpose department argument disclosure succeeded would remain privacy protection one person two job capacity collect information one capacity apply tribunal therefore found person dual role access personal information one organisation applies guide hand organisation disclosed personal information even otherwise discus reveal information people within second organisation tribunal therefore found two disclosure taken place turned relevant exemption exemption unsolicited informationsection 4 5 ppip act provides purpose act personal information collected public sector agency receipt information agency unsolicited ipp 11 18 primary disclosure principle refers part enabling disclosure disclosure directly related purpose information collected department argued information mt friend doctor report file unsolicited therefore exempt ipp 11 department conceded school counsellor report unsolicited would appear department appear raise unsolicited exemption relation disclosure principle issue ipp 12 use word collected tribunal confirmed earlier interpretation unsolicited meaning asked tribunal examined whether unsolicited exemption applies use disclosure principle accepted applicant privacy commissioner argument examine issue despite earlier case kd v medical board 2004 nswadt 5 found exemption applied privacy principle mentioned word collected decision affected interpretation ipps 10 11 privacy commissioner argued purpose exemption provide relief collection principle ipps 1 4 held agency remaining obligation relating storage access use disclosure ipps 5 12 apply personal information regardless whether actively collected unsolicited otherwise came agency possession agency creation tribunal found cannot intent legislature undermine agency obligation handle even unsolicited information accordance ipps 5 12 noted although ordinary rule construction word meaning wherever appears statue case word collected ipps 10 11 ought read obtained tribunal therefore found 4 5 limit application collection principle ipps 1 4 affect obligation arise information obtained whether collected held agency exemption disclosure threat healththe agency claimed exemption first disclosure soccer club president ground disclosure necessary prevent lessen serious imminent threat life health individual concerned another person 7 tribunal found teacher different motivation protecting liability case mt injured subsequent action people information disclosed consistent concern prevent mt injured first place tribunal therefore rejected agency claim exemption exemption disclosure duty care 25another exemption claimed authorise first disclosure soccer club president nebulous notion teacher common law duty care example law authorises requires permit reasonably contemplates necessarily implies non compliance normal prohibition disclosure 8 tribunal rejected claim teacher found acted way discharge duty exemption disclosure hreoc power 25an exemption claimed authorise second disclosure hreoc hreoc act law authorises requires permit reasonably contemplates necessarily implies non compliance normal prohibition disclosure 9 tribunal disagreed noting result follow would need direction hreoc agency merely request hreoc president request directed agency even teacher outcome three ipps breachedthe tribunal found breach ipps 5 11 12 matter relisted consideration appropriate remedy see procedural note comment investigative implicationsthis case confirms initial request information organisation hreoc power compel information yet exercised sufficient invoke 25 thus override normal prohibition disclosure confirms advice given previously privacy nsw agency take risk management approach ask investigative agency exercise formal power lawfully require agency provide personal information sought implication law enforcement investigative agency agency receiving end request information agency although informal gentle way seeking information agency may popular efficient also expose target agency greater risk breaching privacy obligation comment training securityis training security safeguard thus responsibility discussing ipp 5 tribunal noted 22 confusion among school staff relation responsibility privacy act principle duty care teacher appears confused child protection principle procedure also noted 22 24 school systematic process information management staff trainingno recorded policy procedure provide staff clear information regarding appropriate access range student record system school placeno staff handbook similar information department appear strategy would ensure school principal provide staff teacher training responsibility relation privacy act 25 policy indicate privacy concern appropriately considered dealing personal information 26 would therefore appear step taken ipp 5 safeguard personal information misuse include physical security issue policy issue wider training awareness anna johnston salinger comy v director general department community service 2004 nswadt 203nsw administrative decision tribunal 17 september 2004 privacy accuracy ipp 9 four child removed wife doc care proceeding instituted various affidavit doc caseworker tendered care proceeding proceeding resulted child remaining minister care adulthood subsequently claimed affidavit contained false misleading irrelevant statement wife sought review doc conduct ppip act scope principle reviewit would appear although essentially complaining accuracy information ipp 9 disclosure court ipp 11 internal review application framed term access amendment right ipps 6 8 accuracy ipp 9 nonetheless internal review report doc reviewed compliance collection disclosure principle well subsequently lodged application tribunal arguing ipps 6 8 9 unrepresented failed appear final hearing matter conceded earlier planning meeting relevant child care legislation provided exemption department ipps 6 8 although point well explained judgment judgment refers section 248 thechildren young person care protection act 1998 authorises certain exchange information thus go collection disclosure rather access amendment ipp 9 accuracy usethe remaining argument ipp 9 related various statement made affidavit disputed department provided evidence source document statement upon caseworker relied drafting affidavit argued information presented affidavit presented accurate summation information also noted challenged veracity material appropriate time presented original care proceeding tribunal concluded department used personal information drafting affidavit taken reasonable step ensure accuracy thus complied ipp 9 comment ipp 9 sleeper principle case illustrates potential ipp 9 used applicant seek argue case decision arena unfortunately tribunal explicitly address point raised respondent case appropriate time challenge veracity accuracy material original care proceeding related point would appropriate mechanism challenge decision way appeal rather privacy complaint another case 10 tribunal member accepted defence argument ipp 9 might applicant previously given opportunity correct argue accuracy information failed presenting information applicant forum affords opportunity raise concern correct record could constitute reasonable step ipp 9 tribunal simply accepted reasonable step taken without expliciting stating whether fact information previously subject litigation challenged time one step anna johnston salinger co 1 see case note privacy nsw website original judgment infm v macquarie university 2003 nswadt 78 available atwww lawlink nsw gov au privacynsw 2 see clause 4 thedirection processing personal information public sector agency relation investigative function issued nsw privacy commissioner 28 december 2001 41 ppip act particular direction longer force similar version see www lawlink nsw gov au privacynsw 3 addition fm v macquarie case see related v unsw case judgment vice chancellor macquarie university v fm 2003 nswadtap 43is still pending appeal court appeal 4 ipps draw distinction use ipp 10 disclosure ipps 11 12 5 fm v vice chancellor macquarie university 2003 nswadt 78 6 gl v director general department education training 2003 nswadt 166 7 see 18 1 c ppip act 8 see section 25 ppip act refers act law able override certain ipps certain circumstance much argument inmtrelated whether common law duty meet definition law necessary attract application section 25 ultimately point decided 9 see section 25 ppip act refers act law able override certain ipps certain circumstance 10 mt v director general nsw department education training 2004 nswadt 194at 184 185

United Voice [2013] FWCA 3591 (5 June 2013).txt

united voice 2013 fwca 3591 5 june 2013 2013 fwca 3591fair work commissiondecisionfair work act 2009s 185 application approval single enterprise agreementunited voice ag2013 1323 big step early childhood education care sa united voice christian brother college community child centre enterprise agreement 2013children servicescommissioner hamptonadelaide 5 june 2013application approval big step early childhood education care sa united voice christian brother college community child centre enterprise agreement 2013 1 application made approval enterprise agreement known thebig step early childhood education care sa united voice christian brother college community child centre enterprise agreement 2013 agreement application made pursuant tos 185of thefair work act 2009 act united voice agreement single enterprise agreement 2 satisfied requirement ofss 186 187and188of act relevant application approval met 3 united voice 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 12 june 2013 nominal expiry date agreement 30 june 2015 commissionerprinted authority commonwealth government printer price code j ae401636pr537582

V98_09347 [1999] RRTA 1042 (23 April 1999).txt

v98 09347 1999 rrta 1042 23 april 1999 refugee review tribunaldecision reason decisionrrt reference v98 09347country reference people republic china prc tribunal member mr srechko j konteljdate decision 23 april 1999place melbournedecision tribunal affirms decision grant protection visa catchword 1989 student demonstrator cultural revolution discrimination account political belief backgroundthe applicant citizen people republic china prc arrived australia early 1998 22 may 1998 lodged application protection visa department immigration multicultural affair themigration act 1958 act 25 september 1998 delegate minister immigration multicultural affair refused grant protection visa 21 october 1998 applicant sought review decision issue arises case validity application review tribunal jurisdiction review delegate decision legislationa criterion protection visa time decision minister review tribunal satisfied applicant person australia protection obligation 1951 convention relating status refugee amended 1967 protocol relating status refugee s 5 1 and36 2 act australia party refugee convention refugee protocol generally speaking protection obligation people refugee defined refugee conventionarticle 1a 2 convention defines refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return definition considered high court inchan yee kin v miea 1989 hca 62 1989 169 clr 379 applicant anor v miea anor 1997 142 alr 331 354 andmiea v guo anor 1997 144 alr 567 575 6 federal court number case notablyram v miea anor 1995 fca 1333 1995 57 fcr 565 case established following general principle inguo case court observed definition contains four key element first applicant must outside country second applicant must fear persecution inapplicant gummow j 375 referred primary meaning term persecution ordinary usage action persecuting pursuing enmity malignity esp infliction death torture penalty adherence religious belief opinion view repression extirpation every threat harm interference person right convention reason constitutes αbeing persecuted mason cj referred persecution requiring serious punishment penalty significant detriment disadvantage chanat 388 harm threat harm part course selective harassment person whether individually member group subjected systematic harassment amount persecution done convention reason appropriate case may include single act oppression serious violation human right measure disregard human dignity persecution must official quality sense official officially tolerated uncontrollable authority country nationality persecution implies element motivation part persecute infliction harm people persecuted something perceived attributed persecutor third reason persecution must found singling one convention reason race religion nationality membership particular social group political opinion phrase αfor reason serf identify motivation infliction persecution fourth applicant fear persecution convention reason must αwell founded fear add objective requirement requirement applicant must fact hold fear person αwell founded fear persecution convention genuine fear founded upon αreal chance persecution convention stipulated reason fear well founded real substantial basis merely assumed mere speculation αreal chance one remote insubstantial far fetched possibility person well founded fear persecution even though possibility persecution occurring well 50 per cent addition applicant must unable unwilling fear avail protection country object convention provide refuge lost thede jureorde factoprotection government unwilling return country nationality follows whenever protection country nationality available ground based well founded fear refusing person concerned need international protection refugee whether applicant satisfies convention definition assessed upon fact exist decision made requires consideration matter relation reasonably foreseeable future mere fact person claim fear persecution particular convention reason establish either genuineness asserted fear well founded reason claimed applicant persuade tribunal statutory element made guo caseat 596 claim evidencethe applicant claim set written submission department written submission tribunal 8 january 1999 tribunal wrote applicant letter addressed applicant advising considered paper relating application unable make favorable decision information alone applicant advised entitled come hearing tribunal give oral evidence support claim applicant advised tribunal wanted give oral evidence on1 march 1999 tribunal wrote applicant advising hearing would held 9 april 1999 applicant advised attend hearing postponement granted tribunal would assume longer wanted come hearing decision could made without notice applicant attend hearing contact tribunal explain failure attend circumstance satisfied tribunal discharged obligation provide applicant opportunity give oral evidence effectively declined opportunity matter therefore determined evidence tribunal evidence comprises department tribunal file relating application information tribunal obtained independent source matter referred application applicant claim follows applicant born early 1960s tian jin china applicant married early 1990s wife child live china applicant father sibling live china applicant submitted following statement claim applicant citizen people republic chinathe applicant father resided hong kong nearly twenty year 1949 returned prc lived since time chinese revolution 1966 1978 father persecuted background hong kong applicant family also relative living overseas anti capitalist belief particular time applicant family often prosecuted condemned family background overseas applicant parent jailed suffered physical punishment applicant sister also serevely affected applicant developed anti government attitude since childhood due pain shame family suffered applicant maintained attitude ever since obtaining university education even convinced ad hoc corrupted government witnessed many incidence government official corruption massive unemployment suffering result ad hoc corrupted government applicant voiced opinion government often condemned employer fellow employee 1989 applicant participated massive 1989 demonstration street actively assisted student organise demonstration government applicant donated lot saving student support demonstration also drafted several article expressed view government hope democracy 1989 tian men incident applicant detained police questioned time applicant first met another person also refugee applicant similar ground developed close friendship due similar background attitude government since 1989 applicant often questioned checked police regular basis work home participation 1989 incident continuing anti government attitude behaviour applicant often transferred employer factory experienced three job transfer period 1991 1996 1997 applicant sacked received income early 1998 applicant decided go overseas obtained assistance friend helped get touch manager company tianjin manager assisted applicant application 456 visa applicant reason leaving prc follows firstly fear return prc would detained questioned police ever since childhood applicant suffered lot emotional physical torture would able handle additional shame suffering might caused secondly applicant fear would subject public condemnation persecution return prc trip australia family background anti government conduct applicant also submitted translated letter father dated mid 1998 wherein father stated culture revolution family suffered physical mentally abuse government accumulated hate government since childhood applicant joined student parade 1989 known tian men massacre ever since interrogated many time authorized department government monitored work even private life applicant submitted another translated letter friend dated mid 1998 stated prove applicant interrogated police force many time since tian men massacre 1989 seen disguised police man appeared around living area findingsthe tribunal accepts applicant subjectively fear returning home country china convention reason however applicant satisfy definition refugee art 1a 2 convention applicant must well founded fear persecution one convention reason tribunal accepts applicant hold different political view prc government however constitute convention ground united nation handbook procedure criterion determining refugee status paragraph 80 give following guide holding political opinion different government ground claiming refugee status tribunal accepts applicant family persecuted communist 1940 1950 1960 1970 tribunal accept applicant discriminated education system appears completed primary middle university education tribunal accepts applicant participated pro democracy demonstration 1989 donated money student demonstrator tribunal accepts applicant may written article relation movement tribunal accepts applicant may questioned involvement student demonstration letter applicant father friend confirm finding tribunal accepts chinese authority low level interest applicant regard tribunal accepts applicant often questioned checked police regular basis work home claimed tribunal accept applicant discriminated employment tribunal note except period late 1996 early 1997 applicant gainful employment 1984 1997 tribunal accepts applicant may transferred 3 occasion 1991 1996 find 3 transfer within 5 year amount persecution tribunal accepts applicant employment may terminated shortly travel australia however applicant attend hearing tribunal opportunity test claim clarify applicant claim regard circumstance tribunal find insufficient evidence substantiate finding applicant favor treatment work possible dismissal convention reason reasonsmembership particular social groupthe tribunal note convention family comprise particular social group seechan caseper mason c j 390 andche case pg 15 applicant claim persecuted family background tribunal accepts applicant family background relevant convention ground membership particular social group imputed political opinion considered together ground membership particular social group tribunal accepts applicant claim family suffered result family background post liberation period cultural revolution consistent information available relation period however question tribunal whether real chance subjected ill treatment amounting persecution family background return china post liberation period ended 40 year ago applicant born cultural revolution officially regarded chinese authority ended third plenary session 11th central committee communist party china 22 december 1978 session policy gang four cultural revolution formally repudiated determining likely effect family background future treatment tribunal considered view department foreign affair trade dfat view highly regarded commentator dfat refugee determination country profile china november 1993at page 27 many claim persecution discrimination parent grandparent rightist leaning bourgeois liberalism counter revolutionary behavior lead placement education detention 1955 1962 often beaten suffered abuse applicant claim refused government work family background however label led serious discrimination since 1970 consistent earlier dfat opinion cultural revolution influence treatment individual example seedfat cable bj51078 6 july 1992 referring advice sought relation particular applicant may well true family suffered cultural revolution many chinese including present senior chinese leadership fact difficulty would relevant 1990 tribunal also considered opinion non government source matter entry inencyclopaedia britannica volume 16 macropaedia fifteenth edition 1992 read ambivalent legacy cultural revolution reflected member politburo chosen eleventh party congress convened august 1977 like hua guofeng almost half member individual whose career gained cultural revolution half like deng xiaoping cultural revolution victim balance would reached period year tide quickly began turn decidedly favor latter group reformer led deng xiaoping tried 1978 reduce level political coercion chinese society million victim past political campaign released labour camp especially 1978 1980 bad class label removed stigmatised dramatically improved career social opportunity available million former political pariah john king fairbanknotes inchina new history harvard 1992 page 406 409 deng regime first need establish right rule acknowledging error tried reconsider correct wrong judgement inflicted several category people including million landlord rich peasant early 1950 500 000 person labelled rightist 1957 58 several million countryside named anti socialist element early 1960 least 3 million cadre wrongly judged 300 000 others wrongly convicted crime cultural revolution together family totalled perhaps 100 million people altogether rehabilitation campaign enormous project pursued five year professor merle goldman insowing seed democracy political reform deng xiaoping era harvard university press cambridge mass 1994 observes page 27 8 spring 1977 even deng xiaoping reappearance july hu yaobang returned power vice president central party school training centre high official eleventh party congress august elected central committee december became head organisation department office party apparatus hu arrival organisation department greeted enthusiastically subordinate hoped immediately took long ignored appeal justice purged began process rehabilitation one observer recall hu convened meeting talked emotionally injustice committed mao era moving many tear strong opposition rehabilitated virtually purged cultural revolution also anti rightist campaign mao designated successor hua guofeng remaining maoist top leadership wanted people rehabilitated deng thought 60 percent rehabilitated hu insisted necessary rehabilitate almost victim campaign fairness also heal wound past gain co operation carrying reform three million official scientist intellectual skilled worker imprisoned detained suffered persecution returned public life addition hu behest designation landlord rich peasant child reactionary place since beginning mao era removed political atmosphere suddenly infused elation expectation tribunal note applicant claim often prosecuted condemned family background although detail alleged discrimination however noted discrimination may necessarily amount persecution inchan casethe high court distinguished discrimination persecution decided form selective discriminatory treatment state citizen amount persecution discriminatory treatment constitute persecution must result serious penalty significant detriment disadvantage return obviously harm threat harm part course selective harassment person whether individually member group subjected harassment reason membership group amount persecution done convention reason 388 theoffice united nation high commissioner refugeesoffers guide distinguish discrimination persecution paragraph 54 thehandbook procedure criterion determining refugee statusit state difference treatment various group indeed exist greater lesser extent many society person receive le favourable treatment result difference necessarily victim persecution certain circumstance discrimination amount persecution would measure discrimination lead consequence substantially prejudicial nature person concerned eg serious restriction right earn livelihood right practise religion access normally available educational facility applicant submitted graduated primary middle school also university claimed gainful employment 1984 1997 except period late 1996 early 1997 tribunal note completed high school university education employment j 1984 1997 apart period late 1996 early 1997 applicant educational employment background capacity obtain legal passport leave china consistent commentator view cultural revolution longer significant influence life people china given applicant educational employment history tribunal satisfied suffer serious detriment disadvantage reason accordingly tribunal satisfied discrimination subjected result family background amount persecution within meaning convention regard independence non government source consistency view dfat applicant experience tribunal satisfied cultural revolution repudiated remote possibility applicant family background influence treatment authority future accordingly tribunal find present real chance applicant suffer persecution membership particular social group e family political opinion imputed family background returned prc fear authority pro democracy activity china many hundred thousand people participated pro democracy demonstration 1989 tribunal note however chinese government treated pro democracy leader differently mere participant thedepartment foreign affair trade dfat report authority regard differently person active leader dissident movement merely participated event 1989 incable bj51854 21 september 1992 dfatreports confirm prc authority treated harshly people merely participated demonstration rally signed petition collected money support protest activity least one million people involved activity beijing alone may june 1989 authority taken strong punitive action high profile activist leader organisation prc government regard illegal view confirmed bydfat cable bj1879 1 june 1993which noted student others high dissident profile significant influence china time tiananmen incident even office bearer overseas pro democracy organisation would remote chance facing administrative criminal sanction chinese authority unless return initiated organised activity opposing government effective way advice confirmed indfat facsimile f 0244 9 may 1995 whichstated already noted post reporting past prc authority stated involved event june 1989 living overseas fear returning china distinction former participant leader may future activist also made independent source seminar november 1994 two academic specialize china advised tribunal attitude chinese authority participated 1989 demonstration dr michael dutton linda jaivin australian national university advised chinese government longer interested active 1989 pro democracy movement unless become perceived liable become active dissident movement prc return regard consistency government non government view tribunal satisfied may real chance applicant would face persecution authority considered leader might would effectively oppose government return considering whether applicant could possibly regarded effective leader authority tribunal regard activity experience hand authority time china following 4 june incident considered issue context view government non government commentator relation perception applicant leader participant dfat refugee determination country profile china june 1994 heading may june activity associated 4 june 1989 pro democracy demonstration tiananmen square beijing shanghai part china page 28 29 generally relevant applicant case state turbulent period many people caught government broad sweep suspect released interrogation became clear people released major key player sought following likely considered key player demonstration given extensive security network vetting procedure ability obtain second exit permit except possibly june august 1989 shanghai legal departure six month june 1989 imprisonment short spell interrogation retaining employment time departurethe tribunal also sought view non government source issue noted former chinese dissidentwu er kai xii independent prc government living usa 5 april 1995 tribunal sought advice people low level involvement 1989 demonstration china advised passed political confession test applied work unit 1989 authority would interested today another independent commentator dr adrian chanof university new south wale support view document dated 31 august 1995 dr chan confirmed verbal advice given tribunal person obtained passport exit visa leave china june 4 1989 incident interest chinese authority government non government view consistent tribunal accepts accurate tribunal note applicant questioned pro democracy activity 4 june crackdown arrested detained apparently exited china freely without incident applicant retained job shortly left australia tribunal note applicant claimed applicant required write self criticism relation involvement pro democracy demonstration however regard even applicant tribunal note following comment inthe hunt dissident china immigration refugee board documentation centre irbdc ottawa october 1990 following event april may june 1989 chinese authority bolstered practice self criticism order ass ideological position chinese population prime minister li peng decreed three study session per week deng speech cadre state employee public servant submit written statement ideological position regarding spring 1989 pro democracy movement party also required worker report participation demonstration way exposing military law penalty pp 2 3 tribunal accepts applicant questioned chinese authority involvement pro democracy demonstration pro democracy movement even tribunal satisfied questioning applicant amount persecution given widespread nature questioning participant 1989 pro democracy demonstration fact applicant detained period time relation applicant claim regularly questioned police post 1989 checked home work tribunal find insufficient evidence nature questioning police attention tribunal find alleged police activity amount persecution convention reason applicant attend hearing assist tribunal regard applicant claim general lacking detail tribunal unable establish relevant fact tribunal find applicant claimed experience without anything appear amount persecution convention sense tribunal accepts applicant sought assistance friend expedite issuance passport exit clearance however tribunal accept evidence applicant wanted high profile dissident related issuedr adrian chan senior lecturer chinese politics university new south wale gave following advice tribunal 30 august 1995 everyone offer bribe china mean little offer 20 official processing passport move application list bottom tenth really high profile dissident wanted psb way official would take risk found even offered person 100 would accept penalty taking bribe helping people leave country wanted high profile dissident serious regard fact applicant detained arrested left country without apparent incident tribunal satisfied left china chinese authority regard leader pro democracy demonstration movement satisfied interest authority basis given country information state prc authority longer interested people applicant tribunal find merely participated demonstration tribunal find real chance applicant would persecuted reason political opinion returned prc future event since departurethe letter applicant friend could read imply since applicant departure police appeared around applicant living area regard country information indicates visit authority standard practice family member overseas dr adrian chan record conversation tribunal sydney 30 august 1995 said α psb visit really mean anything special family relative overseas targeted police tribunal accepts applicant family may visited authority questioned applicant however tribunal find applicant family targeted authority convention reason tribunal find applicant mere participant pro democracy demonstration therefore concern chinese authority relation applicant fear condemned persecuted trip australia tribunal note country information indicates prc government encouraged pro democracy demonstration student return china policy punishing low level dissident thedfatreported incable bj51658 2 september 1992that state council announcement people daily 20 august 1992 part read student abroad welcomed back home studying abroad matter political attitude welcomed return home chinese government shall perform investigation spoke something beneficial country joined organisation chinese government engaged activity harmful state security honour interest welcomed return work condition withdraw organisation longer take part activity violation chinese constitution law opposition chinese government subsequently on9 october 1992 dfat cable sh7734 reported asked official whether student engaged anti chinese demonstration related activity abroad singled return official said premier li peng secretary jiang zemin made quite clear june 1989 event considered extraordinary circumstance student returning abroad punished participating demonstration etc issue dfat confirmed cable bj1879 1 june 1993that chinese government unduly perturbed claimed leader pro democracy organisation overseas leadership role high public profile left china even relatively well known dissident able return china without much difficulty long publicly advocate opposition government student others high dissident profile significant influence china time tiananmen incident even office bearer overseas pro democracy organisation would remote chance facing administrative criminal sanction chinese authority unless return initiated organised activity opposing government effective way advice confirmed indfat facsimile f 0244 9 may 1995 whichstated already noted post reporting past prc authority stated involved event june 1989 living overseas fear returning china mr peter coyneindissent china 1993 country information service department immigration ethnic affair april 1994notes absence mid 1992 report arrest involved event june 1989 pp 6 7 note also report provided indication 1989 activist still pursued police p 7 tribunal also considered view non government source issue dr adrian chanis senior lecturer chinese politics university new south wale 31 august 1995 advised tribunal view attitude chinese authority student demonstrating australia αthe chinese authority interested people considered ordinary people significance true even person involved one pro democracy group chinese consulate simply interested tribunal accepts consistent report satisfied real chance applicant would punished authority upon return china unless organized political activity opposing government return given low level role pro democracy movement china low profile australia tribunal satisfied evidence applicant would lead anti government activity return china satisfied evidence applicant would perceived authority leader likely effectively oppose regime return threat chinese authority tribunal satisfied real chance applicant would targeted persecution chinese authority considered applicant claim individually cumulatively tribunal concludes applicant well founded fear persecution convention reason conclusionhaving considered evidence whole tribunal satisfied applicant person australia protection obligation refugee convention amended refugee protocol therefore applicant satisfy criterion set 36 2 act protection visa decisionthe tribunal affirms decision grant protection visa srechko j kontelj

Applicant: Mrs Maribeth Ramos Withall Principal: Mr Jerry Ramos Ramintas IRT Reference: S93_00521 #number 2827 [1993] IRTA 2827 (13 October 1993).txt

applicant mr maribeth ramos withall principal mr jerry ramos ramintas irt reference s93 00521 number 2827 1993 irta 2827 13 october 1993 ramintasdecision mary lindsay member delivered adelaide 13 october 1993 concessional family visa applicant spouse found usual occupation electronic equipment assembler educational qualification equivalent twelve year primary secondary education australia necessary score received migration act 1958 30 121amigration regulation rr 146 1 h 146 2 147amigration review regulation r 2aimmigration review tribunalstatement decisionand reason decisionirt reference s93 00521 2827 docapplicant mr maribeth ramos withallprincipal mr jerry ramos ramintastribunal mary lindsay presiding memberdate 13 october 1993place adelaide south australiadecision tribunal pursuant tos 118 4 ba themigration act remit application reconsideration direction principal received necessary score accordingly satisfied criterion item 8 schedule 1 migration regulation reason decisionthis application maribeth ramos withall applicant review decision delegate minister immigration local ethnic affair grant brother mr jerry ramos ramintas principal concessional family visa class 105 7 january 1992 mr ramintas citizen philippine lodged application form migration australia form 47 manila post department immigration local government ethnic affair department dilgea application accompanied sponsorship form m40 signed mr withall together various supporting document referred later application assessed primary decision maker 23 july 1992 mr ramintas refused concessional family visa failed achieve necessary score point test following refusal mr withall submitted application review migration internal review office miro 10 september 1992 miro affirmed primary decision 10 february 1993 ground 22 april 1993 mr withall submitted application review tribunal legislationthe tribunal note migration 1993 regulation came operation 1 february 1993 however case subject regulation visa application lodged date subregulations 8 2 1 b state application decided accordance law force prior 1 february 1993 given prescribed criterion need satisfied entitlement concessional family visa set item 3 part 3 schedule 2 migration regulation 1989 regulation alpha numeric symbol defined schedule 1 conveniently summarised follows grant visa must fall within normal ceiling class gazetted minister b1 assurance support necessary required minister c sponsorship required parent brother sister aunt uncle son daughter public interest criterion e family unit member meet health public interest criterion relation custody guardianship access g receive necessary score point assessment subdivision b division 2 ofpart 2of themigration act 1958 act h1 health criterion applicant working age time making application major decision tribunal called upon review application decision minister delegate making assessment point undersubsection 30 1 act decision specifically reviewable subregulation 2a 1 c migration review regulation 1989 accordingly necessary stage enquire whether criterion grant visa satisfied relevant reviewable decision currently relates point test prescribed qualification prescribed number point qualification set schedule 4 regulation qualification employment age relationship sponsor duration australian citizenship sponsor capability sponsor provide settlement support location sponsor australiaregulation 147a introduced 27 february 1991 entitles principal spouse granted point employment age qualification credited point principal entitled relationship citizenship settlement location qualification effect r 147a principal fails point test principal spouse pass principal taken received necessary score evidencein considering application review tribunal took evidence mr withall hearing matter 27 september 1993 document contained department file provided tribunal 122 2 act also considered decision department file indicates primary decision maker miro review officer assessed mr ramintas spouse point primary decision maker miro review officer awarded following point qualification principal spouseemployment 0 20age 30 30relationship 10 10citizenship 10 10settlement 10 10location55total65 85the tribunal required make point assessment carried employment qualificationin application review mr withall claimed brother mr ramintas spouse assessed wrongly employment qualification qualification point awarded accordance provision regulation 146 regulation force date review authority assessment primary assessment whichever favourable principal see 121a act mr ramintas migration application form show 1987 worked susanacrafts design artist primary decision maker claimed record present occupation relevant question migration application form therefore deemed unemployed without usual occupation subregulation 146 2 regulation defines usual occupation follows usual occupation mean occupation applicant engaged gain reward continuous period least 6 month period 2years immediately preceding relevant application visa entry permit employment reference dated 22 august 1992 presented miro review application state principal employed susanacrafts period july 1989 present reference reveals principal also worked casual basis philippine educational theatre association prop master senior migration officer manila contacted miro officer conduct enquiry principal employment evidence variance provided application form letter dated 8 january 1993 senior migration officer manila stated following contacted susanacrafts confirmed mr ramintas employed contractual basis company since july 1989 asked president secretary sort hour mr ramintas worked advised worked casual basis perhaps working design project one month would required two week work three week etc also undertakes casual work philippine educational theatre association mr ramintas provided u copy salary receipt income tax return attached none certified copy original spoke briefly mr ramintas today phone confirmed employed susanacrafts since july 1989 time worked casual basis philippine educational theatre association also confirmed present contract susanacrafts casual employment salary receipt would indicate also told typed salary receipt signed raise doubt nature employment letter accompanying application review tribunal mr withall claim first refer certification employment dated february 9 1989 copy letter exhibit 1 stated letter mr ramintas employed susanacrafts october 2 1987 date correct time fact employed mr tomas rapio sub contracted mr ramintas susanacrafts copy letter exhibit 2 mr ramintas working susanacrafts since october 2 1987 actually employed july 1989 letter dated 2 september 1992 accompanied miro appeal applicant listed brother employment history follows 1 employer susanacraftsposition full time company artistperiod employment july 1980 present2 employer philippine educational theatre associationposition part time prop masterperiod employment july 1990 october 1990november 1991 january 1992 assertion brother full time company artist variance mr withall evidence oral hearing matter stated brother employed susanacraft part time basis assertion quoted brother period employment susanacrafts july 1980 present also variance brother statement application claimed employed susanacrafts 1987 evidence file certificate employment philippine educational theatre association dated 14 august 1992 show association certified mr jerry ramintas staff association stated mr ramintas worked prop master peta ke mobile production mga ibong mandaragit july 1990 october 1990 major season production kahapon ngayon bukas november 1991 january 1992 carefully considering evidence tribunal find mr ramintas worked casual basis susanacrafts philippine educational theatre association peta various time two year preceding application permanent entry australia work included painting nature product prop master tribunal satisfied however casual work undertaken mr ramintas two casual job amounted usual occupation tribunal satisfied time spent two job amounted continuous period least six month period two year immediately preceding relevant application visa entry permit required regulation consequently tribunal find mr ramintas cannot granted point employment category application review applicant claim principal spouse mr marimil ramintas given 25 point skill go claim since qualification assessed omea comparable tafe certificate post secondary qualification score 25 point 20 evidence file tribunal determines usual occupation mr marimil ramintas best fit electronic equipment assembler according australian standard classification occupation code 8103 13 requires one two week job training evidence file show mr marimil ramintas successfully completed six year primary school four year secondary school two year trade apprenticeship post school technical training tribunal accordingly award mr ramintas 20 point accordance migration regulation 146 1 h applicant occupation applicant usual occupation educational qualification equivalent twelve year primary secondary education australia gain point category principal spouse required apply basis usual occupation australia degree diploma associate diploma trade certificate required entry occupation entry requirement mr ramintas usual occupation electronic equipment assembler requires one two week job training therefore unable gain point employment category carefully examining evidence tribunal satisfied point awarded remaining qualification point test maximum allowable summaryin summary tribunal award applicant spouse following point regulation 146 qualification principal spouseemployment 0 20age 30 30relationship 10 10citizenship 10 10settlement 10 10location55total65 85at date primary assessment miro decision 121a migration act 1958 state 121a reviewing assessment minister section 30 regulation purpose section review authority regard whichever following favourable applicant regulation purpose force time assessment made minister b regulation purpose force time decision made review authority assessment however principal lodged application migration prior introduction 121a entitled assessed accordance law force date application seere maceda irt decision q90 00005 delivered 25 july 1990 tribunal decision inre masella irt decision s91 00826 delivered 4 february 1992 tribunal identified two view accrued right relation application point test generally specifically apply gazettal pool entrance pas mark agree observation reasoning decision date principal application migration 7 january 1992 priority mark set minister section 32 act 85 point date primary assessment date decision priority mark 100 point principal received score 85 point priority mark force time lodged application find received necessary score point test accordance reasoning inre maceda supra andre masella supra decisionthe tribunal pursuant tos 118 4 ba themigration act remit application reconsideration direction principal received necessary score accordingly satisfied criterion item 8 schedule 1 migration regulation mary lindsaypresiding member13 october 1993

In the matter of Oliver Brown Pty Limited [2013] NSWSC 738 (2 April 2013).txt

matter oliver brown pty limited 2013 nswsc 738 2 april 2013 last updated 12 june 2013supreme courtnew south walescase title matter oliver brown pty limitedmedium neutral citation 2013 nswsc 738hearing date 2 april 2013decision date 02 april 2013jurisdiction equity division corporation listbefore black jdecision proceeding dismissed catchword procedure order sought proceeding dismissed evidence led plaintiff support case legislation cited civil procedure act 2005 nsw s 56 57 58corporations act 2001 cth s 233 471buniform civil procedure rule 2005 nsw rr 29 7 29 7 4 case cited han pet construction pty ltd v cassar 2009 nswca 230 nsw trustee guardian executor michael robert walsh deceased v gregory 2012 nswsc 681 vogt v vaughan 2006 nswsc 1003category interlocutory applicationsparties min kyu kim first plaintiff min jae kim second plaintiff dong woo seo third plaintiff bmj chocolata pty limited fourth plaintiff mtk chocolata pty limited fifth plaintiff byung sun eric song first defendant jacob jihoon kim second defendant oliver brown pty limited third defendant representation counsel counsel p liedtke solicitor first defendant solicitor solicitor clamenz evans elli first defendant file number 2011 296647judgment ex temporea hearing four day set commence today complex proceeding commenced three individual min kyu kim mkk min jae kim mjk dong woo seo dws two company bmj chocolata pty limited bmj chocolata mtk chocolata pty limited mtk chocolata defendant proceeding byung sun eric song e jacob jihoon kim jk oliver brown pty limited liquidation company interpolate question arises circumstance refer grant leave bring proceeding company unders 471bof thecorporations act2001

Ian Reginald Beckwith v Power and Power (A Firm) BN [1993] FCA 317; (1993) 43 FCR 256 (7 July 1993).txt

ian reginald beckwith v power power firm bn 1993 fca 317 1993 43 fcr 256 7 july 1993 federal court australiaian reginald beckwith v power power firm b n 190 1992creditor petition 633 1992fed 447number page 22bankruptcy 1993 fca 317 1993 43 fcr 256courtin federal court australiabankruptcy district state queenslandgeneral divisioncooper j 1 catchwordsbankruptcy creditor petition bankruptcy notice application set aside bankruptcy notice application summary judgment magistrate court judgment entered application set aside judgment dismissed whether court go behind judgment whether adjudication merit whether truth reality debt due judgment debtor petitioning creditor consideration adequacy bill cost joint several liability company director 592 corporation law cost act 1867 qld 8 22 229corporations law 460 592 592 1 b 592 1 b ii corney v brien 1951 hca 31 1951 84 clr 343wren v mahoney 1972 hca 5 1972 126 clr 212re v j removal ex parte earl bn 963 1985 pincus j unreported 21 6 85 david ex parte lahood 1979 27 alr 306petrie v redmond 1942 13 abc 44re vojnovski 1970 alr 355olivieri v stafford 1989 24 fcr 413currie or v robinson 1968 qwn 25re flower hart bill cost 1991 2 qdr 20re walsh halligan douglas bill cost 1990 1 qdr 288coburn v colledge 1897 1 qb 702in lawler 1878 4 vlr 8 ipand rema industry service pty ltd v coad 1992 fca 114 1992 10 aclc 530taylor v darke 1992 fca 428 1992 10 aclc 1516hussein v good 1990 8 aclc 390group four industry pty ltd v brosnan 1991 9 aclc 1 181martin v hogan 1917 hca 75 1917 24 clr 234plaimar ltd v water trading co ltd 1945 hca 34 1945 72 clr 304minister supply development v serviceman co operative joinery manufacturer ltd 1951 hca 15 1957 82 clr 621hawkins v bank china 1992 10 aclc 588russell halpern nominee pty ltd v martin 1986 4 aclc 393shapowloff v dunn 1981 hca 21 1981 148 clr 72re walsh ex parte deputy commissioner taxation 1982 fca 88 1982 42 alr 727sherry case 1884 25 chd 692deeley v lloyd bank 1912 ac 756hearingbrisbane 27 july 19927 7 1993solicitors applicant mr p hackett stokes andpanettierecounsel respondent mr paul howardsolicitors respondent power powerorderthe court order 1 petition dismissed 2 bankruptcy notice issued 17 february 1992 set aside 3 petitioning creditor pay judgment debtor costsof incidental petition application setaside bankruptcy notice taxed agreed note settlement entry order dealt rule 124 bankruptcy rule decisioncooper j 28 february 1992 judgment debtor acting behalf filed application set aside bankruptcy notice issued 17 february 1992 woodland western australia application judgment debtor filed expiration compliance period stated notice judgment debtor alternatively sought extension time comply notice 2 10 march 1992 creditor petition filed alleging non compliance bankruptcy notice act bankruptcy relied upon petition served 25 march 1992 judgment debtor gave notice intention appear oppose petition 3 number adjournment application petition returned occasion hearing judge court 4 application set aside bankruptcy notice judgment debtor denies justly truly indebted petitioning creditor sum 15 016 78 amount judgment dispute committed act bankruptcy alleged petition namely failure comply requirement bankruptcy notice common ground arises application petition issue whether court go behind judgment whether revealed truth reality debt due judgment debtor petitioning creditor 5 petitioning creditor firm solicitor practising brisbane 12 october 1991 solicitor filed plaint summons magistrate court brisbane claiming 13 516 56 money due payable solicitor pleaded fact relied upon prove claim 1 material time 1 1 plaintiff firm solicitor 1 2 defendant director lfb australia pty ltd acn 010 969 034 lfb company duly incorporated according law itsregistered office c level 25 central plaza one 345 queenstreet brisbane state queensland b alternatively person took part themanagement lfb within meaning expression insub section 592 1 corporation law 2 period january 1990 tofebruary 1991 said period defendanton behalf lfb requested plaintiff toprovide professional service lfb 3 said period plaintiffperformed professional service requested bythe defendant expended money lfb sbehalf defendant behalf thedefendant request 4 plaintiff subsequently renderedaccounts defendant lfb australiain respect said provision service andexpenditure money particular whereof follows date amount27 04 90 3 698 5029 05 90 2 285 0017 08 90 2 038 0019 10 90 2 406 6026 10 90 5 914 5630 11 90 616 7031 12 90 1 187 0021 02 91 2 355 90total 20 502 265 amount charged therelevant date fair reasonable theservices performed 6 plaintiff received 6 985 70in part payment amount outstanding 7 letter 24 may 1991 theplaintiff defendant plaintiffdemanded payment outstanding amount 8 company director hasfailed neglected refused pay saidoutstanding sum part plaintiff 9 time debt referredto paragraph 4 hereof incurred thecompany reasonable ground expectthat company would able pay ofits debt including company debt theplaintiff became due 10 premise defendant isliable plaintiff respect thecompany debt referred paragraph 4 hereof 11 despite demand defendant hasfailed neglected refused pay theplaintiff outstanding amount thirteenthousand five hundred sixteen dollar andfifty six cent 13 516 56 part thereof 6 judgment debtor filed entry appearance defence 19 november 1991 wherein admitted director lfb australia pty ltd admitted company incurred debt solicitor 5 april 1990 sum 750 00 debt pleaded paid 1 187 00 2 january 1991 judgment debtor pleaded time debt incurred reasonable ground expect company would able pay debt became due expressly denied liability 13 516 56 claimed 7 9 december 1991 solicitor filed judgment summons support summons solicitor filed affidavit peta gwen stilgoe stated far presently relevant 5 period january 1990 tofebruary 1991 defendant behalf lfbaustralia pty ltd lfb requested theplaintiff provide professional service tothe said lfb 6 said period theplaintiff performed professional servicesrequested defendant expended monieson behalf lfb defendant thedefendant request 7 plaintiff subsequently renderedaccounts defendant company lfbin respect work performed monies expendedreferred last preceding paragraph particular said account follows date amount27 04 90 3 698 5029 05 90 2 285 0027 08 90 2 038 0019 10 90 2 406 6026 10 90 5 940 5630 11 90 616 7031 12 90 1 187 0021 02 91 2 355 90 20 502 268 produced shown andmarked letter annexed thismy affidavit true correct copy theaccounts rendered plaintiff thedefendant believe account renderedare fair reasonable circumstance 9 plaintiff received 6985 70received part payment amountoutstanding outstanding debt owed thedefendant plaintiff therefore sumof 13 516 56 10 purpose summaryjudgment application plaintiff seek toenter judgment amount thirteenthousand five hundred sixteen dollar andfifty six cent 13 516 56 claimed theplaint particularised therein 11 belief immediately thetime debt referred paragraph 7 hereofwere incurred defendant would hadreasonable ground expect companywould able pay debt andwhen became due 12 belief defence tothis action entry appearance anddefence given purpose delay 8 attached affidavit copy account dated 27 march 1990 29 may 1990 17 august 1990 19 october 1990 26 october 1990 30 november 1990 2 january 1991 21 february 1991 3 january 1992 judgment debtor appear matter adjourned 10 january 1992 judgment debtor appear judgment entered solicitor sum 13 516 56 claim 1 158 05 cost 342 17 interest giving total 15 016 78 9 judgment debtor deposes 8 january 1992 executed affidavit merit defence faxed clerk court brisbane judgment debtor living western australia faxed material solicitor 9 january 1992 exhibited facsimile journal transmission printout support contention affidavit forwarded magistrate court exhibited copy notification australian security commission dated 29 november 1991 de registration action discontinued lfb australia pty ltd deposed company lfb australia pty ltd continued operate date affidavit also deposed affidavit account 27 april 1990 29 may 1990 27 august 1990 19 october 1990 30 november 1990 21 february 1991 related work carried solicitor fremantle slipway ltd relation corporate structure lease documentation license agreement fremantle port authority likewise claimed account 26 october 1990 31 december 1990 related work performed fremantle slipway ltd 10 10 february 1992 bankruptcy notice issued 11 letter dated 21 february 1992 messrs friedman lurie barrister solicitor perth wrote petitioning creditor behalf judgment debtor enquiring judgment obtained face judgment debtor material forwarded magistrate court letter included following upon receipt notice client inquiredagain clerk relevant magistratescourt judgment granted againsthim matter advised thatthe affidavit forwarded thecourt presented court ourclient process preparingdocumentation enable apply set aside judgment 12 24 february 1992 petitioning creditor wrote judgment debtor solicitor said inter alia judgment summons heard 3 january1992 client affidavit brought tothe attention court counsel called abuse occur client affidavit noted themagistrate placed court file mr fernicola confirms telephoneconversation occurred 21 january 1992 yourclient objection plaint noted however undertaking given mrfernicola investigate client sobjections mr fernicola stated wouldraise objection partnerresponsible advise partner yourclient claim set aside judgment client desirous setting aside thejudgments entered require hisapplication affidavit support theapplication filed served upon u bymonday 9 march 1992 failing filethe creditor petition 13 2 march 1992 magistrate court brisbane received application set aside judgment application comply court form blank copy form sent court judgment debtor filled returned done new form filed 13 march 1992 10 march 1992 petitioning creditor presented bankruptcy petition 14 application set aside judgment heard 8 may 1992 application opposed petitioning creditor petitioning creditor argued outset magistrate jurisdiction set judgment aside regularly entered determination judgment summons magistrate adjourned application 11 may 1992 judgment debtor contended judgment regularly entered affidavit placed magistrate 9 january 1992 adjournment enable contention investigated 11 may 1992 judgment debtor application dismissed magistrate concluded reason opinion submissionfrom mr hackett would come within theterm irregularity non considerationof defendant affidavit brothermagistrate mr webster seems commonground affidavit received theregistry plaintiff note thefollowing affidavit mr fernicola however willing preparedto take notice defendant saffidavit representativeappeared behalf defendant toread affidavit theaffidavit filed accordance withthe rule magistrate court affidavit mr fernicola onlyfiled morning gave mr hackett theopportunity investigating assertion butthe offer eventually declined matter formally reading affidavit isreferred paragraph 650 4 morley andmartin work queensland magistratescourts whilst wish sit judgmentof another magistrate decision would saywith respect mr webster clearly correct see point would raise thequestion irregularity application dismissed 15 whether position taken magistrate correct put one side fact remains never consideration whether defence merit regard fact deposed affidavit material provided magistrate court prior application summary judgment original attempt defend action application set aside judgment dismissed non compliance court rule merit 16 discretion court go behind judgment requires substantial reason questioning whether debt truth reality owing judgment creditor corney v brien 1951 hca 31 1951 84 clr 343at 358 wren v mahoney 1972 hca 5 1972 126 clr 212at 225 v j removal ex parte earl bn 963 1985 pincus j unreported 21 6 85 7 david ex parte lahood 1979 27 alr 306at 307 reason court readily go behind default judgment adjudication merit exists bona fide allegation real debt lay behind judgment petrie v redmond 1942 13 abc 44at 49 corney v brien 347 357 358 vojnovski 1970 alr 355at 359 oliveri v stafford 1989 24 fcr 413 422 reasoning applicable present case although default judgment one never subject adjudication merit one judgment debtor attempted obtain hearing merit magistrate court 17 judgment debtor raise three matter contends would justify going behind judgment basis substantial reason questioning whether truth reality debt due petitioning creditor 18 first debt incurred company fremantle slipway ltd lfb australia pty ltd 19 second even petitioning creditor retained lfb australia pty ltd solicitor section 8 cost act 1867 qld barred bringing suit company solicitor failed deliver bill cost form contemplated section consequence submitted petitioning creditor cause action section 592 corporation law judgment debtor 20 third evidence lfb australia pty ltd retained solicitor existed immediately time debt incurred company reasonable ground expect either company able pay debt become payable section 592 1 b company incurs debt able pay debt become due section 592 1 b ii submitted lfb australia pty ltd company section 592 corporation law applied 21 annexed affidavit mr michael hawkins filed behalf petitioning creditor two letter touch upon liability fremantle slipway ltd legal cost incurred first letter written 24 january 1991 m julie le franc director lfb australia pty ltd stated part relation account outstanding inrespect fremantle port lease advisethat file opened name offremantle slipway limited continues tocarry name instruction thedirectors fremantle slipway limited wedirected account lfb australia pty ltdwhom said would pay account asthe manager would claim cost fortax purpose management fee receivedby fremantle slipway limited youare aware lfb continued refuse paymentof account accordingly theright pursue non payment accountagainst client fremantle slipway limited instructing party 22 second letter dated 21 january 1992 secretary fremantle slipway ltd l f b australia pty ltd letter stated dear sir refer letter 15 january 1992requesting u forward office allproperty company including minutebook member register would aware outstandingaccounts owed either company firm arepaid full firm continue toexercise solicitor lien file andtheir content accordingly outstanding cost arepaid cheerfully forward allfiles content faithfully 23 13 may 1992 petitioning creditor filed leave affidavit jose fernicola articled clerk employ petitioning creditor exhibited affidavit notice demand section 460 2 corporation law directed lfb australia pty ltd mr fernicola deposed notice forwarded company 24 may 1991 notice amount 10 493 26 28 may 1992 affidavit mr fernicola filed exhibited notice demand company claiming amount 13 516 56 mr fernicola deposes notice forwarded company 24 may 1991 difference amount claimed 3 023 30 24 perusal copy memorandum fee correspondence attached affidavit hawkins show matter entitled corporate structure identified 468616 hawkins matter entitled fremantle port lease identified 500982 hawkins basis account identified two group corporate structure account date 27 march 1990amount 3698 50for interim account professional cost outlay ii date 29 may 1990amount 2285 00for interim account professional fee outlay iii date 26 october 1990amount 5914 56for final account professional cost andincidental acting behalf inthis matter since 29 may 1990 includingthe drafting memorandum andarticles association fremantleslipways limited attending lodging andpreparation document necessary toconvert status company ano liability company limited comapny effecting change name preparingall documentation necessary issueshares discount amend sameas necessary numerours sic attendance commissioner forcorporate affair relation thestatus application care andconsideration generally iv date 2 january 1991amount 1187 00for interim account professional fee outlay v date 21 february 1991amount 2355 90for interim account account period 1 january 1991 to20 february 1991to professional fee outlay b fremantle port lease account date 17 august 1990amount 2038 00for interim account account period including17 august 1990to professional cost andincidental acting behalf inrelation matter includingreceiving preliminary instruction intelephone conversation toperusing lease documentation andpreparing various letter advice tocommunicating solicitor theport authority generally outlay ii date 19 october 1990amount 2406 60for final account professional cost andincidental acting behalfincluding receiving instructionsfrom 17th august 1990 toattending settling term ofthe lease jetty structure licenceagreement seabed licence agreement tonegotiating term fremantle portauthority corresponding thesolicitors fremantle portauthority acting behalfgenerally relation fremantleport lease outlay iii date 30 november 1990amount 616 70for final account professional fee andincidental acting behalf sinceour last account finalising thelease documentation generally outlay 25 difference amount two notice demand section 460 corporation law served lfb australia pty ltd ln 24 may 1991 represents total fremantle port lease account 19 october 1990 30 november 1990 26 fremantle slipway limited incorporated public company queensland 20 april 1990 name mine mining nl changed name fremantle slipway limited 2 october 1990 incorporation liability company name mine mining nl procured petitioning creditor appears letter dated 26 march 1990 mr hawkins addressed mr ian beckwith m julie le francdirectorslfb australia pty ltd po box 10north fremantle 6159 27 regard letter mr hawkins 24 january 1991 m le franc letter fremantle slipway limited 21 january 1992 file coding assigned fremantle port lease matter difference two notice reasonable conclude fremantle slipway limited client giving instruction matter party liable pay account account total 5 061 30 28 total account claimed plaint 20 502 26 fremantle port lease account excluded remains account value 15 440 96 plaint pleads 6 985 70 paid relation outstanding account payment reflected section 460 demand 10 493 26 accordingly would appear made account least two fremantle port lease account material impossible reconcile payment particular account rendered period credited sum 15 440 96 leaf dispute 8 455 26 29 defence filed magistrate court 19 november 1991 judgment debtor admits lfb australia pty ltd incur debt 1 187 00 reflected account dated 2 january 1991 paid pleaded co director refused sign cheque notwithstanding money available pay debt also pleads another account 5 april 1990 sum 750 00 pleads paid otherwise denies lfb australia pty ltd incurred debt claimed 30 opinion magistrate considered material debtor affidavit would revealed contested question fact entitled debtor defend monies claimed additional material filed court demonstrates real question whether lfb australia pty ltd liable petitioning creditor whole substantial part sum claimed whether incorporation fremantle slipway limited ultimately came called company liable change corporate structure obtaining fremantle port lease matter incidental thereto reason alone would prepared exercise discretion go behind judgment 31 turn second ground argued judgment debtor section 22 cost act 1867 qld provides bill delivered 6 7 vic c 73 37 attorney executor administrator orassignee attorney trustee hisestate shall commence maintain action orsuit recovery fee charge ordisbursements business done suchattorney expiration one month aftersuch attorney executor administrator orassignee attorney shall deliveredunto party charged therewith sentby post left counting houseoffice business dwelling house lastknown place abode bill fee chargesand disbursement bill shall besubscribed attorney properhandwriting case partnership byany partner either name orwith name style partnership orby executor administrator assignee ofsuch attorney trustee estate 32 interim account final account dated 27 march 1990 29 may 1990 2 january 1992 21 february 1992 contain detail work performed rather lump sum claimed item professional fee final account interim account 17 august 1990 narrative form description work done lump sum claimed 33 account interim final form sufficient constitute bill cost purpose section 22 cost act qld currie or v robinson 1968 qwn 25 douglas j considered adequacy narrative bill purpose section honour said page 51 52 bill cost exhibited firstdefendant affidavit consists astatement account contains claim forvarious lump sum respect individualmatters dealt plaintiff thedefendants behalf also contains anitemized account outlay show variouspayments made defendant time totime lump sum amount shown thestatement account itemised inother sheet bill cost sheet orsheets bill cost devoted toevery item however sheet show thevarious service performed plaintiff forthe defendant itemized manner factuallybut without allocation cost anyparticular action taken plaintiff thelump sum shown first sheet thestatement account every case appearsopposite itemized list sheet bill bill fee charge anddisbursements contemplated 22 ofthe cost act 1867 similar matterwas dealt mann j case ofmalleson stewart stawell nankivell v williams 1930 viclawrp 62 1930 vlr 410 nobetter adopt phraseology action brought upon thisbill point raised mr duffy forthe defendant billof fee charge disbursement iscontemplated sec 92 supremecourt act 1928 referred toseveral authority supporting thatposition authority show thecourts repeatedly held bill ofcosts must contain detail willenable client make mind onthe subject taxation enablethose advising advise himeffectively whether taxation isdesirable present bill unlike bill formed thesubject reported case theservices rendered set incomplete detail lack thecarrying money column theappropriate charge thosedetails sum carriedout actual outgoings theend item relating theparticular matter lump sum varyingamounts indicated examined carefully authoritiescited also case inparticular case pomeroy andtanner 1897 1 ch 284 pomeroyand tanner 2 1897 76 lt 149 tosee whether circumstance ihave referred setting detailsof service enable todistinguish case thoseauthorities come theconclusion cannot bedistinguished regard thereasons decision beensupported result think accordance law laiddown bill bill iscontemplated sec 2 nottherefore apparently one theplaintiffs entitled sue 34 approach requirement section 22 cost act qld taken ryan j flower hart bill cost 1991 2 qdr 20at 24 dowsett j walsh halligan douglas bill cost 1990 1 qdr 288at 293 294 35 reason behind requirement client receives bill cost solicitor sufficient detail enable client obtain independent advice whether charge proper work claimed whether taxation desirable bare claim lump sum professinal cost professional fee totally inadequate likewise narrative bill may give description work done insufficient enable judgment made quantum claimed whether taxation desirable 36 petitioning creditor relied heavily decision walsh halligan douglas bill cost contend account form tendered adequate purpose section 22 cost act qld however bill cost regarded sufficient walsh halligan douglas bill cost agreed basis charging per hour bill rendered summarised number hour spent professional work particularised applied agreed charge rate work case 37 assumption lfb australia pty ltd proper client failure render bill cost proper form mean virtue section 22 cost act qld petitioning creditor could sue company fee claimed judgment would set aside currie v robinson 52 petitioning creditor would however liberty deliver bill cost proper form currie v robinson 52 raise question whether judgment debtor could sued statutory cause action created section 592 corporation law lfb australia pty ltd debtor director could sued petitioning creditor operation section 229 cost act qld 38 section 592 corporation law far presently relevant provides 592 1 company incurred debt b immediately time debt incurred reasonable ground expect company willnot able pay debt become due ii reasonable ground expect thecompany incurs debt able pay allits debt become due c company time debtwas incurred becomes later time company section applies person director company ortook part management company atthe time debt incurred contravenesthis subsection company personor 2 person thosepersons jointly severally liable thepayment debt 592 3 proceeding may brought undersubsection 1 recovery debtwhether person theproceedings brought person convicted offence undersubsection 1 respect incurring debt 592 4 proceeding brought undersubsection 1 recovery debt theliability person subsection inrespect debt may established thebalance probability 39 central statutory cause action arising section 592 company incurred debt instant case four possibility assuming lfb australia pty ltd retained solicitor work first company incurred debt date retainer second work done third account rendered fourth expiration one month delivery bill cost drawn delivered accordance section 22 cost act qld 40 petitioning creditor submitted debt incurred purpose section 592 corporation law work done account rendered authority cited support contention judgment debtor submitted debt incurred debt owed company absence bill cost complied cost act qld authority contention cited 41 operation english equivalent section 22 cost act 1867 qld considered court appeal coburn v colledge 1897 1 qb 702 court appeal also consideration question cause action solicitor sue fee complete lord esher mr said 705 706 action brought plaintiff inrespect work done solicitor inthe case person solicitor andwho work another person requeston term paid unless special term theagreement contrary right paymentarises soon work done andthereupon bring action enactment existed regard toactions solicitor cost asolicitor stood position anyother person done work another athis request could sue soon workwhich retained finished without delivered signed bill ofcosts waiting time deliveryof bill extent thestatute alter right solicitor sucha case alteration made itaffect alter cause action takesaway doubt right solicitor tobring action directly work done butit take away right payment forit cause action statuteof limitation affect rightto payment affect procedure forenforcing event dispute refusalto pay similarly think 37 thesolicitors act 1843 deal rightof solicitor procedure toenforce right provide nosolicitor shall cause action inrespect cost right paidtill expiration month hisdelivering signed bill cost merelythat shall commence maintain anyaction recovery fee charge ordisbursements assumes hehas right paid fee charge anddisbursements provides shall notbring action enforce right untilcertain preliminary requirement beensatisfied solicitor modeof enforcing right action thesection seem interfere forinstance money client hishands entrusted specificpurpose nothing section toprevent retaining amount due outof money true constructionof section touch cause ofaction remedy enforcing lordship continued 707 plaintiff alleges fact ifnot traversed would prima facie entitle torecover think make cause ofaction applying case like thepresent plaintiff completed thework old course pleading alludedto brother lope could broughthis action declaring money payable workand labour done request defendant defendant made anaswer thatclaim would entitled recover defendant could demurred theplaintiff declaration would shewna perfectly good cause action unlessthe defendant set something defeat theclaim action would maintainable therefore soon solicitor done thework could maintained cause ofaction work labour defendant mightplead bill cost delivered would way answer acase constituted good cause action reason think cause ofaction case use language thestatute anne given accrued fallen orcome moment work theplaintiff retained completed lope chitty llj expressed similar view 708 709 710 711 respectively 42 follows depending upon term retainer company would liable cost work performed prior agreement render interim account upon completion work retainer entire contract rendering bill cost accordance section 22 cost act qld necessary step liability would arise debt thereby incurred becomes enforceable action suit upon expiration one month delivery bill cost accordance section 22 43 judgment debtor submitted section 22 cost act qld would preclude action judgment creditor judgment debtor bill cost accordance section delivered period one month expired submission without benefit authority 44 effect section 592 1 corporation law director company requirement section otherwise met becomes jointly severally liable company debt whereas section 22 cost act qld operates postpone petitioning creditor bringing action company delivery required bill cost expiration one month section term operate respect statutory cause action petitioning creditor may director section 22 cost act qld operates solicitor client available third party recognised lawler 1878 4 vlr 8 ipand molesworth j rejected contention made guarantor client liability sought take advantage victorian equivalent section 22 cost act qld 45 petitioning creditor satisfy condition section 592 1 corporation law judgment debtor absence making defence section 592 2 would liable sued judgment joint several obligation upon completion work accordance term retainer 46 turn third ground argued judgment creditor 47 second element statutory cause action established debt incurred particular time immediately time either condition specified section 592 1 b ii existed 48 rema industry service pty ltd v coad 1992 fca 114 1992 10 aclc 530 lockhart j said time debt incurred varyfrom case case depending principally uponthe term agreement party express implied 49 respect agree observation decision respect sale good held debt incurred upon delivery good rema industry taylor v darke 1992 fca 428 1992 10 aclc 1516 hussein v good 1990 8 aclc 390and group four industry pty ltd v brosnan 1991 9 aclc 1 181 example explicable basis absence agreement pre pay price payment day certain delivery taken property pass seller action debt price limited event refusal take delivery action damage martin v hogan 1917 hca 75 1917 24 clr 234at 261 262 plaimar ltd v water trading co ltd 1945 hca 34 1945 72 clr 304at 318 minister supply development v serviceman co operative joinery manufacturer ltd 1951 hca 15 1957 82 clr 621at 636 642 50 hawkins v bank china 1992 10 aclc 588the new south wale court appeal determine granting guarantee constituted incurring debt within section 592 1 gleeson cj said 595 debt capable including contingentliability word used sense s291 thecompanies act 1961 referred debt payable contingency thatexpression involve contradiction interms dictionary define debt aliability obligation pay rendersomething liability may conditionalas well present absolute williams v harding 1866 lr 1 hl 9 issue asto effect statute dealing withinsolvency made debt incurred anon trader insufficient found adjudication ofbankruptcy unless contracted acertain date debt question casewas liability pay call made jointstock company question whether theappellant debt contracted signedthe deed settlement making shareholder call made held thatthe former case lord cranworth lc said 21 date appellant debtwas executed deed lordchelmsford 24 referred amount thecalls debt appellant antecedently liable similarly word incurs take meaningfrom context apt describe anappropriate case undertaking anengagement pay sum money futuretime even engagement conditional andthe amount involved uncertain isaccepted debt may include contingentdebt obstacle conclusionthat present context debt may betaken incurred companyentered contract subjected itselfto conditional unavoidable obligation topay sum money future time issuch case kirby p sheller ja expressed similar view 51 russell halpern nominee pty ltd v martin 1986 4 aclc 393 full court supreme court western australia consideration question debt incurred purpose section 556 1 company western australia code section predecessor section 592 1 corporation law present purpose term lease real property entered company submitted court debt incurred every rent day throughout term burt cj smith j agreed rejected submission honour said 396 whatever expression incurs debt mightmean clearly descriptive act whichwhen done company statedcircumstances expose director companyand person took part management ofthe company debt incurred sic whenthe act done criminal liability theincurring debt company thestated circumstance act whichconstitutes offence created thesubsection act done particularand identifiable point time sic thedebt incurred case term lease expired andwhen landlord holding tenant theagreement tenant whether inoccupation leased premise becomes liable pay rent agreed rentdays think relevant act onthe part tenant beyond entering intothe lease first instance beidentified thinkthat said tenant company incurs debt within meaning thesubsection whenever present liability payrent created tenant covenant thelease operating upon passage time tohold otherwise would say companywhen respect financially sound toenter lease term year atsome time thereafter reason couldnot anticipated fall bad timesand unable pay debt directorswould thereafter every rent day withinthe remainder term guilty anoffence reason rent day thecompany incurs debt unable accept 52 essential consideration led decision case upon execution document company subjected conditional unavoidable obligation pay sum money future time debt incurred company entering agreement created unavoidable obligation 53 although term consideration high court shapowloff v dunn 1981 hca 21 1981 148 clr 72was contracting debt point made stephen j gibbs cj murphy aickin jj agreed stockbroker engaged buy share client debt contracted date broker bought share 78 time client became liable indemnify broker purchase price liability contingent upon seller broker delivering share script shapowloff debt contracted purchase order given time order executed lay within power client rescind order terminate agency unavoidable obligation pay price action part client may expose client damage breach contract loss opportunity earn commission incurring debt purpose section 54 best evidence basis retainer client petitioning creditor present case contained letter 26 march 1990 director company mr hawkins reviewing work done state 7 accountsas previously discussed rather give youa fright end various matter weagreed prudent send interim account accordingly enclose couple account attention first relation tenderdocumentation incorporated draftpreliminary lease account relationto perusal documentation adviceto second account headed generally corporate structure relation ourgeneral advice drafting necessaryloan security documentation drafting ofthe management agreement advice inrelation lfb interest gladstone slipwaysand dealing friend inmooloolaba mostly preparation ourbrief counsel meeting andpreparing necessary subsequent documentation advice firm tend enforce strictpayment account please beeither surprised offended becontacted event late payment 55 putting aside moment identity party retainer find retainer contained agreement client make future periodic payment conditional upon petitioning creditor performing work subject retainer work done required act part company entitle petitioning creditor payment cost work liquidated sum position different faced seller generally delivery required present case question damage arose right payment conditioned upon performance work term retainer client incurred debt due petitioning creditor commenced perform work subject retainer point client became unavoidably liable proper cost work amount liability increased thereafter work done 56 magistrate court hearing summary judgment issue arising section 592 1 corporation law going petitioning creditor right recover section entry appearance defence put issue support application filed affidavit peta gwen stilgoe relevant part set earlier reason besides swearing issue paragraph 11 material address relevant time debt incurred reference particular date consider paragraph 11 mean date account particularised paragraph 7 relevant date purpose section 592 1 incorrect test applied evidence magistrate court would enabled magistrate form objective view requirement section 592 1 b january 1990 m stilgoe deposed solicitor commenced work central cause action pleaded petitioning creditor plaint 57 opinion basis first third ground advanced judgment debtor substantial reason questioning whether debt truth fact owing petitioning creditor accordingly propose exercise discretion go behind judgment 58 court decides go behind judgment whole matter open ultimate burden proof rest person claiming creditor prove existence debt due creditor corney v brien 358 olivieri v stafford 423 424 59 satisfied original retainer solicitor lfb australia pty ltd satisfied term retainer devise implement corporate structure would enable corporate entity obtain lease fremantle port authority together necessary permit license operate commercial enterprise site also part instruction lfb australia pty ltd manager commercial enterprise position secured arrangement devised solicitor retainer given incorporation fremantle slipway limited original form liability company work undertaken done instruction lfb australia pty ltd letter mr hawkins director lfb australia pty ltd 26 march 1990 sustains conclusion 60 question remains agreed occurred petitioning creditor lfb australia pty ltd fremantle slipway limited incorporation liability legal fee work done solicitor covering step taken within corporate structure outside achieve commercial end structure intended serve 61 incorporation fremantle slipway limited 20 april 1990 appears letter mr hawkins dated 24 january 1991 petitioning creditor acted instruction director company eg relation fremantle port lease treated company client liable cost work done reasonable infer situation limited instruction relating lease mr hawkins prepared draft management agreement party fremantle slipway limited lfb australia pty ltd copy draft agreement exhibited mr hawkins affidavit clause 20 agreement whether transaction contemplated agreement came pas party pay fee expense incidental negotiation preparation execution agreement including fee disbursement lawyer accountant suggestion evidence solicitor acted fremantle slipway limited period covered account rendered petitioning creditor lfb australia pty ltd authority bind fremantle slipway limited see clause 4 draft agreement clear agreement executed party although evidence date occurred 62 although preparation documentation contemplated corporate structure mr hawkins devised would come within term original retainer implementation step incorporation required instruction fremantle slipway limited step falling latter category included registration office commissioner corporate affair name change change public company status alteration memo article association issuing share final account issued 26 october 1990 show work category done period 29 may 26 october 1990 appears letter accompanying account 26 october 1990 petitioning creditor treated work finalisation work contemplated original retainer hand lfb australia pty ltd treated cost work done incorporation fremantle slipway limited wholly partly liability company letter lfb australia pty ltd dated 30 july 1990 petitioning creditor headed account due lfb australia pty ltd fremantle slipway ltd letter refers cheque sent solicitor account sent solicitor prior 30 july 1990 account march may 1990 relating corporate structure whether cheque lfb australia pty ltd alone cheque fremantle slipway limited clear lfb australia pty ltd contending work charged properly liability fremantle slipway limited alone contention consistent term management agreement reality incorporation fremantle slipway limited 63 account 27 march 1990 find liability lfb australia pty ltd much account 29 may 1990 represented work performed including incorporation liability company 20 april 1990 thereafter much work performed instruction fremantle slipway limited contained account 29 may 1990 26 october 1990 properly fell within term original retainer liability lfb australia pty ltd work account account relating fremantle port lease reference 500982 hawkins performed instruction fremantle slipway limited sole liability company 64 regard way account drawn possible isolate value work contained may october 1990 account lfb australia pty ltd liable 65 account dated 2 january 1991 1 187 00 admitted judgment debtor entry appearance defence debt incurred lfb australia pty ltd although subsequently denies 6 december 1990 judgment debtor letterhead lfb australia pty ltd wrote mr hawkins letter part state dear michael believe time open new filetitled beckwith l f b australia position fellow directorjj le franc reached situation wherebythe management agreeent sic thiscompany fremantle slipway particularly inrelation performance item 3 untenable furthermore 3 12 90 le franc refusedto sign cheque relation outstandingaccounts payable company fremantle slipway ltd michael appears best onlycourse action companywound management agreement assignedto someone preferably thebusiness completing project notdenegrated sic action fellow director could please advise earliest thepossible implication action given thecharge julie company also would consider assignment thelease went assingment sic would processed view companieshaving agree assignment look forward early response 66 regard admission content letter probability january 1991 account relates work undertaken consequence letter find lfb australia pty ltd liable account 67 possible make finding nature work claimed account 21 february 1991 whose instruction undertaken account devoid detail material filed petitioning creditor assist 24 january 1991 letter m julie le franc director lfb australia pty ltd petitioning creditor mr hawkins gave m le franc certain advice shareholding gladstone slipway limited mooloolaba spit marine pty ltd fremantle slipway limited also included copy proxy relation meeting shareholder fremantle slipway limited held 25 january 1991 m le franc whilst director lfb australia pty ltd also way associated fremantle slipway limited 10 december 1990 letterhead company prima facie behalf advised petitioning creditor account would paid possible advice given m le franc director lfb australia pty ltd also possible advice given capacity fremantle slipway limited relation upcoming shareholder meeting also possible advice form part work subject account 21 february 1991 likewise possible work subject account flowed letter judgment debtor 6 december 1990 set evidence take matter beyond range possibility 68 attempt made material filed petitioning creditor segregate separate affair lfb australia pty ltd fremantle slipway limited particularise sufficient detail work done term nature date value hold work performed account 21 february 1991 wholly partly instruction lfb australia pty ltd would merely speculate 69 account satisfied relate work performed instruction lfb australia pty ltd 27 march 1990 3 698 502 january 1991 1 187 00 4 885 5070 work done instruction lfb australia pty ltd included account may possibly october 1990 however reason stated work cannot identified valued notwithstanding satisfied lfb australia pty ltd liable pay 71 material filed magistrate court petitioning creditor acknowledges payment sum 6 985 70 however detail given date date payment received respect account tendered payment 72 submission addressed either side payment sum 6 985 70 ought treated 73 lockhart j said walsh ex parte deputy commissioner taxation 1982 fca 88 1982 42 alr 727 728 729 debtor owes two debt creditor isentitled appropriate payment makesto creditor one debt rather theother omits creditor maymake appropriation neither make anyappropriation law appropriates paymentto earlier debt 74 evidence appropriation payment payer payment particular account save crediting 467 00 held trust account memo fee 26 october 1990 evidence petitioning creditor consciously appropriated payment particular account conformity principle stated appropriation payment would discharge debt due march may 1990 account inference drawn fact petitioning creditor sued balance due account must setting credit debit petitioning creditor prima facie appropriated credit according priority debt debit side discharge earlier debt order creation sherry case 1884 25 chd 692at 702 deeley v lloyd bank 1912 ac 756at 783 whichever approach taken effect payment operated discharge indebtedness company extent 5 983 50 total first two account charged lfb australia pty ltd unnecessary determine whether balance crediting 5 983 50 ought credited account 26 october 1990 save 467 00 earlier account fremantle port lease petitioning creditor treated part striking balance claimed 75 account satisfied evidence incurred lfb australia pty ltd january 1991 account 1 187 00 account receive benefit payment made payment probability exhausted set prior account true liability lfb australia pty ltd account exposed 76 even satisfied account account payable fremantle slipway limited relation fremantle port lease payable lfb australia pty ltd evidence financial situation company objective finding could made immediately debt incurred reasonable ground expect company would able pay debt became due evidence petitioning creditor commenced work retainer january 1990 first suggestion material difficulty paying account july 1990 cheque met upon presentation letter 30 july 1990 lfb australia pty ltd asserts place financing arrangement intended draw make payment however according letter access fund dependent upon fremantle slipway limited registered western australia fremantle port lease issuing contemplated would occurred time basis draw conclusion january 1990 would reasonable expect matter would progressed stage access fund enable debt including petitioning creditor debt paid fell due 77 submitted petitioning creditor evidence necessary support finding lfb australia pty ltd unable pay debt contained exhibit l p u affidavit mr hawkins 78 exhibit letter 30 july 1990 company petitioning creditor explaining cheque met presentation explaining access substantial funding dependent upon port lease obtained fremantle slipway limited registered western australia 79 exhibit l copy facsimile letterhead fremantle slipway limited dated 10 december 1990 m le franc mr hawkins letter part say michael sorry account pendingpayment believe ian haveabout 4 000 5 000 left bank accountto see u final negotiation case bit reluctantto pay bill ian told car computer overdraft account usedfor company use paid month account brought todate need toreconcile financial book amabreast financial commitment account paid soon furtherfunds become available toodistant future appreciate understanding patience 80 exhibit copy memorandum dated 26 february 1991 m le franc paul summer fatharly summer memorandum read discussed please find enclosed list ofcreditors hand please bear inmind list incomplete telecom fsl office 701 33northmore hale davy leake 9 469 16 includes stamp duty power power 11 942 86ingrilli associate 325 00elite secretarial service 353 70longley associate 3 600 00fremantle herald 112 00kpmg peat marwick 9 188 94snap printing 198 10butterworth 116 00port harbour consultant 10 000 00 46 007 09 81 evidence circumstance surrounding creation list whose creditor list refers evidence copy list came possession petitioning creditor 82 exhibit p copy letter m le franc mr hawkins dated 9 june 1991 letter written response letter demand petitioning creditor claiming unpaid fee personally m le franc took objection letter concludes discussion company level bedirected mr jim hodgesmanagerfremantle slipway ltdc 5 10 shield crescentbooragoon wa 6154po box 206kalamunda 6076 83 exhibit u copy notice intention de register company published australian newspaper m le franc two company named notice fremantle slipway ltd lfb australia pty ltd notice dated 20 september 1991 state part 3 company operationor carrying business 4 date application thecompanies asset 84 petitioning creditor also point correspondence petitioning creditor asking payment fee particularly late 1990 early 1991 85 exhibit l p face show m le franc treating account properly payable fremantle slipway limited speaking affair company 86 exhibit term relate lfb australia pty ltd standing unexplained carry evidential value 87 exhibit u relates period long delivery last account february 1991 material notification australian security commission de registration proceed 88 cannot overlooked 6 985 70 fact paid inferentially 30 july 1990 first cheque returned unpaid 89 stated evidence relied upon support finding reasonable expectation january 1990 lfb australia pty ltd would pay debt fell due material relied upon petitioning creditor relates financial position fremantle slipway limited lfb australia pty ltd far material reveals anything show november december 1990 fremantle slipway limited unable meet debt fell due 90 follows petitioning fails make lfb australia pty ltd january 1990 essential element necessary cause action judgment debtor section 592 corporation law 91 reason satisfied petitioning creditor truth reality debt due judgment debtor sum 1 500 00 accordingly order petition dismissed reason bankruptcy notice set aside petitioning creditor must pay judgment debtor cost incidental petition application set aside bankruptcy notice taxed agreed court order 1 petition dismissed 2 bankruptcy notice issued 17 february 1992 setaside 3 petitioning creditor pay judgment debtor costsof incidental petition application setaside bankruptcy notice taxed agreed

Downer EDI Rail Pty Ltd [2013] FWCA 9688 (10 December 2013).txt

downer edi rail pty ltd 2013 fwca 9688 10 december 2013 2013 fwca 9688fair work commissiondecisionfair work act 2009s 185 application approval single enterprise agreementdowner edi rail pty ltd ag2013 11126 downer rail cardiff facility enterprise agreement 2013 2017manufacturing associated industriessenior deputy president drakesydney 10 december 2013application approval downer edi rail cardiff facility enterprise agreement 2013 2017 1 application made approval enterprise agreement known thedowner edi rail cardiff facility enterprise agreement 2013 2017 agreement application made pursuant tos185of thefair work act 2009 act made downer edi rail pty ltd agreement single enterprise agreement 2 agreement lodged within 14 day made 3 satisfied requirement ofss186 187and188of act relevant application approval met 4 automotive food metal engineering printing kindred industry union bargaining representative agreement given notice unders183of act want agreement cover accordance withs201 2 act note agreement cover organisation 5 agreement approved accordance withs54of act operate 17 december 2013 nominal expiry date agreement 12 october 2017 senior deputy presidentprinted authority commonwealth government printer price code j ae405795pr545534

Australian Prudential Regulation Authority v TMeffect Pty Ltd (No 2) [2018] FCA 678 (17 May 2018).txt

australian prudential regulation authority v tmeffect pty ltd 2 2018 fca 678 17 may 2018 last updated 17 may 2018federal court australiaaustralian prudential regulation authority v tmeffect pty ltd 2 2018 fca 678appeal tmeffect pty limited v australian prudential regulation authority administrative appeal tribunal 2016 3643 22 june 2017 file number nsd 1206 2017judge perry jdate judgment 17 may 2018legislation administrative appeal tribunal act 1975 cth 44treasury law amendment banking measure 1 act 2018 cth federal court rule 2011rr 1 34 4 01date hearing 11 december 2017date last submission 10 may 2018registry new south walesdivision general divisionnational practice area administrative constitutional law human rightscategory catchwordsnumber paragraph 8counsel applicant m r c higgins sc mr b k limsolicitor applicant australian prudential regulation authoritycounsel respondent mr j bennettsolicitor respondent harris jones lawyersordersnsd 1206 2017between australian prudential regulation authorityapplicantand tmeffect pty ltdrespondentjudge perry jdate order 17 may 2018the court order decision administrative appeal tribunal made 22 june 2017 set aside respondent pay applicant cost incidental proceeding federal court australia amount agreed failing agreement taxed note entry order dealt inrule 39 32of thefederal court rule 2011 reason judgmentperry j 1 introductionby decision made 22 june 2017 administrative appeal tribunal tribunal set aside decision applicant australian prudential regulation authority apra decision apra confirmed earlier decision pursuant tos 66of thebanking act 1959 cth banking act refusing consent assumption use respondent tmeffect pty limited restricted word bank proposed company name bankrolla result tribunal decision respondent changed name bankrolla pty ltd began operating complementary social medium page using name bankrolla 13 april 2018 made order allowing appeal apra unders 44of theadministrative appeal tribunal act 1975 cth aat act tribunal decision remitting matter differently constituted tribunal reconsideration according law australian prudential regulation authority v tmeffect pty ltd 2018 fca 508 tmeffect 1 time made order party absence agreement file serve submission respect order required give effect reason cost note tmeffect legal representation trial solicitor provided associate notice intention cease act shortly judgment filed following judgment circumstance 13 april 2018 granted leave mr pinter sole director respondent proceed court behalf respondent without lawyer thereby dispensing rule 1 34 withrule 4 01 2 thefederal court rule 2011 cth requiring corporation proceed court lawyer party reached agreement appropriate order cost namely respondent pay applicant cost incidental proceeding federal court australia amount agreed taxed however apra also sought order tribunal decision set aside said necessary avoidance doubt given correspondence party following judgment disclosed disagreement effect court order tribunal decision 2 order made setting aside tribunal decision subsection 44 4 5 aat act confer power court make order think appropriate reason decision including order setting aside tribunal decision remitting matter heard decided apra submits appropriate final order also provide expressly tribunal decision made 22 june 2017 set aside appropriateness order follows finding made intmeffect 1 tribunal decision tainted error law order sought also implicit order already made matter remitted tribunal reconsideration according law regard respondent submission appeared wrongly assume court could exercise discretion permit continued use restricted word bank respondent described limited non trading us pending reconsideration matter tribunal however apra submits court power consent use power vested relevantly tribunal hence order remitting matter tribunal reconsideration respondent also submitted apra ought disclosed amendment tos 66of thebanking act amendment question made schedule 3 thetreasury law amendment banking measure 1 act 2018 cth theamending act relevantly item 4 schedule 3 amending act repealeds 66 2c thebanking actwith effect 5 may 2018 consequently judgment delivered intmeffect 1 consequence amendment decision refuse consent particular person longer decision whichpart vi providing reconsideration review decision made apra thebanking actapplies however suggested repeal retrospective application bear upon respondent circumstance apra submits could impending repeal provision respondent complains impact utility proceeding finally note apra conceded written submission remains respect respondent fact decision apra confirmed undersubsection 51b 3 therefore properly subject review tribunal notwithstanding repeal ofs 66 2c certify preceding eight 8 numbered paragraph true copy reason judgment herein honourable justice perry associate dated 17 may 2018

Bowden v Hales [2001] NTSC 96 (2 November 2001).txt

bowden v hale 2001 ntsc 96 2 november 2001 last updated 20 october 2011bowden v hale 2001 ntsc 96parties james robert bowdenandpeter william halestitle court supreme court northern territoryjurisdiction supreme court northern territory exercising appellate jurisdictionfile ja 69 2000 20001664 delivered 2 november 2001hearing date 15 october 2001judgment mildren jrepresentation counsel appellant littlerespondent g dooleysolicitors appellant j littlerespondent director public prosecutionsjudgment category classification cjudgment id number number page 9in supreme courtof northern territoryof australiaat darwinno ja 69 2000 20001664 bowden v hale 2001 ntsc 96between james robert bowdenappellantand peter william halesrespondentcoram mildren jreasons judgment delivered 2 november 2001 mildren j 1 appellant convicted one count aggravated assault circumstance aggravation adult assaulted child age 16 year learned magistrate imposed partly suspended term imprisonment appellant appeal conviction number ground set notice appeal however may really one ground appeal ground particular ground viz finding guilt unsafe unsatisfactory 2 learned magistrate finding fact follows evening 19 september 2000 13 year old boy called aaron older boy called tim another boy attended appellant home stole reloaded bullet belonging appellant evening aaron stepfather rj became aware theft told aaron get stolen bullet two boy involved following day would take boy bullet appellant return bullet boy would apologise instead following day aaron went appellant caravan alone bullet bag intending return appellant appellant lived caravan darwin caravan park aaron entered annex caravan knocked door appellant answered door aaron said brought bullet back appellant said bring bullet back appellant angry started speaking aaron loud aggressive voice punched aaron twice face knocking ground appellant went next banged aaron head ground floor annex concrete carpet area appellant picked piece concrete tried hit aaron hand missed specific finding happened thereafter according aaron evidence learned magistrate accepted appellant picked pushed annex ran away bleeding nose went amenity block near home wash according rj whose evidence learned magistrate also accepted saw aaron told come inside tell happened rj took photograph aaron injury reported matter police attending police station aaron taken hospital medically examined 3 appellant subsequently interviewed police conducted formal record interview tape recorded appellant also gave evidence trial appellant version cup coffee inside caravan heard noise annex opened door saw aaron standing front doorway holding backpack said heavy asked aaron ammo aaron answer stepped onto step grabbed bag right hand asked aaron several time ammunition aaron answer initially eventually stammered ammo bag lowered ground grabbed one aaron finger process grabbed ear thumb forefinger spun around started push towards doorway aaron started running ran grabbed annex pole right hand appellant heard aaron crash fence outside learned magistrate rejected appellant evidence accepted evidence aaron stepfather 4 difficulty appellant face appeal even version fact unlawfully assaulted aaron assault aggravated fact aaron sixteen year age m little counsel appellant submitted assault force used used reasonably necessary common intercourse life see s187 thecriminal code reject submission authority aware meaning given expression clearly contemplates activity touching someone shoulder get attention minor application force common place harmless accepted community whether go much beyond unnecessary decide clearly opinion grabbing boy finger ear spinning around went beyond force reasonably necessary common intercourse life circumstance case 5 alternatively submitted open learned magistrate find assault excused ground provocation difficulty submission inability find wrongful act insult committed aaron nature likely deprive ordinary person power self control time aaron came appellant caravan appellant unaware ammunition missing bag opened even thought ammunition obvious ought obvious ammunition returned appellant explanation using force boy would answer asked whether ammunition whatever else may said hardly sufficient cause likely deprive ordinary person power self control event evidence appellant deprived self control circumstance appeal conviction must dismissed 6 pointed m little notice appeal amended consent include appeal sentence ground learned stipendiary magistrate erred sentence imposed based erroneous finding fact relating manner extent assault error alleged finding made unsafe unsatisfactory reason advanced relation appeal conviction 7 prepared assume proper basis appeal sentence without deciding question opinion classic case learned magistrate based finding credibility witness clear worship impressed evidence aaron stepfather impressed evidence appellant nevertheless clear even case appellate court may interfere miscarriage justice evidence upon record contains discrepancy display inadequacy tainted otherwise lack probative force way lead appellate court conclude even making full allowance advantage enjoyed magistrate significant possibility innocent person convicted v queen 1994 hca 63 1994 181 clr 487at 494 prepared assume principle apply fact found relation sentence 8 reviewed evidence satisfied evidence prosecution displayed discrepancy inadequacy raise significant possibility worship finding error first point raised related failure prosecutor tender photograph taken rj potentially important evidence may tended confirm rebut evidence given injury sustained aaron result assault factor clearly influenced worship accepting aaron account nature assault apparent transcript prosecutor briefed existence photograph evidence elicited question directed rj learned magistrate rj said photograph yet developed learned magistrate asked prosecutor whether intended get photograph developed make available counsel appellant worship adjourned hearing prosecutor obtain instruction hearing resumed prosecutor informed worship came financial issue rj going bali two month time intended getting film developed cheaper clearly cost developing film borne prosecution however prosecutor said proposed proceed without submission objection raised counsel appellant appears content let matter proceed fashion 9 well established matter entirely prosecutor witness decides call seethe queen v apostilides 1984 hca 38 1984 154 clr 563and consider discretion rest relation evidence crown may call seek tender whether evidence witness kind evidence inapostilides supra 575 court said decision call particular person witness constitute ground setting aside conviction viewed conduct trial taken whole seen give rise miscarriage justice see also comment court pps 577 8 case satisfied miscarriage justice counsel appellant opportunity consider circumstance take instruction infer lack objection protest counsel appellant content allow case proceed without demanding see photograph even suggested photograph would cast doubt upon evidence aaron stepfather photograph developed since hearing counsel appellant sought examine circumstance satisfied miscarriage justice 10 next suggested prosecutor ought called neighbour aaron said heard screaming within caravan evidence prosecuting authority knew possible witness trial evidence person might whether anyone fact heard aaron scream ground made 11 next suggested prosecutor cross examing appellant failed put appellant every aspect aaron evidence nature assault clear appellant evidence denied assault occurred manner alleged rule known rule inbrowne v dunndid require circumstance case point raised learned magistrate correctly disposed prosecutor put appellant cross examination punched aaron face attempted slam lump concrete finger appellant denied allegation obvious prosecutor question whole tenor cross examination challenging appellant evidence put nature cross examination appellant counsel mislead way consequence failed call evidence support appellant case fact appellant call witness support case situation resembles example 3 judgment hunt j inallied pastoral holding pty ltd v federal commissioner taxation 1982 83 44 alr 607at 631 substance submission 12 m little next pointed supposed deficiency evidence led prosecution necessary discus detail evidence referred opinion cast doubt upon whether conclusion reached learned magistrate justified 13 finally m little submitted approach taken learned magistrate deciding reject appellant evidence inconsistency evidence trial told police record interview warranted substance submission conclusion reached learned magistrate open justified 14 circumstance appeal must dismissed

Review Applicant: Christine Dugganvisa Applicant: Agnes Qui Teng Wong IRT Reference: S95_03126 #number 9145 [1997] IRTA 9145 (26 March 1997).txt

review applicant christine dugganvisa applicant agnes qui teng wong irt reference s95 03126 number 9145 1997 irta 9145 26 march 1997 immigration review tribunalstatement reason andreasons decisionirt reference s95 03126 9145 docreview applicant christine dugganvisa applicant agnes qui teng wongangel rodrigueztribunal michael radinsenior memberdate 26 march 1997place adelaide south australiadecision tribunal affirms decision review reason decisionthis application made m christine duggan review applicant review decision delegate minister immigration multicultural affair department dima grant sister m agnes wong visa applicant concessional family visa class 105 10 march 1995 visa applicant citizen singapore lodged application migration australia form 47 singapore post department immigration multicultural affair application accompanied sponsorship form form 40 signed review applicant together various supporting document application assessed delegate minister primary decision maker 23 june 1995 visa applicant subsequently informed refused concessional family visa failure receive necessary support respect point test subsequently review applicant made application migration internal review office miro adelaide 19 september 1995 seeking review primary decision however subsequently 24 october 1995 original decision affirmed upon basis responsible review officer set reason decision part following manner careful examination evidence concluded maximum point allocate applicant follows 85 point spouse 70 point evidence determine applicant usual occupation bar manager according australian standard classification occupation dictionary requires 3 year experience bar attendant turn requires 3 month certificate addition 3 month job training usual occupation australia applicant declared application migration occupation bar manager noted review appellant provided applicant education equates 12 year primary secondary education applicant advised successfully completed g c e level purpose appeal provisionally accepted education equate 12 year primary secondary education hence awarded 20 point applicant spouse advised usual occupation transport manager duty applicant spouse transport manager relevant qualification duty usual occupation combination resort manager travel clerk professional resort manager australia requires 3 year associate diploma 2 year certificate plus 3 5 year job training travel clerk requires 1 year certificate note post graduate qualification photography printing relevant qualification maximum point able award 25 point occupation resort manager subsequently 28 december 1995 applicant sought review previous decision making application immigration review tribunal south australian registry relevant lawin order secure grant concessional family visa class 105 applicant must satisfy relevant prescribed criterion relevant time criterion set themigration regulation 1994 specifically following part 105of schedule 2 regulation schedule 6 themigration regulation 1994 see appendix set various requirement need met applicant one said requirement point test set prescribed qualification corresponding prescribed number point major factor follows employment skillsskillsagerelationshipcitizenshipsettlement sponsorshiplocationevidencethe tribunal gave consideration documentation submitted part application matter also available departmental file preliminary meeting conducted review applicant telephone 7 march 1996 subsequently review applicant request hearing convened darwin 18 march 1996 review applicant gave sworn evidence m duggan born singapore 24 september 1950 entered australia 1973 visitor obtained permanent residence year citizen provided detailed evidence tribunal visa applicant background current circumstance documentation also submitted consideration tribunal tribunal given extensive consideration documentation set relevant documentation hereunder attestation visa applicant skill bar manager received northern territory university food beverage manager beaufort hotel darwin may concernagnes wong qui tenghaving hospitality industry 18 year lecturer passing knowledge experience vital take consideration experience gained agnes past 7 year hospitality industry although possessing formal qualification amount knowledge gained agnes year allow opportunity enrol associate diploma hospitality management course school receive recognition prior learning hospitality industry always looking experienced skilled qualified individual experience skill qualification gain school agnes problem gaining employment australia darwin transient territory employment opportunity would greater present occupation agnes hold many responsibility proof excellent management hospitality skill require information please hesitate contact signed ursula alexanderlecturer course co ordinatorschool tourism hospitalitynt university palmerston 8 february 1996to may concernhaving studied cv agnes wong qui teng opinion m wong relevant experience required person seeking position bar manager deluxe hotel australia well ability carry function staff recruitment duty assignment stock control public relation entertainment administrative duty also train new staff customer relation mixing drink bar work food beverage housekeeping hygiene exposure international hotel standard club meditaranee ability manage diverse large capacity function definitely added advantage prospective employer food beverage industry considering also vast experience food beverage industry also opinion would problem passing beverage course certificate required australian standard formalise bar experience wish discus comment please hesitate contact 089 829602 signed spencer baileyfood beverage managerthe beaufort darwin reference also received visa applicant seasonal employer singapore set following matter 7th march 1995 wong qui teng agnesp p 1729823 b________________________we owner operator highly successful one popular bar singapore elvis place agnes joined u july 1st 1991 u date one best staff ever efficient sharp friendly honest cover aspect work bar bar tendering serving stock control cashier customer relation good leader team player even demanding work situation every friday saturday bar packed full capacity keep cool able perform extremely well earned promotion bar manageress july 1st 1992 exactly one year company position held till left sad lose leave country husband would give best recommendation whatever job seek hesitate take back return best wish good luck agnes tcb enterprise pte ltdoperator elvis place signed elvis wee director summary visa applicant relevant experience also prepared tribunal respect following information provided summary agnes wong qui teng previousmanagement business experiencefrom 1988 1991 employed club mediterranee bali indonesia bilingual game exercise instructor duty follows plan daily weekly program different age group b organize game sport activity treasure hunt clown hunt swimming carnival sand castle building contest singing contest drawing contest etc c dressing child special event good bad face painting mini club show etc choreograph dance step skit mini club show e taking care rehearsal make costume f teaching various sea sport activity sailing windsurfing canoeing child g ensuring safety child time indonesia transferred end season cherating malaysia bilingual public relation hostess end season transferred sonora bay mexico assistant bar entertainment manager public relation year duration assigned moorea tahiti bar manager assistant duty follows bar bar supervision service drink mixing cocktail drink serving hot cold beverage appropriate whilst training staff rendering public guest servicesfood preparation preparing sandwich light snack whilst training staff public relation welcome guest club resort introducing club resort facility guest informing guest club activity handling guest complaint inquiry conducting information meeting mandarin cantonese hokkien english language seeking recruiting recreational entertainment singer musician performer variety artist etc patron care ensuring guest happy satisfied throughout stay club resort also responsible training new staff supervision bar five room service roster shift go stafffrom 1991 1995 employed tcb pte ltd bar tender 1991 bar manageress 1992 1995 classified tavern manager supervisor australian standard duty follows administrating company policy decision among two assistant turn supervised day night shift composed five employee responsible keeping needed tavern stock date mediation labor problem director staff union interviewing prospective employee march 1995 november 1995 employed club mediterranee moorea tahiti bar manager assistant supervised five european asian fifteen polynesian employee organized different shift schedule vacation planning managing also sick leave situation also responsible ordering needed stock supply facility capacity serve seven hundred full member one hundred temporary member daily basis area supervised composed bar capacity serving least fifty standing client cafe terrace seating capacity one hundred fifty people snack bar disco entertain two hundred people area operation open 8 3 daily basis seven day week addition also responsible training new employee teaching comportment necessary serve large number international client mix drink food preparation food service cook snack serve item generally train necessary housekeeping hygiene duty large service facility current employment club mediterranee lindeman island bar manager assistant resort capacity serving four hundred sixty member working area supervise composed main bar capacity serving forty standing customer cafe terrace one hundred fifty people working area operates 8 00 3 daily basis seven day week also responsible training new employee integrate system work described tribunal referred material relevant authority assessment visa applicant skill experience professional manager 2 december 1996 comprehensive reply received australian institute management 18 december 1996 tribunal set assessment follows m wong qui teng agnes file s95 03126the manager assessment material forwarded office examined information supplied regret advise applicantdoes satisfythe minimum requirement professional manager set manager assessment guideline department immigration ethnic affair procedure advice manual guideline set level qualificaitons training work experience assessed aim relevant australian authority pursuant toregulation 2 26 5 equivalent australian standard occupation accordance requirement schedule 6 themigration regulation satisfy requirement applicant must hold senior management position level associate fellow aim information criterion used follows record proven management achievement period five year senior management position chief executive general manager senior functional manager delegate authority toseveralother manager management responsibility planning organising decision making supervision staff senior manager tend manage department servicing overall operation organisation size complexity job requires delegation several manager involved specific related function ie national marketing manager supporting staff reporting relationship market research manager sale manager product development manager etc senior management position would include function directing policy operation company establishing organisation objective allocation staff preparation financial plan would involvement area number year would lead manager recognised position senior management level evidence provided applicant responsibility depth responsibility commensurate requirement senior manager associate fellow level senior management position assessed term scope operation refers range major management function would expect someone senior level responsible financial operational human resource management major area activity broader functional area also involved development strategic plan business plan enterprise whole complexity size management task influence level management key task undertaken applicant relevant senior management level sincerely signed barbara kerambrunnational secretary summary conclusionit apparent point score relation factor matter except employment skill criterion uncontroversial consideration relevant documentation matter supported oral evidence given review applicant hearing including assessment australian institute management tribunal able determine relevant period concerned visa applicant usual occupation bar manager respect advice received relevant authority namely australian institute management m wong satisfy minimum requirement professional manager accordingly visa applicant unable satisfy minimum standard professional manager order work bar manager australia according asco dictionary visa applicant merely requires three year experience bar attendant three month vocational certificate visa applicant fall assessed respect completed education respect visa applicant spouse basis material considered tribunal tribunal find usual occupation resort manager duty consistent finding position requires three year associate diploma australia alternatively two year certificate requisite number year job training post graduate qualification instance relevant usual occupation accordingly unable meet minimum requirement entry occupation australia qualification equivalent requisite entry standard 25 point appropriate score tribunal therefore able ass respective point score follows visa applicant spouseemployment skill 20 25age 30 10relationship 10 10citizenship 10 10settlement 10 10location55total 85 70the respective point score insufficient satisfy pool entry accordingly refusal application must stand decisionthe tribunal affirms decision review certify preceding 11 page true copy decision reason decision michael radin senior member tribunal assistant registrar26 march 1997michael radinsenior member26 march 1997appendix subclass 105 concessional family105 1 interpretation105 11 part usual occupation relation applicant meaning set subregulation 2 26 5 105 2 primary criterion note primary criterion must satisfied least one member family unit member family unit applicant visa subclass need satisfy secondary criterion 105 21 criterion satisfied time application105 211 applicant brother sister nephew niece parent b natural adopted child dependent child person clause called sponsor turned 18 australian citizen australian permanent resident eligible new zealand citizen 105 212 applicant sponsored sponsor 105 213 applicant working age 105 22 criterion satisfied time decision105 221 sponsorship referred clause 105 212 approved minister still force 105 222 applicant qualifying score assessed relation visa subdivision b division 3 ofpart 2of act note subdivision mentioned s 92 96 provides application point system applicant relevant visa given assessed score based prescribed number point particular attribute assessed relevant pool mark pas mark prescribed point manner allocation provided division 2 ofpart 2 regulations2 26and2 27 schedule 6 regulation certain circumstance attribute spouse applicant may taken account regulation 2 27 pool mark pas mark set time time minister notice gazette 96 105 223 2 applicant satisfies criterion specified clause 105 222 reason operation ofregulation 2 27 spouse applicant time application working age 105 224 1 subject subclause 2 usual occupation applicant occupation included occupation requiring english list applicant satisfies minister applicant proficiency english least standard required award 15 point language skill factor general point test specified inpart 3of schedule 6 2 applicant satisfies criterion specified clause 105 222 reason operation ofregulation 2 27 b usual occupation spouse applicant occupation included occupation requiring english list spouse applicant satisfies minister spouse applicant proficiency english least standard required award 15 point language skill factor general point test specified inpart 3of schedule 6 105 225 applicant satisfies public interest criterion 4001 4002 4003 4004 4005 4009 4010 105 226 applicant previously australia applicant satisfies special return criterion 5001 5003 5005 5007 5010 105 227 requested minister assurance support relation applicant given accepted minister 105 228 1 member family unit applicant applicant subclass 105 visa person satisfies public interest criterion 4001 4002 4003 4004 4005 4009 4010 b previously australia satisfies special return criterion 5001 5003 5005 5007 5010 2 member family unit applicant applicant subclass 105 visa person satisfies public interest criterion 4001 4004 b satisfies public interest criterion 4005 unless minister satisfied would unreasonable require person undergo assessment relation criterion 105 229 either family unit applicant includes dependent child made combined application applicant b child usually resident applicant ii turned 18 andmade combined application applicant minister satisfied grant subclass 105 visa child member family unit applicant would prejudice right interest person custody guardianship access child 105 230 approval application would result either number subclass 105 visa granted financial year exceeding maximum number subclass 105 visa determined gazette notice may granted financial year b number visa particular class including subclass 105 granted financial year exceeding maximum number visa class determined gazette notice may granted financial year 105 3 secondary criterion note criterion must satisfied applicant member family unit person satisfies primary criterion 105 31 criterion satisfied time application105 311 applicant member family unit made combined application person satisfies primary criterion subdivision 105 21 105 312 sponsorship referred clause 105 212 respect person satisfies primary criterion includes sponsorship applicant 105 32 criterion satisfied time decision105 321 applicant continues member family unit person satisfied primary criterion holder subclass 105 visa 105 322 sponsorship referred clause 105 312 approved minister still force 105 323 applicant satisfies public interest criterion 4001 4002 4003 4004 4005 4009 4010 105 324 applicant previously australia applicant satisfies special return criterion 5001 5003 5005 5007 5010 105 325 either applicant included assurance support required respect person satisfies primary criterion assurance accepted minister b assurance support provided relation applicant accepted minister 105 326 applicant dependent child person holder subclass 105 visa minister satisfied grant visa applicant would prejudice right interest person custody guardianship access applicant 105 4 circumstance applicable grant105 411 applicant must outside australia visa granted note charge applicable charge theimmigration education charge act 1992must paid visa granted 105 5 visa effect105 511 permanent visa permitting holder travel enter australia period 4 year date grant 105 6 conditions105 611 first entry must made date specified minister purpose 105 612 applicant satisfies secondary criterion either condition 8514 8502 may imposed 105 7 way giving evidence105 711 visa label affixed valid passport general point test qualification pointspart 1 employment qualificationcolumn 1item column 2prescribed qualificationcolumn 3numberof points6101the applicant applies enter australia basis occupation 80 applicant usual occupation ii priority occupation iii australia degree trade certificate diploma associate diploma post trade qualification required professional equivalent technical equivalent occupation iv respect least 3 year relevant application made applicant obtained degree trade certificate diploma associate diploma post trade qualification assessed relevant australian authority equivalent australian standard occupation b completed work experience assessed relevant australian authority equivalent australian standard occupation c completed combination academic professional study trade training work experience together assessed relevant australian authority equivalent australian standard occupation b respect occupation qualification experience required purpose australian occupational licence registration c employed occupation day 3 year day relevant application made worked occupation closely related occupation period 2 year period total 2 year period 3 year ending day day relevant application made6102the applicant usual occupation priority occupation and70 b occupation australia degree trade certificate required ii professional equivalent occupation c occupation respect lease 3 year relevant application made applicant obtained degree trade certificate diploma associate diploma post trade qualification assessed relevant australian authority equivalent australian standard occupation ii completed work experience assessed relevant australian authority equivalent australian standard occupation iii completed combination academic professional study trade training work experience together assessed relevant australian authority equivalent australian standard occupation occupation respect applicant qualification experience required purpose holding australian occupational licence registration e occupation applicant employed day 3 year day relevant application made f occupation applicant worked ii closely related occupation applicant worked period 2 year period total 2 year period 3 year ending day day relevant application made6103the applicant would meet qualification specified item 6102 except 60 applicant obtain complete qualification referred paragraph c item least 3 year application made b applicant employed occupation day 3 year application made c applicant worked occupation closely related occupation period 2 year period totalling 2 year period 3 year ending day application made 6104the applicant usual occupation priority occupation b occupation 55 australia diploma associate diploma required ii technical equivalent occupation c occupation respect least 3 year relevant application made applicant obtained diploma associate diploma assessed relevant australian authority equivalent australian standard occupation ii completed work experience assessed relevant australian authority equivalent australian standard occupation iii completed combination academic professional study trade training work experience together assessed relevant australian authority equivalent australian standard occupation occupation respect applicant qualification experience required purpose holding australian occupational licence registration e occupation applicant employed day 3 year day relevant application made f occupation applicant worked ii closely related occupation applicant worked period 2 year period total 2 year period 3 year ending day day relevant application made6105the applicant would meet qualification specified item 6104 except 50 applicant obtain complete qualification referred paragraph c item least 3 year application made b applicant employed occupation day 3 year application made c applicant worked occupation closely related occupation period 2 year period totalling 2 year period 3 year ending day application made6106the applicant 30 applies enter australia basis occupation applicant usual occupation occupation australia degree diploma associate diploma trade certificate required ii respect applicant degree diploma associate diploma trade certificate qualifies applicant enter occupation foreign country applicant usual country residence iii respect qualification applicant assessed relevant australian authority requiring upgrading course training lasting 6 month equivalent australian standard occupation b relation occupation attribute referred paragraph 6101 c 6107the applicant 25 applies enter australia basis occupation applicant usual occupation occupation entry australia requires certificate advanced certificate ii person educational qualification equivalent completion 4 5 6 year secondary education australia iii person certificate advanced certificate meet australian standard occupation work experience assessed relevant australian authority equivalent post secondary qualification kind b occupation applicant usual occupation ii entry australia requires degree diploma associate diploma trade certificate iii respect applicant degree diploma associate diploma trade certificate posse work experience assessed relevant australian authority equivalent australian standard occupation6108the applicant occupation applicant usual occupation b educational qualification equivalent 12 year primary secondary education australia206109the applicant occupation applicant usual occupation b educational qualification equivalent 10 year primary secondary education australia10 note applicant usual occupation medical practitioner including specialist medical practitioner 25 point deducted seeparagraph 2 26 3 c part 2 age qualificationcolumn 1item column 2prescribed qualificationcolumn 3numberof points6201the applicant aged le 18 year 30 year time application306202the applicant aged le 30 year 35 year time application256203the applicant aged le 35 year 40 year time application156204the applicant aged le 40 year 45 year time application106205the applicant aged le 45 year 50 year time application5part 3 language skill qualificationcolumn 1item column 2prescribed qualificationcolumn 3numberof points6301the applicant provides evidence hold award degree higher degree diploma trade certificate required least 3 year full time study training b instruction including instruction received course applicant allowed credit award conducted english206302the applicant provides evidence passed occupational english test 12 month lodging relevant application migrate b time processing relevant application migrate206303the applicant provides evidence achieved access test score least 5 4 test component listening reading writing oral interaction test conducted 12 month lodging relevant application migrate b time processing relevant application migrate206304the applicant provides evidence achieved ielts test score least 6 0 4 test component speaking reading writing listening test conducted 12 month lodging relevant application migrate b time processing relevant application migrate206305the applicant provides evidence hold award degree higher degree diploma trade certificate required least 2 year full time study training b instruction including instruction received course applicant allowed credit award conducted english156306the applicant provides evidence achieved access test score least 15 taking account 3 best applicant score based 4 test component listening reading writing oral interaction test conducted 12 month lodging relevant application migrate b time processing relevant application migrate156307the applicant provides evidence achieved ielts average band score least 6 0 3 best applicant score based 4 test component speaking reading writing listening test conducted 12 month lodging relevant application migrate b time processing relevant application migrate156308the applicant provides evidence completed year primary education least 3 year secondary education educational institution instruction conducted english106309the applicant provides evidence completed least 5 year secondary education educational institution instruction conducted english106310the applicant provides evidence achieved access test score least 15 minimum 3 4 test component listening reading writing oral interaction test conducted 12 month lodging relevant application migrate b time processing relevant application migrate106311the applicant provides evidence achieved ielts average band score least 4 5 based 4 test component speaking reading writing listening test conducted 12 month lodging relevant application migrate b time processing relevant application migrate106311athe applicant provides evidence successfully completed australia least 1 year full time study equivalent part time study towards degree higher degree diploma associate diploma institution institution instruction conducted english106312the applicant provides evidence completed year primary education least 2 year secondary education educational institution instruction conducted english56313the applicant provides evidence completed least 3 year secondary education educational institution instruction conducted english56314the applicant provides evidence achieved access test score least 12 based 4 test component listening reading writing oral interaction test conducted 12 month lodging relevant application migrate b time processing relevant application migrate56315the applicant provides evidence achieved ielts average band score least 4 0 based 4 test component speaking reading writing listening test conducted 12 month lodging relevant application migrate b time processing relevant application migrate56316the applicant satisfies minister applicant fluent 2 language english5part 4 relationship qualificationcolumn 1item column 2prescribed qualificationcolumn 3numberof points6401the sponsor son daughter adopted son adopted daughter stepson stepdaughter applicant156402the sponsor brother sister adoptive brother sister stepbrother stepsister parent adoptive parent step parent applicant106403the sponsor aunt uncle adoptive aunt uncle step aunt step uncle applicant5part 5 citizenship qualificationcolumn 1item column 2prescribed qualificationcolumn 3numberof points6501the sponsor australian citizen le 5 year time immigration receives relevant sponsorship106502the sponsor australian citizen le 5 year time immigration receives relevant sponsorship5part 6 settlement sponsor qualificationcolumn 1item column 2prescribed qualificationcolumn 3numberof points6601the sponsor 10 resident australia except short absence purpose recreation business throughout period 2 year immediately immigration receives relevant sponsorship b time immigration receives relevant sponsorship receiving benefit thestudent assistance act 1973or form australian social security benefit allowance pension age pension thesocial security act 1947or thesocial security act 1991 ii family allowance family allowance supplement either act iii pension theseamen war pension allowance act 1940or theveterans entitlement act 1986 c either person financially independent engaged paid employment receiving pension referred subparagraph b iii b received respect period period amounting 4 week period 2 year one following benefit allowance unemployment benefit thesocial security act 1947 ii special benefit act iii jobsearch allowance thesocial security act 1991 iv newstart allowance act ii person financially independent engaged paid employment receiving pension referred subparagraph b iii b spouse received respect period period amounting 4 week period 2 year one following benefit allowance unemployment benefit thesocial security act 1947 ii special benefit act iii jobsearch allowance thesocial security act 1991 iv newstart allowance actpart 7 location sponsor qualificationcolumn 1item column 2prescribed qualificationcolumn 3numberof points6701throughout period 2 year immediately immigration receives relevant sponsorship except short absence purpose recreation business sponsor resident one area specified gazette notice designated area purpose item5

N99_28175 [2000] RRTA 655 (19 June 2000).txt

n99 28175 2000 rrta 655 19 june 2000 refugee review tribunaldecision reason decisionrrt reference n99 28175country reference jordantribunal member m patricia leehydate decision made 19 june 2000place sydneydecision tribunal affirms decision grant protection visa backgroundthe applicant citizen jordan arrived australia lodged application protection class az visa department immigration multicultural affair themigration act 1958 act delegate minister immigration multicultural affair refused grant protection visa applicant applied review decision legislationunders 65 1 act visa may granted decision maker satisfied prescribed criterion visa satisfied criterion grant protection class az visa set in 36of act inpart 866of schedule 2 migration regulation force immediately 20 october 1999 subsection 36 2 act provides criterion protection visa applicant visa non citizen australia australia protection obligation refugee convention amended refugee protocol refugee convention refugee protocol defined mean 1951 convention relating status refugee 1967 protocol relating status refugee respectively 5 1 act australia party refugee convention refugee protocol generally speaking protection obligation people refugee defined refugee conventionarticle 1a 2 convention defines refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return high court considered definition number case notablychan yee kin v minister immigration ethnic affair 1989 hca 62 1989 169 clr 379 applicant anor v minister immigration ethnic affair anor 1997 190 clr 225 andminister immigration ethnic affair v guo anor 1997 191 clr 559 inguo case court observed definition contains four key element first applicant must outside country element issue present matter second applicant must fear persecution every threat harm interference person right convention reason constitutes persecuted inchan casemason cj referred persecution requiring serious punishment penalty significant detriment disadvantage case mchugh j said notion persecution involves selective harassment appropriate case may include single act oppression serious violation human right measure disregard human dignity persecution may directed person individual member group persecution must official quality sense official officially tolerated uncontrollable authority country nationality persecution implies element motivation part persecute infliction harm people persecuted something perceived attributed persecutor third persecution applicant fear must one reason enumerated convention definition race religion nationality membership particular social group political opinion phrase reason serf identify motivation infliction persecution fourth applicant fear persecution convention reason must well founded fear add objective requirement requirement applicant must fact hold fear person well founded fear persecution convention genuine fear founded upon real chance persecution convention stipulated reason fear well founded real substantial basis merely assumed mere speculation real chance one remote insubstantial far fetched possibility person well founded fear persecution even though possibility persecution occurring well 50 per cent addition applicant must unable unwilling fear avail protection country country nationality applicant stateless must unable unwilling fear return country former habitual residence whenever protection applicant country available ground based well founded fear refusing person concerned need international protection refugee whether applicant person australia protection obligation assessed upon fact exist decision made requires consideration matter relation reasonably foreseeable future claim evidencethe tribunal wrote applicant advising considered paper relating application unable make favourable decision information alone tribunal invited applicant give oral evidence present argument hearing specified date hearing date later amended another date applicant advised letter applicant advised tribunal writing wish give oral evidence would like tribunal proceed make decision paper matter therefore determined evidence available tribunal according protection visa application applicant single male born kuwait palestinian ethnicity say parent several brother currently resident jordan applicant resident early 1990s kuwait completed education jordan say protection visa application never employed applicant came australia applied protection visa applicant say left kuwait complete high school study say faced difficulty completing study discrimination palestinian jordanian citizen say could afford cost university could work discrimination say wish military service treated well jordan say found friend done military service used give extra work allowed see family holiday tribunal also independent information relevant applicant claim according u state department scountry report human right practicesfor 1999 jordan published february 2000 palestinian community estimated slightly half total population represented proportionately government legislature 7of 24 minister 7 40 senator 11 80 lower house deputy palestinian origin electoral system give greater representation area majority inhabitant non palestinian origin government granted citizenship palestinian fled jordan period 1948 arab israeli war large number refugee displaced person arrived result 1967 war palestinian residing jordan make 60 percent population suffer discrimination appointment position government military admittance public university granting university scholarship department foreign affair trade report dated 21 december 1994 stated following whilst palestinian jordan may perceive discriminated palestinian generally well treated full access community service legal right education etc aware local clash palestinian jordanian cisnet document cx15452 relation military service available source indicate compulsory military service jordan year website jordanian government regularly updated section devoted armed force section say part one main benefit jordan reaped peace treaty israel removal hostile military danger western border jordan thus able freeze process conscription making conversion volunteer army although army converted conscript professional force since signing peace israel offer enough benefit service keep combined manpower jordan armed force 88 000 active soldier including reserve finding reasonsthe mere fact person claim fear persecution particular reason establish either genuineness asserted fear well founded reason claimed remains applicant satisfy tribunal statutory element made miea v guo anor 1997 191 clr 559at 596 although concept onus proof appropriate administrative inquiry decision making yao jing li v mima 1997 fca 289 1997 74 fcr 275at 288 relevant fact individual case supplied applicant much detail necessary enable examiner establish relevant fact decision maker required make applicant case prasad v miea 1985 fca 47 1985 6 fcr 155at 169 70 luu anor v renevier 1989 fca 518 1989 91 alr 39at 45 tribunal required accept uncritically allegation made applicant applicant claim ethnicity palestinian discriminated jordan say faced difficulty completing year study jordan provides detail difficulty experienced fact according protection visa application attended high school number year jordan applicant say could afford attend university jordan independent evidence discrimination palestinian relation university scholarship admission public university page 5 regrettable applicant unable access university education tribunal satisfied discrimination sufficiently serious amount persecution convention sense applicant received 15 year education including number year high school education jordan sufficient equip earn living although applicant claim work discrimination tribunal note arrived australia apparently immediately completing high school suggesting sought employment short period interval completing school coming australia evidence people palestinian background constitute 60 population jordan discriminated general employment distinct government military appointment tribunal accept applicant unable obtain employment palestinian background even kind employment closed tribunal satisfied discrimination sufficiently serious constitute persecution convention sense applicant principal concern appears may liable perform compulsory military service return jordan would treated badly military service ethnicity tribunal satisfied basis independent evidence set page 5 military service compulsory jordan indication situation change foreseeable future event liability military service would constitute persecution convention sense since evidence would applied selectively basis ethnicity tribunal note applicant arrived australia specified time apply protection visa long period time suggesting urgently seeking asylum left jordan tribunal satisfied evidence applicant well founded fear persecution within meaning convention conclusionhaving considered evidence whole tribunal satisfied applicant person australia protection obligation refugee convention amended refugee protocol therefore applicant satisfy criterion set 36 2 act protection visa decisionthe tribunal affirms decision grant protection visa

N94_04748 [1998] RRTA 3001 (10 June 1998).txt

n94 04748 1998 rrta 3001 10 june 1998 refugee review tribunaldecision reason decisionrrt reference n94 04748country reference fijitribunal member m r laytondate decision 10 june 1998place sydneydecision tribunal affirms decision grant protection visa catchword race political opinion social group disabledbackgroundthe applicant citizen fiji arrived australia in1989 on14 december 1990the applicant husband applied department immigration ethnic affair department refugee status related entry permit themigration act 1958 act applicant husband included applicant wife applicant child application on29 june 1994a delegate minister immigration refused grant refugee status related entry permit on15 july 1994 applicant applied tribunal review decision operation ofs 39of themigration reform act 1992 refugee status entry permit application deemed application protection visa practical purpose relevant legal criterion upon matter determined remains applicant represented primary review application migration adviser issue arises case validity application review tribunal jurisdiction review delegate decision legislationa criterion protection visa time decision minister review tribunal satisfied applicant person australia protection obligation 1951 convention relating status refugee amended 1967 protocol relating status refugee s 5 1 and36 2 act australia party refugee convention refugee protocol generally speaking protection obligation people refugee defined refugee conventionarticle 1a 2 convention defines refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return definition considered high court inchan yee kin v miea 1989 hca 62 1989 169 clr 379 applicant anor v miea anor 1997 142 alr 331 354 andmiea v guo anor 1997 144 alr 567 575 6 federal court number case notablyram v miea anor 1995 fca 1333 1995 57 fcr 565 case established following general principle inguo case court observed definition contains four key element first applicant must outside country second applicant must fear persecution inapplicant gummow j 375 referred primary meaning term persecution ordinary usage action persecuting pursuing enmity malignity esp infliction death torture penalty adherence religious belief opinion view repression extirpation every threat harm interference person right convention reason constitutes persecuted mason cj referred persecution requiring serious punishment penalty significant detriment disadvantage chanat 388 harm threat harm part course selective harassment person whether individually member group subjected systematic harassment amount persecution done convention reason appropriate case may include single act oppression serious violation human right measure disregard human dignity persecution must official quality sense official officially tolerated uncontrollable authority country nationality persecution implies element motivation part persecute infliction harm people persecuted something perceived attributed persecutor third reason persecution must found singling one convention reason race religion nationality membership particular social group political opinion phrase reason serf identify motivation infliction persecution fourth applicant fear persecution convention reason must well founded fear add objective requirement requirement applicant must fact hold fear person well founded fear persecution convention genuine fear founded upon real chance persecution convention stipulated reason fear well founded real substantial basis merely assumed mere speculation real chance one remote insubstantial far fetched possibility person well founded fear persecution even though possibility persecution occurring well 50 per cent addition applicant must unable unwilling fear avail protection country object convention provide refuge lost thede jureorde factoprotection government unwilling return country nationality follows whenever protection country nationality available ground based well founded fear refusing person concerned need international protection refugee whether applicant satisfies convention definition assessed upon fact exist decision made requires consideration matter relation reasonably foreseeable future mere fact person claim fear persecution particular convention reason establish either genuineness asserted fear well founded reason claimed applicant persuade tribunal statutory element made guo caseat 596 claim evidencethe applicant claim set written submission department interview officer department written submission tribunal oral evidence given tribunal 4 june 1998 follows primary application applicant husband said fiji indian applicant considered second class citizen discriminated fiji applicant husband said fijian national loyalist lost fundamental right freedom speech assembly result may 1987 coup said supporter taukei ethnic fijian landowner movement human right fiji political opponent present military regime publicly voice opinion subject arrest detention said support restoration parliamentary democracy constitutional monarchy fiji since arriving australia supported fijian loyalist support group return fiji face real personal risk arrest detention support group said law order fiji police judiciary independent impact opponent military regime said house stoned day worship non indian fijian left fiji sister house shattered big stone thrown native fijian one came investigate matter flat raided reported police action taken folio 29 departmental file letter dated 1994 mp asking applicant application refugee status sympathetically considered since inter alia applicant husband applicant wife well qualified applicant husband working applicant wife also worked applicant wife involved accident resulting partial amputation may difficulty obtaining appropriate medical care required return fiji letter dated 25 may 1998 adviser submitted applicant husband left fiji 1987 coup felt sure becoming second class citizen country birth australia joined fijian resource centre formed represent fijian loyalist interest australia adviser submitted applicant father subjective fear persecution adviser cited following passage u department state country report human right practice 1997 continue credible report human right abuse individual police officer principal human right problem significantly addressed revised constitution remains ethnically based discrimination human right problem include occasional police brutality magistrate system fails perform function effectively informal constraint freedom press discrimination case violence woman instance abuse child police sometimes abuse detainee indo fijian subject occasional harassment based race credible allegation government involvement incident police investigated sometimes resulting arrest adviser also cited report fiji export policy driven labor right abuse international confederation free trade union 24 april 1997 adviser state give graphic picture government policy fuelling racial sexual discrimination adviser annexed report highlighted following section fiji government export policy driven labour right abuse racial sexual discrimination child labour contract labour system includes element compulsion try organise better condition dismissed union excluded company support government tribunal hearing applicant husband applicant wife attended adviser gave evidence fluent english tribunal asked applicant family fiji applicant husband said brother sister fiji contact three time year telephone tribunal asked whether either sibling told adverse event occurring since departure race convention reason said applicant wife said two brother fiji tribunal asked whether either sibling told adverse event occurring since departure race convention reason said except one brother told crime increasing fiji store broken reported police felt abused fiji indian complaint given proper priority fiji indian tribunal asked whether applicant wife knew particular alleged abuse brother thought case given proper priority said tribunal discussed country information indicates crime increased fiji social change urban drift fiji indian amongst non ethnic fijian group targeted perception greater wealth rather race police well respected judiciary independent applicant comment tribunal asked applicant husband whether participated political activity fiji said tribunal asked applicant husband whether participated political activity australia said though time time gave money fijian association sent money fiji help people needed help tribunal discussed country information indicates freedom political expression fiji applicant comment tribunal asked applicant employment history applicant husband said departure fiji 1989 work resigned come australia australia worked gaining diploma applicant wife said departure 1989 work australia gained certificate management qualification employment tribunal asked applicant happened departure fiji 1989 applicant husband said flat broken work period 1987 coup intruder turned everything upside took money applicant husband said believed intruder must ethnic fijian applicant complained police police took report applicant heard nothing people tried break flat two three week later however time applicant home turned light intruder fled without applicant seeing applicant report incident police nothing taken tribunal asked applicant thought intruder tried break two time applicant wife said thought tried break find valuable tribunal asked applicant concerned returning fiji applicant husband said concerned family future would start son educated australia would adjust standard education fiji said also australia become catholic worried reaction fiji indian religion tribunal noted discrimination fiji indian appear come within convention applicant agreed tribunal noted country information indicated freedom religion fiji law practice applicant agreed applicant wife said really worried returning fiji mean different way life said numerous operation injury related accident need continuous checkup constant severe pain ongoing medical facility available fiji would much le available australia applicant wife said distant relative suffered injury fiji walk crutch life lack medical help available fiji said worried might discriminated condition applicant husband said also worried wife facility available fiji rail stair reserved seating public transport people condition looked said wife fifty per cent chance getting job disability applicant wife also said concerned might fiji indian woman harassed tribunal asked whether harassed living fiji 1989 said tribunal asked whether knowledge sister law harassed ground fiji indian woman said aware sister law harassed adviser referred submission dated 25 may 1998 particular referred tribunal section u department state country report human right practice 1997as disabled people country information considered caseapart applicant evidence tribunal considered following material stabilising fiji post 1987 coup department foreign affair trade dfat cable suva fa ref ch696962 dated 18 january 1994 comment inter alia breakdown law order fiji dfat cable su62724 fiji human right 17 march 1994 state sharp deterioration public order followed coup subsided reconvening parliament provided outlet political expression contributed restoration political stability removed opportunity petty criminal take advantage distracted police force military reverted traditional neutral role military kept low profile lead election reported incident since anirudh singh case 1988 politically motivated violence civilian reason believe might unreported incident u department state country report human right practice 1997 published january 1998 state section fiji fiji made significant progress 1997 toward restoration representative democratic government approval amended constitution passage legislation 10 year two bloodless military coup expected promote greater political stability ii freedom political expression fiji pmo suva fax various issue 20 june 1991 cisnet cx2812 isolated incident politically motivated attack prominent member opposition party organisation recent year number restricted high profile opposition member however evidence widespread campaign political harassment opposition figure dfat cable su388 dated 11 may 1995 fiji human right state restriction formation registration political party group current constitution main opposition party fiji national federation party fiji labour party predominantly fiji indian membership fijian association party fijian opposition group meet freely public private able put forward view openly parliament medium restriction movement assembly political group fiji report opposition indian group harassed post coup period evidence political harassment since return parliamentary democracy 1992 opposition group fiji face risk arbitrary detention violence able travel freely domestically internationally opposition party headquarters remain open free government interference assembly political purpose allowed fiji human right dfat cable su1675 fiji human right survey 6 august 1996 state relation freedom political expression main opposition party national federation party fiji labour party fijian association party well radical organisation like fiji youth student league enjoy freedom association expression critical view openly expressed parliament party convention medium fiji time 14 june 1997 reported dr singh 1990 charged sedition subsequently abducted tortured 11 hour period allegedly member military involved incident constitution burned returning fiji take post university south pacific quoted saying decision prompted recent development fiji political situation u department state country report human right practice 1997 published january 1998 state freedom speech generally respected p olitical figure private citizen speak government constitution provides right assemble political purpose subject restriction interest public order permit public gathering must obtained district officer government routinely issued permit rally organized political party religious group group opposed government policy opposition party headquarters operate without government interference political organization operate issue public statement repeatedly openly throughout year fiji number active political party ethnic fijian svt fijian political party form core government parliamentary majority fijian association party joined government coalition year two small party representing primarily caucasian asian also member included cabinet two predominantly indo fijian party national federation party nfp fiji labour party flp make opposition leader opposition parliamentary leader nfp iii law order fiji dfat cable su62724 17 march 1994 stated proportion fiji indian police force declined 48 per cent 1987 39 per cent 1993 arnfield sought restore balance many able fiji indian officer lost emigration coup marked increase proportion fijian senior rank occurred largely result emigration due deliberate policy promote one ethnic group expense dfat cable su63759 26 october 1994 fiji sunday observance decree theft statistic 1987 1993 stated fiji indian specific target theft chinese european expatriate reason racial economic group tend money dfat cable su640 fiji law order fijian court system 27 july 1995 state frequency violence crime fiji rise time analyst attribute rise crime problem associated social change urban drift dfat cable su448 2 june 1995 noted opposition leader reddy said public confidence police force highest many year major shortcoming identified notoriously slow police response time resulted limited resource base cable indicated major ethnic group represented police force promotion based merit rather ethnicity cable state defendant litigant racial group need fear discrimination bench fiji would fair say judiciary maintained reasonable record impartiality integrity defence rule law since 1987 fiji police force professional well respected organisation police accept report fiji time 18 february 1997 page 5 state report recently published concerning fiji police force shown community critical level service provided police recommendation made report policing fiji overview community attitude perception accepted police senior management u department state country report human right practice 1997 published january 1998 state section fiji police department internal affair unit investigates complaint police brutality working ombudsman office ensure impartial observer investigation complaint police conduct judiciary independent constitution practice credible report court influenced executive iv racial discrimination fiji world directory minority ed minority right group london 1997 state though post 1987 coup period indian marginalized sphere since regained substantial economic power dfat cable su2700 11 july 1997 fiji indigenous fijian fiji labour party rrt request fji11940 statesthat 1997 amendment 1990 constitution establishes set non discriminatory principle guide conduct government fiji remove affirmative action principle contained chapter three 1990 constitution replaces chapter social justice broadens definition affirmative action incorporate disadvantaged group establishes merit equal opportunity guiding principle recruitment promotion training opportunity within state service also state one key human right problem fiji identified constitutionally imposed ethnically biased political discrimination constitution amendment bill contains many provision designed strengthen fiji human right framework key element amendment bill include compact although non justiciable establishes set non discriminatory principle guide conduct government fiji country report human right practice 1997 published january 1998 state section fiji new legislation incorporated work independent constitutional review commission unanimously approved house parliament signed law july 25 provision amend 1990 constitution encourage multiethnic government protecting traditional fijian value amended constitution prime minister president race first time addition communally allocated seat open seat allocated racial community lower house constitution also includes strengthened bill right compact designed protect right citizen however preserve paramountcy indigenous fijian interest cannot subordinated interest community new constitution come effect later july 28 1998 may take effect sooner implementing legislation approved election must take place later 1999 nonetheless ethnicity remains dominant factor fijian life affect country politics economy society population multiracial multicultural mix indigenous fijian comprising 51 percent indo fijian around 42 percent asian caucasian making rest 775 000 population racial divide particularly evident private public sector business largely controlled indo fijian family government ministry military largely led indigenous fijian amended constitution prohibits discrimination basis race sex place origin political opinion colour religion creed indo fijian subject occasional harassment based race credible allegation government involvement incident police investigated sometimes resulting arrest v people disability fiji letter situation regard people living hiv aid fiji aidab consultant 5 january 1993 write response query situation regard people living hiv aid fiji 12 day team member spent fiji met 50 person including representative fiji council social service fiji disabled people association july 1994 report prepared u department state national data trade bank fiji travel condition 21 march 1995 page 2 state health care facility fiji adequate routine medical problem two major hospital lautoka hospital city lautoka colonial war memorial hospital suva provide emergency outpatient service hospital clinic provide limited range health service serious medical emergency may referred australia new zealand united state medical practitioner hospital expect payment upon treatment release people tell health care flaw fiji time 16 may 1995 page 5 state lack staff facility supply biggest problem health care system fiji according majority people interviewed may 1995 tebbutt time poll giving disabled people fair chance arthur mccutchan fiji time 4 january 1997 state spokesman fiji disabled people association clarence narayan said disabled people discriminated came employment three issue first access disabled people lot place difficult disabled get access state economy bad people renovation first thing go disability access providing access disabled people mean providing ramp wider door allow wheelchair toilet designed second point lack education opportunity current system provides people disability many disabled people go tertiary education quite go form four compete system mr narayan said able get education attitude employer let employer negative attitude disabled people idea disabled people make something executive director fiji national council disabled person strongly feel disabled people best worker joe toga said give job concentrate done maybe work hard show good better able bodied many u realise problem people go especially looking external point view mr toga said culture violence arthur mccutchan fiji time 16 january 1997 state report titled situation analysis child woman fiji 1996 prepared united nation child fund unicef government praised fiji health situation compared many developing country world health status people fiji good improvement recent year impressive need service child disability greater currently available available facility mostly provided major town disabled child go without help need parent recognise special need report said lack policy requiring new existing building accommodate need handicapped student lack fund school support service disabled child part problem country report human right practice 1997 published january 1998 state section fiji people disability legal discrimination physically disabled person employment education provision state service exist however legislation mandated provision accessibility disabled several small voluntary organization promote greater attention need disabled finding reasonsthe applicant husband made claim basis race political opinion applicant husband claim made 1990 tribunal note duty ass concern reasonably foreseeable future applicant wife made claim ground disability hearing stated concerned might face harassment fiji indian woman though suffer harassment left fiji 1989 applicant husband claim ground political opinion tribunal note evidence hearing support finding would involved political activity case tribunal find available country information indicates general political opposition tolerated fiji tribunal note although political arrest coup 1992 freedom speech largely restored 1994 political prisoner fiji fijian could oppose government openly report australian embassy suva dated 20 june 1991 op cit dfat cable su388 dated 11 may 1995 fiji human right u department state country report human right practice 1997 op cit particular thecountry report human right practice 1997 op cit state fiji democratic government government routinely issued permit rally organized political party religious group group opposed government policy opposition party headquarters operate without government interference political organization operate issue public statement repeatedly openly throughout year fiji number active political party amended constitution provides representative ethnic mix fiji parliament removal affirmative action principle favoured ethnic fijian passed unanimously parliament 1997 considering evidence tribunal find applicant husband return fiji would face real chance persecution ground political opinion even expressed political opinion past future chose express political opinion participating political activity fiji elsewhere applicant claim race husband claimed may 1987 fiji indian treated second class citizen applicant wife claimed may harassed fiji indian woman tribunal note general country material indicates fiji moving towards racially tolerant stable society world directory minority ed minority right group london 1997 dfat cable su2700 11 july 1997 u department state country report human right practice 1997 following recent constitutional review 1990 constitution amended unanimously parliament u department state country report human right practice 1997 published january 1998 toremove radical affirmation provision respect parliamentary representation public service 1990 pro coup constitution andto establish set non discriminatory principle guide conduct government fiji dfat cable su2700 11 july 1997 new constitution fiji come operation july 1998 u department state country report human right practice 1997 published january 1998 tribunal accepts despite constitutional amendment discrimination fiji fiji indian basis race tribunal find serious amount persecution within convention applicant husband claimed law order fiji would protected police judiciary independent said police took action complaint sister made coup period applicant wife also said hearing brother complained police handling robbery shop since detail reason basis complaint tribunal cannot make finding fact claim tribunal accepts fear insecurity fiji coup period 1987 consistent country information coup period 1987 aftermath however 1987 coup fiji stabilised u department state country report human right practice 1997 fiji country report human right practice 1997 op cit state section fiji amended constitution prohibits discrimination basis race sex place origin political opinion colour religion creed also state indo fijian subject occasional harassment based race continues credible allegation government involvement incident police investigated sometimes resulting arrest tribunal note also dfat cable su448 dated 2 june 1995 indicates police force professional well respected judiciary maintained impartiality since 1987 country report human right practice 1997 op cit also state judiciary independent constitution practice tribunal find response authority fiji crime impartial offer citizen fijian indigenous le protection basis convention reason tribunal find applicant returned fiji suffered harm amounted criminal act authority would protect whatever race tribunal concludes claim give rise well founded fear persecution within convention applicant wife claimed concerned return fiji may discriminated work society would get adequate medical attention applicant husband added facility available fiji rail stair reserved seating public transport people wife condition looked wife chance getting job though experience field worked fiji australia qualification may disability hearing adviser referred submission dated 25 may 1998 particular referred tribunal section u department state country report human right practice 1997as disabled people country information indicates reported discrimination disabled people fiji opportunity employment country report human right practice 1997and giving disabled people fair chance arthur mccutchan fiji time 4 january 1997 education ibid access disabled people ibid also lack staff facility supply problem fiji people tell health care flaw fiji time 16 may 1995 page 5 facility disabled child culture violence arthur mccutchan fiji time 16 january 1997 however basic health care available culture violence arthur mccutchan fiji time 16 january 1997 national data trade bank fiji travel condition 21 march 1995 page 2 voluntary organization fiji promote need disabled country report human right practice 1997 letter situation regard people living hiv aid fiji aidab consultant 5 january 1993 including fiji disabled people association letter situation regard people living hiv aid fiji fiji national council disabled person giving disabled people fair chance arthur mccutchan fiji time 4 january 1997 considering evidence tribunal find discrimination fiji people disability medical support le available fiji difficulty faced people disability fiji great amount persecution within convention case tribunal find discrimination faced applicant wife disability would convention reason evidence discrimination would faced religion political opinion race nationality disability make member particular social group purpose convention since country information support finding disabled people fiji either persecuted jointly condemned eye persecutor ram v miea anor 1995 fca 1333 1995 57 fcr 565 569 tribunal concludes applicant wife well founded fear persecution convention reason fiji reason condition tribunal considered totality applicant husband applicant wife claim relation race political opinion wife disability taken cumulatively claim support conclusion past experience applicant husband applicant wife amounted persecution totality past present circumstance applicant husband applicant wife give rise real chance persecution within meaning convention applicant husband applicant wife return fiji applicant childno specific convention claim made behalf applicant child basis tribunal satisfied refugee fate application therefore depends outcome applicant husband applicant wife application tribunal found applicant husband applicant wife satisfy criterion protection visa follows applicant child cannot granted protection visa humanitarian issuesthe tribunal reviewing decision refuse application protection visa jurisdiction consider humanitarian claim however tribunal note humanitarian content refugee application taken account minister discretionary power given section 417 act tribunal note applicant lived australia since 1989 applicant wife applicant husband job australia applicant son schooling undertaken australia applicant wife suffered accident australia left severe injury ongoing severe pain need ongoing medical attention numerous operation injury related accident date applicant wife fear return fiji disadvantaged matter access appropriate medical help appropriate disabled facility public work place country information confirms though convention reason would appear matter could referred minister consideration section 417 act conclusionhaving considered evidence whole tribunal satisfied applicant person australia protection obligation refugee convention amended refugee protocol therefore applicant satisfy criterion set 36 2 act protection visa decision

Bayard v Yarra Ranges SC [2008] VCAT 458 (20 March 2008).txt

bayard v yarra range sc 2008 vcat 458 20 march 2008 last updated 2 april 2008victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p2899 2007application s09328applicantcarol bayardresponsible authorityyarra range shire councilwhere heldmelbournebeforerussell byard senior memberhearing typefull hearingdate hearing26 february 2008date order20 march 2008subject landaddresspriors road parker lanethe patchcitationbayard v yarra range sc 2008 vcat 458orderthis application review dismissed special charge confirmed _________________russell byardsenior memberappearancesmr ragu appudurai solicitor firm russell kennedy solicitor appeared mr mark varmalis shire yarra range municipality presented written oral submission m carol bayard applicant review appeared person made oral submission various plan photograph document tendered evidence evidence submission documentary form retained file tribunal nature proceedingapplication unders 185 1 thelocal government act 1989for review decision council impose special charge unders 163of act construction prior road parker lane reasonsthis case review decision council impose special charge cover cost constructing prior road parker lane patch construction include seal 5 metre wide prior road 3 metre wide parker lane includes drainage work total cost approximately 1 262 million dollar council bear 49 cost basis road element use prior road construction provides benefit community generally well owner land frontage road m bayard sought review unders 185of thelocal government act 1989on two ground first claim derive special benefit construction second claim basis distribution cost amongst made liable unreasonable end hearing announced decision gave oral reason content brief summary basis distribution adopted council unit benefit basis one benefit unit respect property deriving principal access prior road parker lane property secondary frontage principal access either road assessed smaller amount one full benefit unit basis variation explained course hearing affect assessment property overall scheme charge fall m bayard minimal turn also immaterial charge m bayard basis distribution would 21 032 70 would normally amount assessment amount would obliged pay council adopted called ceiling policy provides owner residential property assessed special charge scheme construction road called upon pay 13 500 balance otherwise charged case difference 21 032 70 13 500 borne council addition 49 contribution previously mentioned represents concession m bayard similar owner 7 500 parker lane short dead end lane run prior road three property scheme abut two corner property north western south western corner intersection two carriageway property assessed one unit principal access prior road formula include contribution sideage abutment parker lane might room argument whether contribution called account side abutment ultimately consideration proved immaterial circumstance present case one reason difference would slight barely affect full assessment m bayard certainly would bring assessment 21 032 70 13 500 ceiling amount one property abutment parker lane draw principal indeed access lane assessed one benefit unit result including lane increased cost scheme whilst including one additional contributor cannot see m bayard whose property north abuts prior road derives special benefit inclusion parker lane construction consequently arguable liable contribution respect construction lane may convenient administrative point view engineering point construction point view construct lane time prior road particularly dead end street hard see people owner land fronting lane said derive special benefit concession arising ceiling policy would minded reduce m bayard contribution amount attributable construction lane reduction would result calculates approximately 2 430 respect property deducted 21 032 70 bring total 13 500 separate assessment relation lane would also eliminate question sideages corner block intersection assessment relation prior road attract one benefit unit basis adjustment affecting m bayard account sideages would called property included scheme green wedge zone minimum subdivision area 8 hectare whilst others green wedge zone minimum subdivision area 2 hectare none property subdivided nevertheless much larger area others much greater frontage others m bayard lot small one term frontage area one larger one area order 4 5 hectare 11 acre property value usefulness beyond simple residential use arguable simple benefit unit distribution unreasonable circumstance element based frontage area included found necessary make final decision possibility calculation indicate called shandy basis apportionment would make material difference circumstance present case ceiling policy reduction apparently council include frontage element basis apportionment ratio 90 10 90 unit benefit 10 basis frontage think appropriate hard fast rule policy considered varied appropriate according circumstance construction street property identical area frontage would indicate unit benefit could improved upon circumstance area frontage vary might call shandy element proportion might always 90 10 may conceiverably case area relevant particular case considered merit present purpose think apportionment access unit frontage excess 50 50 could justified calculation basis indicate reduction 21 032 70 respect consideration added exclusion cost constructing lane would still leave amount attributable m bayard 13 500 ceiling amount although argument favour m bayard relation inclusion lane basis distribution access benefit unit rendered immaterial generosity ceiling policy taking favourable view point view m bayard relation consideration would still leave assessment 13 500 thus consider basis interfering scheme rather confirmed appreciate m bayard said difficult financial circumstance complaint cannot afford meet charge rightly wrongly relevant ground relied furthermore ground unders 185that could relied upon legislation allows relief allowing claimant pay instalment 10 year although charge respect payment mean beyond may council might matter grace make concession allow repayment longer period matter council matter relevant current proceeding _________________russell byardsenior member

Plaintiff S254_2006 v MIMA & Anor [2006] HCATrans 515 (13 September 2006).txt

plaintiff s254 2006 v mima anor 2006 hcatrans 515 13 september 2006 plaintiff s254 2006 v mima anor 2006 hcatrans 515 13 september 2006 last updated 18 september 2006 2006 hcatrans 515in high court australiaoffice registrysydney s254 2006b e w e e n plaintiff s254 2006plaintiffandminister immigration multicultural affairsfirst defendantrefugee review tribunalsecond defendantsummonsheydon jtranscript proceedingsat sydney wednesday 13 september 2006 9 29 amcopyright high court australiamr j jenkins honour plea appear plaintiff instructed plaintiff mr g r kennett may please court appear first defendant instructed australian government solicitor honour mr jenkins rely application order show cause filed 2 august mr jenkins yes honour honour also rely summons filed 2 august mr jenkins yes honour honour read affidavit plaintiff affirmed filed 2 august mr jenkins yes honour plaintiff also sworn second affidavit process speak stapled copied would seek leave file court arrives also rely affidavit honour mr kennett objection part affidavit 2 august mr kennett honour honour seen copy received advanced intimation affidavit mr kennett honour honour read mr markus affidavit 6 september mr kennett essentially procedural honour yes honour object mr jenkins mr jenkins objection honour cannot go get affidavit say stapled stapled someone office mr jenkins anticipate five minute away honour copy mr jenkins original copied honour think adjourn case unless anyone mr jenkins apology court honour seem alternative adjourn hearing pending hearing first matter list mr kennett mr kennett think honour honour say adjourn certificate deputy registrar advising solicitor second defendant indicated second defendant submit order court except cost holdplaintiff s254in list 9 32 matter adjourneduntil later dayupon resuming 10 04 honour mr jenkins wanted file court affidavit mr jenkins yes honour seek leave file court affidavit plaintiff affirmed day 13 september 2006 provided learned friend copy honour well grant leave file court chance read mr kennett mr kennett honour object matter go final hearing client would obviously wish investigate correctness perhaps test particular proposition paragraph 7 today purpose object honour problem one argument advance evidence unclear whether department gave tribunal passport whether plaintiff gave tribunal passport mr kennett affidavit clearly designed fill gap honour today decide paragraph 7 exist one could fairly say despite plaintiff complaint non compliance section 424a act plaintiff would established whether exception applied area section operate argument cannot really used mean defeating application unless one make one mind whether paragraph 7 true mr kennett right honour yes honour standing accepted true unless damaged cross examination mr kennett yes think longer open say application fail threshold nothing support critical point critical point would need tested presumably final hearing matter dismissed reason delay honour everything else went favour plaintiff might case matter went full court 486a issue go full court determined separately mr kennett yes honour may course instructor listened transcript hearing find contest correctness know moment honour transcript hearing mr kennett tribunal hearing honour yes postulating really reference tribunal passport one looked behind see tribunal member actually said might emerge tribunal member speaking something file rather something plaintiff handed tribunal mr kennett quite yes honour put issue one side still oppose matter going full court relief granted mr kennett yes honour would oppose firstly ground delay assuming time limit court rule relevant one honour six month certiorari mr kennett would say gone far honour nothing mandamus refugee review tribunal judicial tribunal mr kennett applicant seek substance would submit overturn purport decision tribunal relief might crafted consist mandamus prohibition prevent future action taken whatever relief sought might applicant need matter substance establish purported decision tribunal invalid honour certiorari needed mr kennett would submit de facto certiorari one focus time limit provided remedy honour de facto certiorari ask writ certiorari mr kennett honour point friend say application prohibition time limit honour would granted unless certiorari granted mr kennett would submission honour yes honour say six month eight month beyond six month period one point let put agree section 424a 1 requires particular information referred must given writing mr kennett yes honour honour saapheld paragraph c invitation applicant comment must writing mr kennett yes honour b ensuring applicant understands relevant review writing section 424a 2 us word except paragraph withdraw say subsection 1 b writing mr kennett sure ever considered honour think would accept whole task done writing honour communicate people document oral word mr kennett yes honour suppose really open minister challenge correctness construction putting supported majority insaap would put argument along line thing tribunal member deal plaintiff writing take reason decision given tribunal member face must said look got passport 30 september 2002 leave nepal almost two year 18 month say threatening incident february 2003 would orally indicating information tribunal considered would reason affirming decision orally trying ensure applicant understood relevant orally inviting applicant comment mr kennett yes honour honour deficiency writing mr kennett right yes honour would also point time tribunal decision applicant complain treatment amended application filed federal magistrate court lawyer applicant apply minister file application done without aid federal magistrate court complained way country information employed stale country information relied would also point fact applicant never said difference would made tribunal member written piece paper various thing seems said orally mr kennett majority insaap would point thing honour honour yes one thing happening within time however technical unmeritorious point good point happening within time mr kennett yes honour right another point reminded exchange hearing think honour referring bottom page 6 top page 7 tribunal reason tribunal member seems put plaintiff obtained passport particular date left nepal almost two year later response plaintiff appears confirm correctness rather challenge seek time disprove matter add suppose point case substantial unfairness even though might analysis failure comply strict term statute lack substantial unfairness consideration would add outlined writing application permitted made time honour speak point made writing leave one side evidentiary question passport got member point turn really delay section 486a mr kennett yes additional element delay making request intervention minister request exhibit 2 plaintiff first affidavit particular provision act referred seem clearly request minister exercise discretion section 417 discretion substitute decision tribunal favourable decision argument taking step involves adopting another procedural avenue adopting course presupposes accepts tribunal decision legally effective honour bit sophisticated though people like plaintiff mr kennett sophisticated people like plaintiff although evidence letter prepared step would submit make harder plaintiff say tribunaldecision fact legally effective infected jurisdictional error honour think case rely relation especially second one da v minister immigration multicultural affair argument putting succeeded justice sundberg said applicant made considered decision elect favour section 417 course minister said cannot application court review application section 417 must choose choice factually speaking seems stronger argument plaintiff case moving fog ignorance mr kennett point certainly heightened form indasbecause issue put squarely plaintiff made choice would say choice made although perhaps without need choose put plaintiff quite stark term applicant evidence paragraph 9 10 first affidavit letter drafted solicitor registered migration agent perhaps complete fog ignorance done advice honour problem advice plaintiff say taking whole partly wrong yes think need hear time mr kennett mr jenkins answer proposition client depends application extension time month flaw tribunal member let ask anything wrong tribunal member communicated plaintiff writing mr jenkins would submit honour mr jenkins tribunal member sufficiently alert plaintiff relevance information honour sure know page 6 7 14 reason plaintiff said anything either affidavit understanding point would done given writing anything character cannot take reason decision face value mr jenkins strong policy consideration underlie section need place information form part reason cannot merely read face record requires writing explanation plaintiff information relevant tribunal member comment record insufficient satisfy section honour give particular information namely date passport light way express sound though result question flagging normal hearer something troubling therefore answered wrong way might part reason arriving adverse decision mr jenkins think honour touch appropriate form word might normal listener honour represented mr jenkins tribunal honour represented accompanied honour mr jenkins friend honour friend speak english mr jenkins instructed spoke little english honour would submit tribunal need go next step tribunal need say passport effort flag issue rather say passport prior incident claim found well founded fear chose leave go make uncertain term information relevant would relied upon would submit tribunal done honour put answer recorded indicate plaintiff understood information relevant way might relied material bottom page 6 top page 7 record line response say biding time could find suitable hiding quite sure mean giving explanation delay said could understand would wait clearly reasonable financial position leave passport give another explanation remained kathmandu safe incident february 2003 looking place go answer seem indicate understanding delay might count needed accounted mr jenkins honour would submit interpretation response mean represent high standard honour put understanding relevance information tribunal member putting plaintiff rather ability lowest level submit ability communicate tribunal ability put forward claim respond question would submit reach high standard required section understanding relevance tribunal member putting honour saying sentence written piece paper piece paper given would satisfied 424a mr jenkins would submit honour next step tribunal need go say claim making information provided become aware information rely upon reason give refuse claim affirm decision delegate need clear nexus information tribunal seeking use way manifest reason decision honour anything point anything else want put need bother 486a really talking whether get 486a think need bother doctrine election choice arising applying minister rather mr jenkins would honour require assistance regarding delay issue honour accepting account given affidavit namely go except explanation plaintiff begin 30 may 2005 searching avenue appeal letter dated 26 may 2005 cover tribunal reason sent state may limited right seek review decision federal court federal magistrate court high court strict time limit emphasised within application review court must filed strongly advise promptly seek legal advice wish seek review court affidavit say know tribunal decision believed return nepal know could appeal decision tribunal 30 june spoke friend would slightly outside first time period friend said go see lawyer lawyer gave say wrong advice think follow explanation paragraph 7 gap 30 may 30 june answer question think understand delay argument anything want say mr jenkins nothing honour honour 2 august 2006 plaintiff filed application show cause writ certiorari mandamus issue second defendant writ prohibition issued first defendant ground relief claimed second defendant refugee review tribunal tribunal failed comply withsection 424aof themigration act1958

Wallaby Childcare Bundoora Pty Ltd as Trustee for Pelican Childcare Bundoora Unit Trust [2013] FWCA 6517 (5 September 2013).txt

wallaby childcare bundoora pty ltd trustee pelican childcare bundoora unit trust 2013 fwca 6517 5 september 2013 2013 fwca 6517fair work commissiondecisionfair work act 2009s 185 enterprise agreementwallaby childcare bundoora pty ltd trustee pelican childcare bundoora unit trust wallaby childcare bundoora ag2013 8472 wallaby childcare bundoora agreementchildren servicescommissioner wilsonmelbourne 5 september 2013application approval wallaby childcare bundoora agreement 1 application made approval enterprise agreement known thewallaby childcare bundoora agreement agreement application made pursuant tos 185of thefair work act 2009 act made wallaby childcare bundoora pty ltd trustee pelican childcare bundoora unit trust applicant agreement single enterprise agreement 2 satisfied requirement ofss 186 187 188and190as relevant application approval met 3 accepted undertaking attached decision marked annexure provided applicant undertaking attached agreement taken term agreement pursuant tos 191of act 4 agreement approved accordance withs 54of act operate 12 september 2013 nominal expiry date agreement 30 june 2015 commissionerannexure aprinted authority commonwealth government printer price code j ae403704pr541203

1908595 (Refugee) [2022] AATA 1494 (15 March 2022).txt

1908595 refugee 2022 aata 1494 15 march 2022 last updated 6 june 20221908595 refugee 2022 aata 1494 15 march 2022 decision recorddivision migration refugee divisioncase number 1908595country reference afghanistanmember shahyar roushandate 15 march 2022place decision sydneydecision tribunal remit matter reconsideration direction applicant satisfies 36 2 migration act statement made 15 march 2022 1 14pmcatchwordsrefufee protection visa afghanistan race hazara religion shi particular social group returnee west fear killing fear kidnapping taliban takeover country mass casualty terrorist attack prospective security situation decision review remittedlegislationmigration act 1958 s 5 1 5h 5j 5la 36 57 65 499migration regulation 1994 schedule 2any reference appearing square bracket indicate information omitted decision pursuant tosection 431of themigration act 1958and replaced generic information allow identification applicant relative dependant statement decision reasonsapplication review1 application review decision made delegate minister home affair 27 march 2019 refuse grant applicant protection visa unders 65of themigration act 1958 cth act background2 applicant age year old national afghanistan hazara ethnicity follower shi islam 3 24 june 2015 applicant lodged combined partner visa subclass 309 100 application granted 4 april 2016 first arrived australia may 2016 partner visa class uf temporary subclass 309 24 march 2017 relationship applicant partner broke june 2017 departed australia visit family afghanistan returned australia august 2017 15 november 2018 applicant partner notified department breakdown relationship 4 25 december 2018 applicant lodged application protection visa represented representative connection application claim evidenceprotection visa application5 according protection visa application form applicant born kabul parent specified family member reside afghanistan completed school afghanistan number year prior departure worked occupation 1 specialising noted area continued work profession since arrival australia 6 applicant made following claim protection visa application 7 left afghanistan may 2016 marry live australian citizen wife marriage subsequently broke travelled back afghanistan june 2017 remained period approximately six week although left matrimonial home shortly visit afghanistan returned australia believing may able reconcile wife 8 fear persecuted taliban isi terrorist group due ethnicity religion resided australia number year situation afghanistan particularly kabul worsened continues deteriorate since applied partner visa 2015 terrorist group regularly carrying attack hazaras shi kabul taliban making significant advance taking rural area afghanistan including large part ghazni province u force withdraw afghanistan imminently taliban take control kabul rest afghanistan 9 taliban accept nothing le subjugation hazaras case period 1997 2001 risk killed kidnapped otherwise seriously harmed taliban terrorist group hazara shi risk effectively imprisoned ghetto unable leave area access essential service healthcare shi place worship may also destroyed shut 10 government unable protect hazaras shi currently cannot relocate safe place relocate demonstrated attack hazaras jaghori kabul supporting documents11 representative made written submission dated 11 february 2019 department support applicant protection visa application relation applicant claim representative submitted applicant return afghanistan would likely remain kabul applicant father ancestral village located district 1 consisting mixture hazara pashtun village taliban long presence district travel district dangerous hazaras stated increasing attack several major provincial city past two year taliban area control gradually expanding hazara district jaghori malestan ghazni province recently attacked taliban imminent serious risk faced hazaras shi near future taliban take effective control afghanistan u interest protecting shi hazaras risk persecution taliban take afghanistan interview12 applicant attended interview delegate minister 12 february 2019 interview conducted assistance interpreter hazaragi english language applicant representative also present interview applicant request father ex spouse present interview support person declined delegate relevant applicant oral evidence interview referred tribunal analysis post interview submissions13 18 february 2019 representative submitted three untranslated document department covering submission explained document prescription medication issued applicant father purpose treating heart condition evidence submitted response department request interview evidence support applicant claim visit afghanistan june 2017 prompted father suffered heart attack 14 25 february 2019 department wrote applicant pursuant tos 57of act inviting provide comment relation delegate concern regarding applicant claim hazara ethnicity follower shi faith 15 25 march 2019 representative responded department invitation stating applicant maintains hazara ethnicity shi faith equally fluent dari hazaragi dialect representative also submitted supporting statement leader afghan community leader australia 16 detailed statement leader stated basis wide experience closely involved hazara community lived kabul many year australia well meeting applicant following interview doubt applicant hazara ethnicity leader also concluded applicant clearly shi muslim delegate decision17 27 march 2019 delegate refused applicant protection visa application delegate accepted applicant hazara shi muslim however expressed concern applicant may largely motivated economic factor general desire remain australia rather fear harm afghanistan delegate accept applicant claim would targeted fear harmed afghanistan reason based available country information time delegate satisfied applicant well founded fear persecution afghanistan reason race religion membership particular social group failed asylum seeker western country delegate also satisfied real risk applicant face significant harm removed australia review application18 8 april 2019 applicant applied review delegate decision 19 carefully considered evidence tribunal decided sufficient material available enable decide review applicant favour without hearing consideration claim evidencethe relevant law20 criterion protection visa set in 36of act schedule 2 themigration regulation 1994 cth regulation applicant visa must meet one alternative criterion 36 2 aa b c either person respect australia protection obligation refugee criterion complementary protection ground member family unit person person hold protection visa class 21 section 36 2 provides criterion protection visa applicant visa non citizen australia respect minister satisfied australia protection obligation person refugee 22 person refugee case person nationality outside country nationality owing well founded fear persecution unable unwilling avail protection country 5h 1 case person without nationality refugee outside country former habitual residence owing well founded fear persecution unable unwilling return country 5h 1 b 23 5j 1 person well founded fear persecution fear persecuted reason race religion nationality membership particular social group political opinion real chance would persecuted one reason real chance persecution relates area relevant country additional requirement relating well founded fear persecution circumstance person taken fear set s 5j 2 6 s 5k la extracted attachment decision 24 person found meet refugee criterion 36 2 may nevertheless meet criterion grant visa non citizen australia respect minister satisfied australia protection obligation minister substantial ground believing necessary foreseeable consequence removed australia receiving country real risk suffer significant harm 36 2 aa complementary protection criterion meaning significant harm circumstance person taken face real risk significant harm set s 36 2a 2b extracted attachment decision mandatory considerations25 accordance ministerial direction 84 made 499 act tribunal taken account refugee law guideline complementary protection guideline prepared department home affair country information assessment prepared department foreign affair trade dfat expressly protection status determination purpose extent relevant decision consideration analysis finding reasons26 following reason tribunal concluded decision review remitted reconsideration 27 already noted whilst delegate accepted applicant shi hazara basis information available time satisfied applicant face real chance real risk serious significant harm afghanistan reason including race religion however since delegate decision refuse application drastic change occurred afghanistan particular political order security landscape human right situation significantly impacted following taliban takeover country august 2021 28 early september 2021 taliban announced formation interim government declared islamic emirate afghanistan appointed mostly pashtun chiefly long serving taliban commander key government position 1 according dfat taliban previously presided period considerable hardship ethnic religious minority promised inclusive government would representative afghanistan ethnicity claimed fulfilled appointing handful uzbek tajik single hazara mostly technical role 2 29 taliban divided faction moderate hardliner different aim expectation governance factional nature taliban different sub group within organisation competing influence control group also appears struggling regulate action ten thousand foot soldier mean behaviour ground including violence towards risk group may inconsistent proclamation central taliban authority may reflect local grievance 3 30 dfat assessed whilst afghanistan security situation remains volatile country whole relatively le dangerous due cessation armed conflict taliban takeover august 2021 nevertheless dfat also noted afghanistan remains dangerous country ongoing threat terrorism kidnapping form violence 4 31 european asylum seeker office easo likewise confirmed situation afghanistan remains volatile rendering conclusive assessment international protection need particularly difficult 5 november 2021 country guidance easo highlighted following element due short time since taliban takeover information general limited conflicting limitation regard reliable reporting also taken account reporting afghanistan certain part country likely future behaviour taliban lack certain predictability profile targeted taliban may increased risk taking account actor increased capability territorial control frequency security incident number civilian casualty generally decreased since taliban takeover future risk indiscriminate violence part country assessed caution based recent information concerning dynamic particular area well country whole 6 32 recently united nation high commissioner human right observed despite significant decline armed hostility afghanistan drastic reduction civilian casualty full range civil political economic social cultural right people afghanistan regressed 7 similarly february 2022 uk home office reported taliban generally maintains control area country level indiscriminate violence arising conflict significantly diminished area country 8 report however also referred briefing un security council 26 january 2022 secretary general special representative afghanistan m deborah lyon stating since previous briefing appears de facto authority attempted constrain islamic state ability carry major attack yet small scale attack still carried particularly religious minority 9 33 source consulted tribunal suggest islamic state khorasan province iskp significant contributor volatility incident violence afghanistan iskp afghanistan offshoot daesh strongly opposed shi muslim west group responsible multiple mass casualty terrorist attack since august 2021 according dfat iskp carried dozen terrorist attack 2020 2021 erstwhile afghan national government also taliban terrorist attack remain possible anywhere country major attack likely key city given increased profile iskp get attack iskp grew strength 2021 including recruitment disaffected taliban member well fighter released prison iskp claimed responsibility bombing kabul hamid kharzai airport 26 august 2021 suicide bomb attack shi mosque kunduz province 8 october 2021 killed 70 people chiefly hazaras another suicide bombing shi mosque kandahar province taliban home province killed 63 people 15 october 2021 well hospital bombing kabul 2 november 2021 killed 25 iskp also reportedly responsible dozen smaller attack since august 2021 10 34 credible report continued high level sectarian motivated violence shi muslim also belong hazara ethnic group easo reported attack insurgent group mainly attributed iskp consider hazara shi heretical legitimate target iskp also target hazara due perceived closeness support iran fight islamic state syria attack hazara shi minority population targeted place gathering mosque religious commemoration wedding site including hospital hazara dominated neighbourhood large city including kabul herat shi community disproportionately represented among civilian casualty 11 35 similarly uk home office reported increase attack iskp targeting civilian particularly shi hazaras since taliban takeover attack appear occurred mostly northern southern province well kabul city 12 36 also report hazara civilian abducted killed travelling along road armed group taliban however reason targeting individual may also identified non political communal dispute individual member afghan national security force job government ngo sector 13 37 recent thematic report relation afghanistan dfat referred statement taliban indicating possible support hazara victim iskp violence however report also stated taliban may attempting disrupt iskp prevent attack hazaras along taliban professed amnesty indicate put aside historical antipathy towards hazaras since takeover august 2021 taliban summarily executed hazaras former member security force furthermore hundred hazara family forcibly evicted home central afghanistan taliban claim eviction property dispute ngo described form ethnic cleansing although one source suggests eviction may result local score settling rather ethnically based 14 38 dfat assessed hazaras afghanistan face high risk harassment violence taliban iskp basis ethnicity sectarian affiliation dfat also assessed shi face high risk targeted iskp militant group basis religious affiliation assembling large identifiable group risk increase living shi majority ethnic hazara neighbourhood major city kabul herat 15 39 basis persuasive evidence submitted department accepted delegate tribunal accepts applicant national afghanistan tribunal accepts hazara shi tribunal accepts applicant continue identify associate hazara shi community return afghanistan tribunal accepts applicant resided kabul came australia member immediate family continue reside kabul would seek reside kabul return afghanistan 40 carefully considered evidence including country information set tribunal find applicant return kabul real chance face threat life liberty significant physical harassment significant physical ill treatment tribunal satisfied treatment amount persecution tribunal find essential significant reason persecution feared applicant race religion tribunal find applicant real chance persecution relates area afghanistan 41 reason given tribunal find applicant well founded fear persecution afghanistan defined 5j act tribunal find applicant refugee 5h 1 act 42 tribunal therefore satisfied applicant person respect australia protection obligation 36 2 decision43 tribunal remit decision review reconsideration direction applicant satisfiess 36 2 themigration act shahyar roushansenior memberattachment extract frommigration act 19585 1 interpretation cruel inhuman treatment punishmentmeans act omission severe pain suffering whether physical mental intentionally inflicted person b pain suffering whether physical mental intentionally inflicted person long circumstance act omission could reasonably regarded cruel inhuman nature include act omission c inconsistent article 7 covenant arising inherent incidental lawful sanction inconsistent article covenant degrading treatment punishmentmeans act omission cause intended cause extreme humiliation unreasonable include act omission inconsistent article 7 covenant b cause intended cause extreme humiliation arising inherent incidental lawful sanction inconsistent article covenant torturemeans act omission severe pain suffering whether physical mental intentionally inflicted person purpose obtaining person third person information confession b purpose punishing person act person third person committed suspected committed c purpose intimidating coercing person third person purpose related purpose mentioned paragraph b c e reason based discrimination inconsistent article covenant include act omission arising inherent incidental lawful sanction inconsistent article covenant receiving country relation non citizen mean country non citizen national determined solely reference law relevant country b non citizen country nationality country former habitual residence regardless whether would possible return non citizen country 5h meaning refugee 1 purpose application act regulation particular person australia person arefugeeif person case person nationality outside country nationality owing well founded fear persecution unable unwilling avail protection country b case person nationality outside country former habitual residence owing well founded fear persecution unable unwilling return note meaning ofwell founded fear persecution seesection 5j 5j meaning well founded fear persecution 1 purpose application act regulation particular person person awell founded fear persecutionif person fear persecuted reason race religion nationality membership particular social group political opinion b real chance person returned receiving country person would persecuted one reason mentioned paragraph c real chance persecution relates area receiving country note membership particular social group seesections 5kand5l 2 person awell founded fear persecutionif effective protection measure available person receiving country note effective protection measure seesection 5la 3 person awell founded fear persecutionif person could take reasonable step modify behaviour avoid real chance persecution receiving country modification would conflict characteristic fundamental person identity conscience b conceal innate immutable characteristic person c without limiting paragraph b require person following alter religious belief including renouncing religious conversion conceal true religious belief cease involved practice faith ii conceal true race ethnicity nationality country origin iii alter political belief conceal true political belief iv conceal physical psychological intellectual disability v enter remain marriage person opposed accept forced marriage child vi alter sexual orientation gender identity conceal true sexual orientation gender identity intersex status 4 person fear persecution one reason mentioned paragraph 1 reason must essential significant reason reason must essential significant reason persecution b persecution must involve serious harm person c persecution must involve systematic discriminatory conduct 5 without limiting serious harm purpose paragraph 4 b following instance ofserious harmfor purpose paragraph threat person life liberty b significant physical harassment person c significant physical ill treatment person significant economic hardship threatens person capacity subsist e denial access basic service denial threatens person capacity subsist f denial capacity earn livelihood kind denial threatens person capacity subsist 6 determining whether person awell founded fear persecutionfor one reason mentioned paragraph 1 conduct engaged person australia disregarded unless person satisfies minister person engaged conduct otherwise purpose strengthening person claim refugee 5k membership particular social group consisting familyfor purpose application act regulation particular person thefirst person determining whether first person well founded fear persecution reason membership particular social group consists first person family disregard fear persecution persecution member former member whether alive dead family ever experienced reason fear persecution reason mentioned paragraph 5j 1 b disregard fear persecution persecution first person ever experienced ii member former member whether alive dead family ever experienced reasonable conclude fear persecution would exist assumed fear persecution mentioned paragraph never existed note section 5gmay relevant determining family relationship purpose section 5l membership particular social group familyfor purpose application act regulation particular person person treated member particular social group person family characteristic shared member group b person share perceived sharing characteristic c following apply characteristic innate immutable characteristic ii characteristic fundamental member identity conscience member forced renounce iii characteristic distinguishes group society characteristic fear persecution 5la effective protection measure 1 purpose application act regulation particular person effective protection measure available person receiving country protection persecution could provided person relevant state ii party organisation including international organisation control relevant state substantial part territory relevant state b relevant state party organisation mentioned paragraph willing able offer protection 2 relevant state party organisation mentioned paragraph 1 taken able offer protection persecution person person access protection b protection durable c case protection provided relevant state protection consists appropriate criminal law reasonably effective police force impartial judicial system 36 protection visa criterion provided act 2 criterion protection visa applicant visa non citizen australia respect minister satisfied australia protection obligation person refugee aa non citizen australia non citizen mentioned paragraph respect minister satisfied australia protection obligation minister substantial ground believing necessary foreseeable consequence non citizen removed australia receiving country real risk non citizen suffer significant harm b non citizen australia member family unit non citizen mentioned paragraph ii hold protection visa class applied applicant c non citizen australia member family unit non citizen mentioned paragraph aa ii hold protection visa class applied applicant 2a non citizen suffersignificant harmif non citizen arbitrarily deprived life b death penalty carried non citizen c non citizen subjected torture non citizen subjected cruel inhuman treatment punishment e non citizen subjected degrading treatment punishment 2b however taken real risk non citizen suffer significant harm country minister satisfied would reasonable non citizen relocate area country would real risk non citizen suffer significant harm b non citizen could obtain authority country protection would real risk non citizen suffer significant harm c real risk one faced population country generally faced non citizen personally 1 dfat thematic report political security development afghanistan august 2021 january 2022 january 2022 january 2022 2 ibid 3 ibid 4 ibid 5 easo country guidance afghanistan common analysis guidance note november 2021 http euaa europa eu site default file country_guidance_afghanistan_2021 pdf 6 ibid 7 united nation high commissioner human right situation human right afghanistan report united nation high commissioner human right hrc 49 24 unhchr 4 march 2022 8 uk home office country policy information note afghanistan security situation february 2022 afg cpin security situation publishing service gov uk 9 ibid 10 dfat n1 11 easo n5 12 uk home office n8 13 ibid 14 dfat n1 15 ibid

Roberts-Smith and Inspector General Australian Defence Force (Freedom of information) [2023] AATA 335 (6 March 2023).txt

robert smith inspector general australian defence force freedom information 2023 aata 335 6 march 2023 last updated 8 march 2023roberts smith inspector general australian defence force freedom information 2023 aata 335 6 march 2023 division freedom information divisionfile number 2022 6920re robert smith vc mgapplicantandinspector general australian defence forcerespondentdecisiontribunal justice thawley deputy presidentdate 6 march 2023place sydneythe tribunal make following order pursuant tosection 35 4 theadministrative appeal tribunal act 1975 cth order disclosure person respondent respondent representative tribunal tribunal staff redacted part t5 t14 t17 t18 lodged 28 october 2022 prohibited sgd justice thawley deputy presidentcatchwordsfreedom information request confidentiality order information tribunal document confidentiality order grantedlegislationadministrative appeal tribunal act 1975 cth s 35 4 35 5 37 1 b freedom information act 1982 cth s 4 1 37 1 b 46 b 47f 63 1 casesnews corporation limited v national company security commission 1984 5 fcr 88reasons decisionjustice thawley deputy presidentintroductionon 26 august 2022 mr robert smith applied administrative appeal tribunal review decision freedom informationcommissionerinsofar upheld decision respondent inspector general australian defence force igadf four document three diary entry calendar entry exempt production thefreedom information act 1982 cth foi act 28 october 2022 igadf lodged tribunal document relevant review required bys 37 1 b theadministrative appeal tribunal act 1975 cth aat act four tribunal document contained redaction t5 t14 t17 t18 confidential document direction hearing 21 november 2022 igadf representative requested tribunal make order 35 4 aat act prohibiting restricting publication disclosure redacted part confidential document andmr robert smith representative opposed making order final basis instead sought appropriate direction imposed interim basis enable exchange submission evidence question whether order made direction made 21 november 2022 party provide written submission evidence relation order sought igadf direction made following term confidentiality order made pursuant 35 4 aat act respect redacted part t5 t14 t17 t18 document lodged 37 1af aat act prohibiting disclosure part person respondent respondent representative tribunal tribunal staff tribunal determines respondent application order pursuant 35 4 aat act confidentiality application access much respondent evidence submission refer information subject order 3 restricted respondent respondent representative tribunal tribunal staff tribunal determines confidentiality application 9 december 2022 igadf representative filed written submission support proposed 35 4 order confidential affidavit deputy igadf commodore fiona sneath sworn 9 december 2022 sneath affidavit sneath affidavit seen mr robert smith representative 16 december 2022 mr robert smith representative filed written submission whilst mr robert smith still opposed making confidentiality order final basis oppose direction made tribunal determined review decision commissioner subject tribunal satisfied redacted information disclosed would reveal content information subject foi request party content tribunal determine application order 35 4 paper without need oral hearing statutory frameworksection 35 aat act includes 4 tribunal may order give direction prohibiting restricting publication disclosure including party information relates proceeding b following information comprises evidence information evidence ii information lodged otherwise given tribunal 5 considering whether give direction subsection 2 3 4 tribunal take basis consideration principle desirable hearing proceeding tribunal held public b evidence given tribunal content document received evidence tribunal made available public party c content document lodged tribunal made available party however without required seek view party tribunal pay due regard reason favour giving direction including purpose subsection 3 4 confidential nature applicable information section 63 1 foi act set certain matter tribunal must regard considering whether make direction section 35 4 aat act 1 determining whether tribunal satisfied desirable make order order undersubsection 35 2 3 4 theadministrative appeal tribunal act 1975 tribunal must regard necessity avoiding disclosure applicant exempt matter contained document proceeding relate phrase exempt matter defined 4 1 foi act matter inclusion document cause document exempt document phrase exempt document defined 4 1 foi act includes document exempt part iv foi act includes document falling within term section 37 1 b 46 b 47f foi act section 37 1 b concerned information could reasonably expected disclose enable person ascertain existence identity confidential source information non existence confidential source information relation enforcement administration law section 46 b concerned document disclosure would contrary relevant direction andsection 47f relates document would involve unreasonable disclosure personal information person disclosure would balance contrary public interest considerationmr robert smith submits accept determination whether redacted material confidential document contains exempt matter regard s 37 1 b 46 b 47f foi act may pre judge interlocutory basis similar identical question focus tribunal review commissioner decision occur decision commissioner affirmed decision igadf diary entry exempt 46 b foi act exempt provision decision principal focus review satisfied sufficient connection information redacted confidential document content diary entry disclosure former would disclose least part content latter satisfied circumstance appropriate make direction 35 4 see example news corporation limited v national company security commission 1984 5 fcr 88 taken account matter 35 5 mr robert smith contended order 35 4 made final basis mr robert smith contended order would continue determination tribunal review order whichever earlier difficulty form order 35 4 direction would terminate conclusion review even review unsuccessful preferable course make order subject order mr robert smith successful application review issue revisited respondent sought cost application mr robert smith submitted question cost follow result review neither party referred 66 foi act question cost addressed conclusion application review decisionfor reason set following order made pursuant tosection 35 4 theadministrative appeal tribunal act 1975 cth order disclosure person respondent respondent representative tribunal tribunal staff redacted part t5 t14 t17 t18 lodged 28 october 2022 prohibited ul none list style none icertify preceding 16 paragraph true copy reason decision herein justice thawley deputy president sgd associatedated 6 march 2023date final submission received 16 december 2022counsel applicant moses sc p sharpsolicitors applicant mark brien legalcounsel respondent c ernstsolicitors respondent australian government solicitor

Environment Protection Authority 2012_06815 [2013] SAOmbFOI 31 (5 November 2013).txt

environment protection authority 2012 06815 2013 saombfoi 31 5 november 2013 last updated 12 november 2013determinationexternal review section 39freedom information act 1991applicant hon mark parnell mlcagency environment protection authorityombudsman reference 2013 06815agency reference 05 21205determination determination agency confirmed reasonsbackgroundapplication accessby application thefreedom information act 1991 thefoi act applicant requested access copy correspondence filenotes email minute memo documentation describing communication bespoke approach kevin foley ian smith alexander downer nick bolkus concerning operation nyrstar smelter port pirie backgroundthe procedural step relating application external review set appendix determination jurisdictionthis external review within jurisdiction ombudsman relevant review authority section 39 foi act exercised discretion section 39 4 foi act extend time making application external review provisional determinationi provided tentative view agency determination party provisional determination dated 17 october 2013 informed party subject receipt consideration submission party proposed confirm agency determination agency provided submission response considered submission reason relevant lawa person legally enforceable right given access agency document accordance foi act 1 section 39 11 foi act provides may confirm vary reverse agency determination external review based circumstance existing time review issue reviewthe agency claim unable locate document relate applicant request letter notifying agency external review specifically requested document provided applicant cannot located agency provide statutory declaration relevant staff attesting nature specific search conducted search conductedthe full name electronic database searched along brief description content databasesthe agency reference number paper file searchedconfirmation regarding whether document requested found result search conducted considerationthe foi act prescribe manner agency must search document within scope application district court stated search document must reasonable sufficient 2 role external review determine evidence provided whether agency conducted reasonable search document circumstance 5 august 2013 agency requested extension time order respond notification external review office granted extension 12 august 2013 agency provided response 9 august 2013 advising undertaken search record unable locate document relate applicant request agency attached response series email officer requesting search undertaken resultant reply despite granted extension upon request agency provide statutory declaration attesting actual search conducted document within scope review email agency attached response accompanied information explanation search conducted agency staff agency specifically address request detail notification external review expressed view provisional determination scant response agency particularly provided extension time unsatisfactory noted basis information provided agency satisfied agency conducted reasonable search document subsequent response provisional determination agency provided series statutory declaration officer requested undertake search agency foi unit statutory declaration agency officer attest document located agency advised detailed search conducted integrated information system ii database complaint report environmental significance care database provided screenshot search recfind system comment agency appears misunderstood request statutory declaration relevant staff case likely sufficient provide statutory declaration staff member within foi team attesting specific detail result database recfind search rather providing statutory declaration 20 officer emailed request conduct search misunderstanding may contributed agency view request statutory declaration usual fact uncommon request agency provide statutory declaration case sufficiency search conducted document likely issue satisfied agency conducted reasonable search document document within scope application located light view confirm agency determination pursuant section 39 11 foi act richard binghamsa ombudsman5 november 2013appendixsignificant procedural stepsdateevent19 april 2013the agency received foi application dated 18 april 2013 19 may 2013the agency failed determine application within 30 day period required foi act 3 deemed refused access document 4 24 may 2013the agency received internal review application dated 24 may 2013 8 june 2013the agency failed determine application within statutory time frame taken confirmed original determination 5 12 july 2013the ombudsman received applicant request external review dated 12 july 2013 16 july 2013the agency provided applicant determination stating unable identify document within scope application 22 july 2013the ombudsman advised agency external review requested submission documentation 5 august 2013the agency requested extension 12 august 2013 provide response ombudsman 7 august 2013the agency provided ombudsman submission documentation 17 october 2013the ombudsman provided agency applicant provisional determination 31 october 2013the agency provided submission ombudsman provisional determination 1 section 12 2 akritidis v police commissioner 1998 sadc 291 23 april 1999 20

Port Cygnet Planning Scheme 1988 amendment PSA-5_2013 [2013] TASPComm 52 (18 November 2013).txt

port cygnet planning scheme 1988 amendment psa 5 2013 2013 taspcomm 52 18 november 2013 last updated 5 december 2013decision reason decisionamendmentpsa 5 2013planning instrumentport cygnet planning scheme 1988planning authorityhuon valley councildate decision18 november 2013delegatemr peter fischerdate commission delegation7 october 2013description draft amendmentto rezone 71 73 75 mary street cygnet ct 117565 3 117565 2 197373 1 closed residential business decisionthe commission reject draft amendment pursuant tosection 41 b theland use planning approval act 1993peter fischerdelegatetasmanian planning commissionreasons recommendationbackgroundtown country planning pty ltd behalf owner dr hackett previously applied amendment psa 1 2012 port cygnet planning scheme 1988 introduce specified departure provide consulting room health centre use permitted land 73 mary street cygnet following hearing commission decided 5 march 2013 reject amendment psa 1 2012 fresh draft amendment proposed council motion affecting 73 mary street adjoining lot 75 mary street also owned dr hackett 71 mary street cygnet police station residence amendmentthe draft amendment proposes amend plan rezone 6 096 m2of land comprising adjoining lot 71 73 75 mary street cygnet ct 117565 3 117565 2 197373 1 closed residential business representationsno representation received public exhibition draft amendment planning authority recommendationthe planning authority report pursuant tosection 39of theland use planning approval act 1993advised representation received respect draft amendment recommended draft amendment approved without modification date place hearingdate hearing wednesday 6 november 2013time 2 00 pmlocation tasmanian planning commissionlevel 3 144 macquarie street hobartattendance hearingplanning authority m amanda bayermr shane wellscommission assessment draft amendmentsite localitythe site draft amendment rectangular parcel land formed 3 adjoining lotsas follows addressareatitleowner71 mary street cygnet1 170 m2117565 3the crown department police public safety 73 mary street cygnet1 304 m2117565 2dr hackett75 mary street cygnet30622 m2197373 1dr hackettthe site located western side mary street cygnet charles street north fredrick street south title 73 mary street encumbered right carriageway 10 80 wide along northern boundary providing access 75 mary street common ownership located rear 73and 71 mary street access site mary street east arterial road listed category 4 feeder road tasmania state road hierarchy part channel highway care maintenance department infrastructure energy resource site serviced water sewerage stormwater electricity telecommunication infrastructure site form part upper terrace agnes rivulet elevation approximately 20 australian height datum ahd83 drain towards rivulet southeast gentle slope south eastern corner site 71 mary street used developed police residence cygnet police station non conforming use rest site currently vacant land adjoining site north zoned business used developed hotel adjoining land west zoned open space used developed tennis club otherwise surrounding land south west generally used developed residential land east opposite side mary street along rivulet crown land zoned open space currently leased local authority used caravan park business centre cygnet strip mary street approximately 500m long located approximately 330m south site consideration issuesplanning schemeclause 6 13 planning scheme provides area statement intent cygnet township follows emphasis added 6 13 area statement intent6 13 1 cygnet provided sufficient zoned land urban development next five year although possible expansion business zone may become necessary zoning located consolidate development within sewerage district retain option expansion specifically administrative business centre municipality diverse commercial developmentcygnet provided business zone b low density residential development limited area considered suitable traditional residential development slope terrain c area generally east mary street zoned reservedbusiness open space provide land necessary future extension business centreanda supplementary alternative route mary street area adjacent toby hill road zoned industrial purpose municipality port cygnet town cygnet environs planning scheme 1966 retained industrial zone e sloping high terrain west port cygnet adjacent clements marshall form important scenic backdrop town land presently used legitimately dispose effluent clements marshall horticulture agricultural pursuit zoned rural f industrial zone provided clements marshall processing factory adjacent saw mill clause 6 4 planning scheme provides intent closed residential zone follows 6 4 closed residential zone6 4 1 intent zone provide area residential use amenity given priority objective zone maximise use existing infrastructure opportunity logical economical extension ensure land us compatible pleasant residential living environment permitted 6 4 2 full utility service council satisfaction required within zone including reticulated water supply reticulated sewage disposal electricity sealed road kerbed guttered footpath street lighting considered appropriate council may require underground electric power reticulation 6 4 3 within closed residential zone upi parcel number 0505 0506 0507 0508 0509 george street lymington road cygnet indicated plan reference clause subdivision development shall subject development plan approved council pursuant clause 1 6 1 scheme development plan shall provide control access development access individual lot lymington road mary street closed residential zone allows use house permitted range residential us well local shop discretionary clause 6 7 planning scheme provides intent business zone follows 6 7 business zone6 7 1 primary intent zone provide centre designed service business shopping need population wholesale business selected commercial purpose incompatible primary intent zone may allowed discretion council utility service satisfaction council required business zone allows range us including permitted usesconsulting room health centre local shop passive recreation office professional office restaurant shop showroom take away food shop anddiscretionary usescar park civic building centre community building funeral parlour garden centre guest house house licensed establishment major shop shopping complex motel saleyard service centre service station store timberyard tourist operation transport depot veterinary establishment miscellaneous use also allowed discretionary business zone planning scheme provides reserved business open space zone without detailed statement intent limited us allowed home occupation passive recreation agriculture permitted car park utility discretionary reserved business open space zone applied land adjoining business zone east mary street cygnet council state purpose draft amendment site developed medical centre intended accommodate general practitioner allied health professional 4 consulting room however permit application accompany draft amendment draft amendment limit use site medical centre use eventuate many possible business us could developed particularly given scale site huon valley land use development strategyit noted current planning scheme proposed replaced new planning scheme near future planning authority adopted huon valley land use development strategy huon valley strategy october 2007 inform preparation new planning scheme chapter 12 settlement describes main street providing focus community town activity although town centre well focused building disparate feel united one strategy report finding cygnet township plan investigated planning streetscape need central part town relevant planning related outcome emphasis added need greater flexibility support theuse development mary street business precinctand retention cygnet general rural character give preference infill development along mary street toconsolidate existing business commercial district develop council land bounded golden valley louisa fredrick george streetsfor residential purposesandencourage fill development mary street north bp service station 42 mary street northern extent central business zone strategy also make reference report town structure plan tba planner pty ltd 1997 considered cygnet settlement indicative plan land use option adapted report shown cygnet map huon valley land use development strategy cygnet strategy cygnet map appended strategy noted council report justification draft amendment relies heavily cygnet map although map content referenced text huon valley strategy council report state cygnet huon valley strategy identifies mary street golden valley road north charles street guy road suitable potential commercial mixed use development business activity occur along mary street south area mary street lymington road cannel highway round area potential commercial mixed use development said assist achieving strategic direction cygnet contained strategy variety us within cygnet encouraged facilitate town resilience capacity serve need residentsencourage improvement streetscape within cygnet infill development occur within township subject infrastructure capacity council report omits recognise site draft amendment located within area shown potential commercial mixed use development cygnet map huon valley strategy instead shown adjacent within area residential infill residential development encouraged vacant land within town boundary site draft amendment zoned closed residential consistent strategic intent promote residential infill location southern tasmanian regional land use strategyin addition huon valley strategy planning authority adopted regional land use strategy southern regional planning area 27 october 2011 minister planning declared southern tasmanian regional land use strategy regional strategy special gazettal pursuant tosection 30c 3 act 1 regional strategy revised gazetted 13 november 2013 regional strategy cygnet identified township moderate growth strategy 10 20 increase dwelling 25 year mixed growth scenario residential growth greenfield infill development cygnet township identified function minor neighbourhood centre regional strategy activity centre hierarchy role serve daily need surrounding community provide focus day day life minor centre employment includes mix retail community health service gp small scale office based employment commercial including retail offer least one supermarket range specialty shop secondary retailing mix convenience range may include discount department store rural context often includes tourism related business government service community infrastructure consist local community service including community health service entertainment may include night time activity focussed dining local hotel residential us may interspersed emphasis residential amenity within activity centre regional strategy identifies limited amount growth expected cygnet settlement next 25 year however huon valley strategy identify need additional business zoned land cygnet beside area already zoned business reserved business open space council provided updated evidence suggest current strategy requires revision relation business zoning cygnet application state policiesstate policy protection agricultural land 2009the agricultural land policy defines agricultural land mean land agricultural use potential agricultural use zoned developed another use would unduly restricted agricultural use size shape proximity adjoining non agricultural us site zoned urban development site therefore classed agricultural land agricultural land policy apply land state coastal policy 1996the site located within 1 km port huon estuary therefore coastal policy applies land site located established township previously zoned residential use basis considered draft amendment complies provision coastal policy state policy water quality management 1997thestate policy water quality management 1997 water quality policy applies surface water including coastal water groundwaters privately owned water accessible public connected flow directly water accessible public water tank pipe cistern site undeveloped potential increase level stormwater run increase area impermeable surface risk sediment transport agnes river considered significant site likely contain acid sulfate soil planning authority may impose condition permit relation site minimise potential erosion water quality degradation therefore draft amendment considered consistent policy national environmental protection measure nepms national environment protection assessment site contamination measure 1999 nepm considered relevant draft amendment site known used potentially contaminating activity therefore considered draft amendment complies relevant nepm objective resource management planning systemschedule 1 lupaapart 1to promote sustainable development natural physical resource maintenance ecological process genetic diversity site draft amendment modified clearing grazing draft amendment impact maintenance ecological process genetic diversity provide fair orderly sustainable use development air land water draft amendment provide fair orderly use development land consistent intent planning scheme consolidate business development within existing business centre encourage public involvement resource management planning public involvement achieved exhibition process draft amendment facilitate economic development accordance objective set paragraph b c although draft amendment may facilitate economic development comply objective set paragraph b promote sharing responsibility resource management planning different sphere government community industry state responsibility resource management planning shared local authority tasmanian planning commission community industry part 2objectivesthe requirement sound strategic planning land use development planning easily integrated relevant policy state regional municipal level overlooked planning authority drafting proposed amendment conclusion draft amendmentas indicated discussion council hearing draft amendment lack strategic merit proposed draft amendment potential undermine strategic intent planning scheme consistent huon valley land use development strategy preference consolidation business use development within existing business zoned area mary street residential use development site basis draft amendment rejected 1 stca 2011 southern tasmanian regional land use strategy 2010 2035 southern tasmanian council authority hobart

N95_09186 [1996] RRTA 488 (11 March 1996).txt

n95 09186 1996 rrta 488 11 march 1996 refugee review tribunaldecision reason decisionrrt reference n95 09186tribunal martin tsamenyidate 11 march 1996place sydneydecision tribunal affirms delegate conclusion applicant dependant entitled protection visa 1 decision reviewthe applicant national fiji applicant arrived australia 1987 visitor visa valid one month expiration applicant visa remained illegally australia applicant application refugee status received department immigration ethnic affair 13 september 1991 6 august 1992 delegate minister immigration ethnic affair refused grant applicant refugee status applicant lodged another application department 24 march 1995 application also rejected 29 august 1995 applicant application refugee review tribunal tribunal received 29 september 1995 private hearing arranged applicant tribunal 11 march 1996 section 39of themigration reform act1992

Allitt and Tutton (Child support) [2022] AATA 5129 (15 November 2022).txt

allitt tutton child support 2022 aata 5129 15 november 2022 last updated 21 march 2023allitt tutton child support 2022 aata 5129 15 november 2022 division social service child support divisionreview number 2022 bc023216applicant mr allittother party child support registrarms tuttontribunal member h moreland presiding member senior member j longodecision date 15 november 2022decision decision review set aside tribunal make departure determination m tutton income purpose child support set 181 500 period 13 may 2021 30 june 2023 catchwordschild support departure determination income property financial resource liable parent ground departure established decision depart decision review set aside substitutednames used published decision pseudonym reference appearing square bracket indicate information removed decision replaced generic information identify involved individual required bysubsections 16 2ab 16 2ac thechild support registration collection act 1988 reason decisionbackgroundthe issue determined application whether reason change administrative assessment child support whether equitable otherwise proper mr allitt m tutton parent child 1 child 2 child 3 child 1 longer eligible child regard child support mr allitt m tutton two child support case one mr allitt payer 630600111 1 one m tutton parent liable pay child support 630600119 2 application child support registered service australia child support agency 21 april 2016 currently subject collection regard child 2 mr allitt 100 care m tutton 0 care regard child 3 mr allitt 0 care m tutton 100 care prior application m tutton assessed pay child support basis income 52 638 period 1 november 2021 21 february 2022 mr allitt income 90 762 3 13 may 2021 mr allitt applied agency departure administrative assessment basis special circumstance case administrative assessment child support reflective m tutton income property financial resource reason 8a 4 17 october 2021 agency found reason established changed assessment m tutton income purpose child support set 126 000 per annum period 1 july 2021 31 october 2023 5 4 november 2021 mr allitt objected original decision 26 november 2021 m tutton also objected original decision 19 january 2022 objection officer decided set aside original decision set m tutton income purpose child support 135 333 period 1 june 2021 31 december 2023 2 february 2022 mr allitt lodged application administrative appeal tribunal tribunal review objection officer decision direction matter made party provide additional information following telephone direction hearing held 14 july 2022 mr allitt m tutton participated telephone direction hearing m australian legal practitioner representing m tutton application heard 7 september 2022 mr allitt m tutton m participating via teleconference tribunal considered document information provided party prior hearing well oral evidence mrallitt m tutton additional evidence obtained tribunal 6 information exchanged party matter deferred obtain information third party tribunal reconvened made decision 15 november 2022 considerationthe legislative frameworkthe rate child support payable liable parent usually based administrative assessment underpart 5of thechild support assessment act1989

SULLIVAN v CITY OF HOLDFAST BAY & ANOR [2012] SAERDC 17 (28 March 2012).txt

sullivan v city holdfast bay anor 2012 saerdc 17 28 march 2012 last updated 30 march 2012environment resource development court south australiadisclaimer 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 sullivan v city holdfast bay anor 2012 saerdc 17judgment commissioner green28 march 2012environment planning environmental planning development controlthird party appeal decision city holdfast bay grant conditional development plan consent residential flat building development three dwelling undercroft garaging landscaping retaining wall like esplanade location somerton park residential coastal zone zone provision desired future character land use dwelling type dwelling density meet zoning intention building siting site coverage land form change building height storey level building articulation appearance undercroft garaging private open space landscaping functional aspect fit site streetscape locality context assessed weighed impact neighbour overshadowing view change loss visual amenity change assessed positive negative assessed weighed proposal sufficiently accord development plan warrant conditional consent consideration condition consent appeal upheld amended plan varied condition consent conditional development plan consent granted development act 1993 sa development regulation 2008 sa referred gray v city holdfast bay anor 2001 saerdc 15 city mitcham v freckmann or 1999 sasc 234 city mitcham v terra equity pty ltd 2007 sasc 244 hutchens v city holdfast bay anor 2007 sasc 238 considered sullivan v city holdfast bay anor 2012 saerdc 17the court delivered following judgment consent party court approval opening hearing name second respondent changed ra lg bertram owner land rather developer agent ml cooper matter comprises third party appeal sullivan owner occupier adjoining land decision city holdfast bay council grant conditional development plan consent development application 110 01175 10 lodged agent cooper owner bertram thedevelopment act 1993 seeking consent three level residential flat building three dwelling plus undercroft garaging vacant residential allotment 29 esplanade somerton park comprises lot 29 dp45677 right way access rear east contained certificate title volume 5354 folio 107 date application 22 december 2010 relevant appropriate development plan assessment purpose holdfast bay city consolidated version 11 december 2008 land described within residential coastal zone depicted map hob 7 council relevant planning authority approved application 24 august 2011 representors appeal lodged 9 september 2011 court viewed subject land locality morning monday 23 january 2012 presence party expert also attending addition court received benefit expert evidence appellant witness m j nolan experienced consultant town planner refer exhibit a1 m w bell experienced consultant town planner also architectural qualification refer exhibit a2 council witness mr batge experienced consultant town planner refer exhibit r2 also second respondent applicant mr g maiorano experienced consultant town planner refer exhibit c mr j hayter experienced consultant landscape architect urban designer also qualified architect refer exhibit subject landthe subject land located eastern side esplanade college road north eton road south almost rectangular shape excepting minor indent north eastern corner meet right way providing informal narrow driveway access talbot road east land approximately 41 metre deep slightly angled frontage esplanade 15 24 metre site area order 630 square metre land vacant feature low 0 6 1 0 metre retaining wall along frontage covered low level ground cover substantial bush tree land appears logically form part remnant frontal dune system varied topography mr batge noted evidence sandy soil removed forward half allotment example building waste overspill land relatively close boundary adjoining property north 28 south 29a esplanade material likely derived demolition building work adjoining land mr batge think others agreed natural land form predating urban development remains largely intact subject land though certain adjoining land highest midway along northern boundary level land approximately 4 5 metre top kerb line grade moderately steeply esplanade frontage particularly south west corner also fall towards rear south eastern corner hence cross fall north south east west useful photograph subject land contained exhibit a2 figure 2 3 7 exhibit r2 figure 1 exhibit figure 2 c figure 4 29 development proposalthe development proposal contained slightly amended plan marked exhibit b general noting description mr maiorano proposal flat roofed three storey residential flat building one dwelling per level undercroft car park level seven car store room lift stair associated retaining wall driveway landscaping entrance canopy main building face set back 6 metre front boundary 3 1 metre rear boundary 3 metre side boundary certain exception 6 8 metre x 2 metre protrusion ground level residence 1 south side result 1 metre southern side boundary setback main exception comprising pedestrian entrance canopy located 0 7 1 0 metre front boundary incursion overhang eaves level building width order 0 6 metre rear side setback particular undercroft level built northern side boundary 0 95 metre rear boundary approximately 3 metre southern side boundary excluding incursion narrow bin storage area 6 metre front boundary undercroft result two front retaining wall setback 0 8 metre 2 5 metre front boundary residence 1 ground level floor area 306 square metre consisting terrace living dining kitchen area 3 bedroom 2 bathroom laundry lobby study theatre terrace face coast west northerly aspect dimension 9 metre x 3 3 metre residence 2 3 second third upper level identical floor area 291 square metre including balcony living dining kitchen area well 3 bedroom 2 bathroom laundry study theatre stair lift lobby balcony face coast also part northerly orientation dimension lower level terrace measured floor undercroft garage door entrance building overall height approximately 12 7 metre however measured far deduced existing natural ground level front south western corner building height approximately 10 48 metre esplanade frontage includes two retaining wall setback street timber clad double garage door width approximately 6 metre driveway similar width sealed pebblecrete paving material level also proposes open sided entry canopy dimension 2 5 x 3 5 metre located near front north west corner street boundary canopy would cover mail box directs user eight step side main entry lobby gain access dwelling lift stair three main dwelling level clad concrete panel painted light cream beige colour glass panel window selected use timber panel window side elevation level partially articulated concrete overhang 600 mm referred front facade elevation articulated terrace ground level balcony upper level residence 2 3 north west corner proposed building air conditioning plant proposed located ground level north shared stairwell external clothes line detention tank proposed south eastern corner area detailed landscaping proposal marked exhibit b prepared yardstick landscape design provides comprehensive design perimeter landscape area side rear various stepped raised garden bed frontage localityit appropriate define describe relevant locality purpose interpreting certain guideline within development plan general locality comprises part area surrounding subject land tangible influence specific proposal affect notable degree regard evidence particularly m bell m nolan well messrs batge maiorano hayter ass find locality based primarily visual amenity character perception base locality definition put forward bell nolan batge essentially agree accept definition whereas boundary definition maiorano little le north south hayter much extensive north south along esplanade wilkinson avenue north rossal road south hence find locality extends distance approximately 150 metre north south perhaps 50 metre east indeterminate order 150 200 metre west sea locality obviously focused along esplanade coast extends little beyond yacht club north college road john miller reserve vicinity harrow road south within locality likely original form remnant dune system evident particularly college road eton road northward beyond locality past john miller reserve vicinity subject land esplanade comprises two way road pavement certain traffic speed control device standing parking restriction side pedestrian pathway vicinity newly paved generous width accommodate time high volume foot traffic along foreshore allotment fronting esplanade varying size frontage generally excess 600 square metre support range dwelling type form including detached semi detached residential flat building property include vehicular access direct esplanade either undercroft ground level garage including number clearly visible double garage many recent building comprise two level car parking level would seem architectural style vary due construction occurring across different era majority building south subject land comprising contemporary concrete glass structure prominent balcony projecting beyond western main face building whilst building north east much varied many older front yard esplanade also vary size elevation fencing manicured low level garden vegetation either following slope land utilising retained planter box adjacent vehicle pedestrian access point agree m nolan streetscape comprises open character relatively consistent setback mostly large imposing building wide open coastal space west foreshore beach sea level well mounded rock wall forming edge esplanade verge significant vertical structure along roadway lighting power underground one notable street tree smaller one norfolk island pine mr maiorano enunciated key element contribute prevailing character locality comprising extensive coastal outlook west wide paved footpath treatment formalise streetscape sloping foreshore land typically requiring use retaining wall facilitates use number undercroft garage wide variety building form style height age including significant new construction contemporary imposing dwelling particularly fronting esplanade variety building site coverage andminimal low key low scale landscaping planting private garden locality may well partial transition built form historically low density low site coverage intense built form utilising modern building product style seek maximise coastal view likely intensification arisen due relatively new residential coastal zoning development opportunity implicit within likely increasing land value limited supply land front urban coastal area agree m nolan residential public realm amenity locality high beach user viewer resident adjacent dwelling relevant development plan provisionsi noted provision referred party witness regard issue focus ass following relevant provision relevant development plan requiring careful consideration council wide cw hereafter objective 1 3 12 14 16 23 26 27 30 35 72 73 79 80 84 andprinciples development control 1 4 10 13 24 30 33 37 39 41 73 74 76 78 87 88 92 94 99 100 102 106 108 111 113 115 120 122 130 132 136 211 217 222 224 241 243 252 259 267 269 270 residential coastal zone rcoz hereafter introduction andobjectives 1 3 andprinciples development control 1 4 6 8 11 13 17 19 20 tablehob 1 2 3 zoning key extract included inattachment 1 processingthe development application proposal afforded category 3 designation following public notification note three representation received adjoining owner including appellant exhibit r1 pp 21 28 also note proposal referred coast protection board pursuant tos 37of act schedule 8 thedevelopment regulation 2008and response made behalf board pp 8 9 exhibit r1 particular note board objection development subject site floor level condition minimum building site floor level 3 10 3 35 metre australian height datum ahd respectively required sill level entrance undercroft car parking minimum 3 10 metre ahd evidence mr batge report council officer panel understand level clearly met approach assessmentin term ofs 35 5 act provision relevant development plan proposal consideration merit development plan provision involves weighing pro con considering whether sufficiently conducive overall intent purpose desired character amenity rcoz tested specific site streetscape locality context development plan also utilised flexible advisory planning policy document mandatory legal statute practical guide practical application superimposed upon existing state development site relevant locality ultimately planning judgment made fact degree basis whether specific proposal whole sufficiently meet development plan regard relevant matter warrant consent planning assessmenthaving regard rcoz provision particularly introductory para 2 4 objective 1 principle 1 proposed residential land use residential flat building type flat also frequently referred apartment dwelling density site area dwelling necessity needing average dwelling residential flat building involving sharing much infrastructure space therewith term guideline site area residential flat building average site area dwelling three dwelling exceeding 200 square metre accord intended future envisaged zoning land broadly development use dwelling type dwelling density vacant residential allotment accord anticipated relevant zone differing opinion expressed consultant town planner gave evidence purpose rcoz introductory para 4 allow greater number resident take advantage pleasant residential environment afforded brighton coastline maintaining recreation value location wider community agree expert zone cw provision represent opportunity development provide resident possible either increased building height dwelling people density infill additional development coastal setting also noted geographic extent zone cover almost exclusively front allotment width esplanade south farrell street corner glenelg south little north wheatland street corner seacliff excluding particularly small section mixed residential tourist use residential zoning central brighton section coastal zoning open space conservation recreation based adjoining large minda brighton campus site hence zoning appears specific tailor made policy guide development specific albeit elongated area land noteworthy position ingray v city holdfast bay anor 2001 saerdc 15at para 34 realisation full development potential envisaged development plan would necessity bring development conflict certain provision development plan regard notecity mitcham v freckmann or 1999 sasc 234 particularly para 16 17 whilst make presumption favour development development plan zoning structure detail quite different matter specific development guide rcoz principle development use type acceptable design impact proposed built form central decision matter consider broad issue term building siting site coverage land form change building height number storey level building articulation overall appearance fit site streetscape locality context sited angle approximately 6 6 6 metre front boundary corner main face building 1 3 metre elevated ground level southern side boundary appellant property 3 metre level northern boundary 3 1 metre rear eastern boundary le case 0 6 metre wide concrete awning overhang level visual effect lessening perception setback separation building proposal generally meet specific numerical setback guideline zone principle 9 11 end assessment set incity mitcham v terra equity pty ltd 2007 sasc 244 para 13 particularly south remain broader implication impact concerning loss direct sunlight light generally reduction angled view coast toward north west south west adjoining dwelling no 29a 28 respectively pure visual aesthetic impact visual amenity refer later discussion turning consideration site coverage estimated vicinity 49 50 ground floor building footprint depending whether entry canopy included excluded marginally exceeds numerical policy guide cw principle 99 design technique 99 1 45 site 451 800 square metre area however agree mr maiorano qualitative functional purpose principle arguably met subject later assessment setback adequacy area landscaping site consider land form change building fit evident development plan concept generally retain respect land form effectively old dune system built form step slope locality evidence remnant dune formation although significant amount removed obscured site coverage dwelling undercroft underground garaging simply garden tennis court pool planter box wall like little evidence concept instigated achieved broader basis locality zone also taken account possible extent change land form time including since relevant principle allegedly inserted plan 1993 term consequence extent excavation setting block like built form topography leaving question height later tangible evidence concerning environmental impact received largely question desired character feature interest even history visual form profile mimic follow probably original dune formation along coast main however given residential urban zoning largely disappeared retention little remaining subject land would appear serve great purpose planning outcome whilst degree cut fill retaining wall greater many design locality meeting cw principle 264 thus negative proposal circumstance locality consider fatal deficiency design turning central question building height rcoz intent mind reasonably clear building three storey height 10 5 metre height point land form assuming remains existing natural ground level may appropriate term specific proposal largely three elevation three storey le height point le 10 5 metre height however front west elevation view includes view undercroft garaging thus appears four level building garaging level storey effectively four storey said much view obscured retaining wall garden bed front main building structure consider building height number level storey fatal even called first kind regard zoning guideline note approach debelle j inhutchens v city holdfast bay anor 2007 sasc 238 particular para 50 acknowledged difference height proposalvis visit surround one factor considered decision making process presume site rcoz developed guideline height variety sought zone introduction para 2 5 likely remain long time redevelopment transition would almost inevitably experience reasonably slow undercroft garaging relatively common locality feature existing appearance element character locality principle acceptable fact one level substantially ground level given overall building additional height flat roof form clearly element could three storey 10 5 metre guideline satisfied principle site setting streetscape locality perspective building height number storey level acceptable even first kind zone discus later question impact adjoining development considering building articulation regard rcoz principle 15 16 assessed vertical horizontal articulation north building facade terrace balcony awning well side entry feature building set land form west front regard balcony terrace element step upper level inward single storey level closer boundary material variation east rear building set ground level presenting two level narrow width eave overhang acceptable received little criticism expert however articulation south elevation drawn criticism mr hayter others said length bland wall part line high level window notwithstanding eaves overhang material variation three level visible highly articulated mr hayter suggested need vertical articulation additional element could include material colourbands jointing stepping building element minimise bulk appearance elevation said absence feature southern elevation de emphasis height length bulk generally sought development plan guideline represents negative proposal need carefully considered weighing acceptability proposal whole term general appearance fit appropriate consider site streetscape locality context first term site fit adjoining development proposal respect follow land form slope extensive cut fill perception fourth level one aspect front marginal building height front south west corner absence sufficient articulation southern elevation producing marginal likely outcome respect appearance fit site context term streetscape regard likely perception adequacy sufficiency setback side front boundary perception height length eaves extension failure follow land form slope may slightly greater impact streetscape however conjunction consideration new building well topography built form relativity along streetscape regard particularly evidence mr hayter ignoring evidence others ass fit within streetscape acceptable sufficiently meeting development plan finally term fit within locality ass overall nature form appearance proposal together intended landscaping good fit varied characteristic locality described including range modern multi storey building southward subject land find complementary compatible character locality represents positive respect proposal assessment turn potential degree impact neighbour particularly term overshadowing view change loss visual amenity m nolan m bell particularly concerned likely impact adjoining dwelling south appellant 29a term overshadowing view change visual amenity effect mr batge mr maiorano reservation regard backdrop cw principle 11 116 117 purpose guideline rcoz particularly general three storey development 10 5 metre height existing natural ground level excluding roof form set side boundary zone principle 10 b ensure reasonable separation dwelling minimise potential overshadowing adjacent dwelling le 3 metre essentially met proposal regard design location adjoining dwelling indoor swimming pool roof skylight well rear private open space window family room setback covered colonnade verandah assessment generally agreement messrs batge maiorano careful analysis various shadow diagram provided december june 9am 12 noon 3pm existing proposed exhibit proposed building le top level theoretical two storey building comparison shown exhibit r1 p 58 reveals sunlight rear open courtyard existing situation 22 june worse case swimming pool skylight probably though shown part covered verandah colonnade family room window proposal consequence likely mean direct sun ground level private open space onto swimming pool skylight worse case scenario likely much reduced sun onto adjacent rear verandah colonnade floor north facing window family room andthat alternative theoretical proposal le top level two storey building undercroft would relatively similar affect proposal hence whilst direct sunlight reduced reflected referred light would still occur courtyard verandah colonnade area family room swimming pool extent outcome unreasonable circumstance even though private residential amenity loss occur whilst greater degree impact overshadowing created unfortunate countenanced moderate degree zone guideline addition aside roof form atop proposed building even lesser level could well exacerbated impact extent proposed flat roof building development minimises overshadowing stated natural light direct sunlight still received enjoyed within swimming pool enclosure also agree m nolan m bell impact loss narrow angled oblique view north west coast appellant coast south west occupier 28 esplanade north severe degree significantly reduce residential amenity warrant refusal proposal setting back beyond 6 metre front building agree reasoning mr batge clause 6 3 12 exhibit r2 issue mr maiorano clause 72 77 exhibit c impact visual amenity aesthetic subjective difficult ass objective way acknowledged much proposed built form vacant allotment clearly visible north appellant dwelling largely expected given purpose provision desired future rcoz visual amenity aesthetic term whilst somewhat large bulky nevertheless largely accord zone desired future character intent ass would minimal reduction visual amenity whole within locality turning consideration private open space landscaping ass find beach front coastal recreational environment regard provided evidence extent private open space relationship dwelling ground upper level satisfactory adequate town planner strongly opposed development basis landscaping proposal relatively minimal locality surprising relatively harsh coastal environment pleased see four larger plant south eastern corner potentially height 5 metre along western part southern boundary four larger deciduous ornamental pear specie tree height perhaps 12 metre together typical array small mid sized plant creeper ground cover soften retaining wall appropriate narrow corridor rear building site note mr hayter qualified landscape architect give evidence satisfied design specie selection given experience noteworthy relied upon therefore conclude landscaping adequate extent design proposed meeting various relevant general guideline particularly cw principle 115 262 rcoz principle 17 19 considering issue stormwater detention management noted civil plan prepared tmk consulting engineer exhibit r1 p 59 show proposed stormwater management concept involving collection pumping stormwater undercroft street watertable along roof ground surface run provision 3 000 litre minimum detention tank rainwater collected connection wc located generally south eastern outdoor area adjacent laundry council condition 6 consent also cover aspect whilst expert engineering evidence received court satisfied general experience regard development plan guide cw principle 134 others might reasonable planning application stage stormwater appropriately acceptably managed note also view mr batge m nolan commented aspect consider wide array functional aspect including access parking service refuse collection item acceptable giving rise unsatisfactory design development outcome summary conclusioni noted number positive advantage proposed development including clear alignment desired future character rcoz acceptability respect land use dwelling type storey height siting regard numerical qualitative setback guide also respect private open space adequacy landscaping proposal access parking overall design appearance quality appeal proposal supported mr hayter also carefully assessed noted number negative including effect degree change land form excavation retaining wall degree site coverage marginally guideline spatial extent landscaping development could always greater limited degree articulation southern elevation side proposed building degree impact particularly overshadowing angled view change general visual appearance proposal adjoining neighbour particularly appellant southern side weighed factor degree accord discord guideline development plan find rcoz guide met main many broad cw policy guide sufficiently met zoning guide mostly well expressed clear link stated purpose outcome nominated appropriate standard applied achieve purpose consider m nolan placed undue emphasis zone principle 15 find development acceptable visual interest noting example clause c principle 15 compliance principle 16 concerning esplanade frontage proposed building façade front western elevation also noted observed planner absence guideline protection private amenity adjoining adjacent resident rcoz unlike included others residential foreshore zone residential zone go heart weight applied zone specific guide broader council wide guide dealing public private amenity ass find proposal adequately fit site surround streetscape locality whole sufficiently meet development plan warrant conditional development plan consent convinced minor amendment building siting design necessary ass put counsel appellant combination factor negative proposal sufficient warrant refusal also ass called development light development plan including zone guideline also conclude noting general agreement opinion messrs batge maiorano hayter well mr watson council team leader development assessment report council development assessment panel p 64 exhibit r1 decision council via development assessment panel local planning authority appeal therefore dismissed general sense question condition variation thereto remains outstanding issued memorandum party dated 6 march 2012 effect asked consideration question condition submission existing condition well potentially others regard following usefulness second sentence condition 4 deletion condition 9 duplication condition 8 omission reference level per condition 15 renumbered 14 substituted simply reference level exhibit deletion condition 18 detailed evidence provided whether reasonably remain choice proponent regard going maintenance obligation rather subject direction planning authority condition 19 requirement driveway taper 6 metre boundary 5 metre kerb line specific width rather leaving matter generalised would achieve reduced view driveway double garage door area andany subject may subject reasonable condition may put party heard party tuesday 27 march 2012 evident substantial agreement regarding revised set condition minor amendment condition based draft finalised assessment discussion warranted decisionthe appeal upheld allowed insofar incorporate amended plan amend vary condition development plan consent development plan consent granted development application 110 01175 10 subject following condition design siting building structure site work shall undertaken accordance plan detail subject consent design siting shown amended plan marked exhibit landscaping plan marked exhibit b unless varied subsequent condition imposed herein premise shall maintained kept tidy free graffiti good repair condition reasonable satisfaction council time premise shall used directly indirectly purpose approved work completed accordance plan approved condition consent complied except condition continue apply reasonable satisfaction council front fencing shall either low front fence higher 1 2 metre grille type fence along front property boundary driveway landscaping shall undertaken accordance exhibit b landscaping shall established within three month substantial completion development vegetation shall replaced dy becomes seriously diseased reasonable satisfaction council stormwater dwelling shall collected connected 1000 litre minimum rainwater tank sealed system flow connection street water table final detail location size tank shall submitted council approval prior issue full development approval furthermore stormwater dwelling site shall collected disposed manner adversely affect property adjoining site stability building adjacent site b stormwater shall disposed vehicle crossing place connection street water table including remedial work footpath verge council infrastructure subject necessary approval council proponent cost provision vehicle crossover inverts reinstatement existing crossover required development constructed proponent expense change level along external site boundary 200mm shall retained suitable engineering standard fencing shall erected top retaining wall construction retaining wall shall undertaken completed prior commencement construction dwelling herein approved reasonable satisfaction council final detail boundary fencing submitted approved council prior erection construction shall take place 7am 7pm monday saturday sunday public holiday work shall undertaken manner reasonable opinion council cause nuisance annoyance occupier building within locality work outside hour requires written approval council dust emission site shall controlled dust suppressant watering regularly subject relevant water restriction reasonable satisfaction council builder shall time provide maintain waste receptacle reasonable satisfaction council site time builder waste shall contained duration construction period receptacle shall emptied required hard building material waste litter site stored manner secures site construction work reasonable satisfaction council solid liquid trade waste discharged stormwater system finished floor site level development shall constructed accordance approved plan exhibit domestic mechanical plant equipment including refrigerated air conditioner excluding evaporative air conditioner shall mounted ground location depicted approved ground floor site plan dated march 2011 10231 da 01d fitted approved acoustic enclosure incorporating correctly designed ventilation minimise environmental harm includes nuisance noise occupant adjacent premise reasonable satisfaction council column within basement car park relocated 200mm north accordance nzs 2890 1 2004 amended column location shall shown plan building rule assessment subject owner land known 28 29a esplanade somerton park 96 eton road somerton park giving consent dilapidation survey including written photographic video filming interior exterior building located 28 29a esplanade somerton park 96 eton road somerton park prepared qualified structural engineer copy provided council prior issuing development approval copy relevant survey shall made available relevant owner property garage door shall constructed material capable withstanding coastal environment detail garage door design material shall submitted council approval prior development approval issued revised site plan shall submitted council prior grant development approval showing driveway crossover taper 6 metre property boundary 5 metre kerb line order effect attachment 1 relevant development plan extractscouncil wide objective 30 residential area f protect enhance eco system natural site feature objective 32 residential neighbourhood recognised character identity defined relevant desired future character statement particular pattern development evident existing street layout housing style local open space objective 35 realisation development potential individual site manner consistent objective principle development plan including applicable relevant zone policy area principle development control development sited far possible manner create significant overshadowing window adjacent dwelling outdoor living area adjacent dwelling sunlight available northern facade adjacent existing development least two hour 9 00am 3 00pm 21 june ensure criterion met shadow diagram submitted development application showing position shadow 21 june new development adjacent development shadow impinge development site development take place manner liable contribute unduly pollution air water land cause nuisance including nuisance community c loss residential privacy tree vegetation established part development environment thereby improved 73development protect existing site feature including significant vegetation natural creek line item feature conservation heritage value b minimise need cut fill appearance land building contribute desired future character relevant zone policy area term built form element building height b building mass proportion c manner building oriented public street external material pattern texture colour decorative element e ground floor height natural ground level f roof form pitch g facade articulation h verandah eaves parapet driveway crossover fence style 76building height maintain compatible scale adjacent development visual bulk building adjacent street frontage adjoining private open space neighbouring allotment reduced design method colour building material detailing articulation b setback upper storey part building neighbouring private open space retaining wall designed way stepped series low wall appearance enhanced landscaping design technique technique one way satisfying principle 88 1 height retaining wall exceed 0 5 metre located front external wall building public street b 1 0 metre located elsewhere site c case retaining wall incorporate landscaping soften appearance retaining wall street boundary setbacksdwelling setbacksdwellings set back allotment site boundary contribute enhance attractive existing desired zone policy provision streetscape character b provide adequate visual privacy separating habitable room pedestrian vehicle movement c similar compatible set back building adjoining land dominate streetscape character locality e case setback secondary road regard setback existing dwelling design technique technique one way satisfying principle primary street frontages492 1 development set back distance one building adjoining site provided difference setback two adjoining building le equal 2 metre b le average setback building adjoining site difference setback adjoining building greater 2 metre 94setbacks side rear boundary progressively increased height building increase cause unreasonable visual impact amenity adjoining property b cause unreasonable overshadowing adjoining property c maintain adequate natural light existing future adjoining dwelling private open space promote energy conservation maintaining adequate access winter sunlight main ground level living area existing dwelling adjoining land 99the site provide sufficient space pedestrian vehicle access vehicle parking b storage clothes drying c private open space landscaping front side rear boundary setback appropriate locality design technique technique one way satisfying principle 99 1 site coverage7 exceed following site area m² maximum site coverage 300 55301 450 50451 800 45 800 40 direct overlooking upper level habitable room windows10 external balcony terrace deck habitable room window useable private open space dwelling minimised building layout b location design window balcony c permanently fixed screening device landscaping e adequate separation 115landscaping contribute streetscape incorporating tree provide shade canopy soften appearance development complement built form ie taller dense planting taller bulky building component j provide buffer vehicle access way dwelling q regard tolerance selected specie prevailing salt laden wind 116adequate natural light available within habitable room located near neighbouring property 117new building allow access adequate winter sunlight ground level private open space existing adjacent dwelling b upper level balcony provide primary open space area existing dwelling c habitable room window adjacent dwelling design technique technique one way satisfying principle 117 1 sunlight least 50 percent 35 square metre minimum dimension 2 5 metre whichever lesser area ground level private open space existing adjacent property reduced le two consecutive hour 9 00 3 00 pm 21 june existing overshadowing building fence greater sunlight reduced le 80 percent formerly available 117 2 sunlight existing solar panel shall maintained minimum 2 consecutive hour 9 00 3 00 pm 21 june site drainage larger site ie 600 square metre provide site infiltration practicable regard availability unbuilt upon unsealed area b ability soil absorb drain water c potential impact building foundation footing adjacent site potential adverse impact level quality groundwater e ability safely direct surplus flow public street without causing nuisance adjoining property development within coastal area designed sited sympathy natural built character locality complementary scale height bulk material external colour surroundings development along coast infill existing developed area concentrated appropriately chosen node scattered linear form 259each building located designed respect height b size c scale colour e form f siting g architectural style h material construction manner consistent desired character described objective principle development control zone situated otherwise predominant character building locality utilization appearance land building object impair amenity locality situated 264development designed relate slope land amount cutting filling natural ground profile minimised b need retaining wall avoided height retaining wall minimised 270building development site frontage road development large bulk height comparison building frontage road c well screened view vegetation land form building set back road frontage nearby building frontage road minimise visual prominence building developed residential coastal zoneintroduction residential coastal zone cover development fronting esplanade except contained within residential institution residential caravan tourist park zone intended zone accommodate variety low medium density dwelling type pleasant environment recreational opportunity afforded coastal setting ensure popularity location residential development time metropolitan coastline adelaide important recreational resource general community well resident beach side suburb purpose zone allow greater number resident take advantage pleasant residential environment afforded brighton coastline maintaining recreation value location enjoyment wider community variety housing form including one two three storey dwelling considered appropriate zone future development avoid creation continuous facade fronting esplanade built response slope land order minimise amount cutting filling natural ground profile objectivesobjective 1 zone primarily accommodating detached semi detached dwelling row dwelling group dwelling residential flat building three storey height objective 2 development designed located profile building complement slope land principle development controlform developmentdevelopment undertaken residential coastal zone primarily detached semi detached dwelling row dwelling group dwelling residential flat building three storey height development designed located profile building complement slope land site areaany site accommodating detached dwelling least 300 square metre area site accommodating semi detached dwelling least 250 square metre area site accommodating row dwelling group dwelling residential flat building least 200 square metre area heightdevelopment exceed following limit existing natural ground level three storey height b 10 5 metre high vertical wall height point excluding gable setback ensure reasonable separation dwelling minimise potential overshadowing adjacent dwelling following boundary set back illustrated figure 9 table hob 3 apply single storey development single storey component development located le one metre side unless located boundary rear boundary b two three storey development two three storey component development located le three metre side rear boundary allow maximum access solar energy minimum set back dwelling northern boundary three metre unless northern boundary primary road frontage secondary road frontage boundary case set back appearing principle development control numbered 9 shall apply b building form permit three metre set back may case respect semi detached row dwelling residential flat building case courtyard capable containing rectangle six metre four metre provided immediately adjacent northern boundary northern boundary defined site boundary bearing 45 degree 135 degree true north located northern extremity site illustrated figure 9 table hob 3 definition northern boundary site illustrated figure 10 table hob 3 design appearance 14a variety dwelling style form encouraged large two three storey residential development incorporate architectural feature reduce bulk development add visual interest variation height roof form colour material b provision balcony portico c facade articulation ensure development create continuous built form along esplanade western elevation development greater one storey height located esplanade extend distance greater 90 percent allotment frontage event create continuous facade 20 metre length illustrated figure 7 table hob 3 space space used break facade 20 metre length constitute le 10 percent total width facade landscapingthe frontage dwelling site driveway area landscaped landscaping may comprise combination vegetation paved surface however paving constitute half area site frontage forward building alignment dwelling driveway width exceed 30 percent frontage site illustrated figure 3 table hob 3 selection plant specie landscaped area based tolerance prevailing salt laden wind

Drane v Taylor (No 2) [2022] QCATA 157 (6 October 2022).txt

drane v taylor 2 2022 qcata 157 6 october 2022 last updated 31 october 2022queensland civil andadministrative tribunalcitation drane v taylor 2 2022 qcata 157parties matthew neville drane applicant appellant vlauren maree taylor respondent application apl104 21originating application mcdo5 20matter type appealsdelivered 6 october 2022hearing date papersheard brisbanedecision judicial member j mcgill scorders appellant pay respondent cost application leave appeal fixed sum 5 500 catchword administrative law administrative tribunal queensland civil administrative tribunal cost appeal jurisdiction application leave appeal decision minor civil dispute whether cost limited rule leave represented refused effect refusal lawyer assisting party preparing submission writing whether bar order discretionary consideration whether application leave appeal vexatious significance weakness case cost orderedqueensland civil administrative tribunal act2009

Asia Pacific Glass v Sindea Trading Co [2003] NSWSC 334 (23 April 2003).txt

asia pacific glass v sindea trading co 2003 nswsc 334 23 april 2003 last updated 24 april 2003new south wale supreme courtcitation asia pacific glass v sindea trading co 2003 nswsc 334current jurisdiction equity divisioncorporations listfile number 6098 02hearing date 11 04 03judgment date 23 04 2003parties asia pacific glass pty ltd plaintiffsindea trading co pty ltd defendantjudgment barrett jlower court jurisdiction applicablelower court file number applicablelower court judicial officer applicablecounsel mr j johnson plaintiffms r sofroniou defendantsolicitors macedone christie willis plaintiffhunt hunt defendantcatchwords corporation winding insolvency statutory demand genuine dispute offsetting claim need quantification claim imposition condition offsetting claim pursuedacts cited corporation act 2001 cth s 459g 459h 1 and459h 1 b decision statutory demand set aside conditionallyjudgment 10 supreme courtof new south walesequity divisioncorporations listbarrett jwednesday 23 april 20036098 02 asia pacific glass pty ltd v sindea trading co pty ltdjudgment1 plaintiff claim unders 459gof thecorporations act2001 cth order setting aside statutory demand dated 4 december 2002 served defendant demand asserts indebtedness aggregate amount 242 095 49 respect good supplied 30 purchase order le two credit 2 plaintiff claim based boths 459h 1 459h 1 b affidavit supporting application affidavit affirmed 19 december 2002 mr mace director plaintiff deposes matter said amount genuine dispute former provision two sum one 70 000 26 000 additional matter said ground offsetting claim within latter provision 3 plaintiff defendant commenced trading relationship 1994 plaintiff acted distributor defendant glassware product arrangement outlined affidavit mentioned well affidavit deponent 21 march 2003 evidence adduced defendant result application fall determined upon plaintiff evidence two part genuine dispute aspect first relates amount 70 000 subject following evidence mr mace 7 trading relationship defendant based defendant placing good plaintiff sell accordance distribution right set distribution agreement 8 practise developed year plaintiff defendant trading defendant would place product plaintiff defendant saw fit quantity defendant saw fit arrangement would occur approximately half good supplied defendant remaining good would behalf plaintiff contact defendant advise need stock particular product 9 stock placed plaintiff defendant comprised various sort commercial hospitality glassware 10 good provided plaintiff consignment negotiation ever held defendant relation term consignment practise developed relation payment consignment stock invoice issued stock delivered plaintiff warehouse end month purchase order would raised plaintiff consignment stock sold month value stock referred particular purchase order due payable defendant plaintiff received payment good customer 11 occasion defendant would ship stock directly customer either would supply copy invoice customer time shipment plaintiff would invoice customer confirmation delivery defendant would monitor plaintiff account receivables determine payment received kind shipment defendant able monitor plaintiff account receivable report condition trading term plaintiff required supply report defendant end month 12 plaintiff currently owed vicinity 70 000 00 customer defendant stock sum yet due payable defendant accordance term trade developed party mention last sentence paragraph 10 whole paragraph 12 objected admitted evidence deponent understanding 4 second affidavit mr mace deposes conversation mr tan principal defendant time 1999 mr tan said wished reduce extent debt due plaintiff appearing book defendant continued switch stock debt consignment stock 5 mr mace deposes time plaintiff owned glassware supplied defendant time defendant owned placed plaintiff consignment basis credit raised stock held warehouse time stock stock supplied dealt consignment basis 6 account accurately reflects agreed term trade lends credence assertion plaintiff pay defendant stock plaintiff received payment end customer plaintiff made sale 7 second aspect genuine dispute claim relates sum 26 000 aggregate price good returned plaintiff say credit given item detailed invoice october december 2002 coincide date statutory demand 8 defendant say matter deposed insufficient give rise substantiate existence genuine dispute even according test genuineness emerging line case centred upon followingre morris catering pty ltd 1993 11 acsr 601 eyota pty ltd v hanave pty ltd 1994 12 acsr 785 mibor investment pty ltd v commonwealth bank australia 1994 vicrp 61 1994 2 vr 290andspencer construction pty ltd v g aldridge pty ltd 1997 fca 681 1997 76 fcr 452 would repeat said test insolarite air conditioning pty ltd v york international australia pty ltd 2002 nswsc 411 appropriate dwell moment guidance provided case test plausible contention requiring investigation real spurious hypothetical illusory misconceived perception genuineness lack applied context summary procedure expected court embark extended inquiry mean task faced company challenging statutory demand genuine dispute ground mean difficult demanding one company fail task found upon hearing it 459gapplication contention upon seek rely mounting challenge devoid substance investigation warranted company show even one issue sufficient degree cogency arguable finding genuine dispute must follow court engage form balancing exercise strength competing contention see factor rational ground indicates arguable case part company must find genuine dispute exists even case apparently available advanced company seems stronger 9 m sofroniou appeared defendant noted although correspondence embodying alleged term trade plaintiff defendant evidence annexures exhibit affidavit mr mace disclose back back payment arrangement kind plaintiff alleges furthermore 26 000 item return defendant say evidence show connection mean making connection sum alleged return sum claimed statutory demand mr johnson appeared plaintiff point silence general question payment correspondence said embody term trade inconsistent term mr mace alleges affidavit 10 true order make finding genuine dispute withins 459h 1 court need assertion plaintiff affidavit dispute need see evidence properly adduced application showing fact past event sufficient indicate difference party properly characterised dispute relevant matter also dispute sufficient cogency pas genuine test referred 11 regard 70 000 item mr mace affidavit go beyond mere assertion give evidence word allegedly spoken mr tan undefined time 1999 presumably agreed plaintiff word subsequent conduct putting term trade consignment basis applicable appears surface least lend support assertion 70 000 also give evidence course trading party comment may made true defendant doubt result calculated decision chosen adduce evidence everything mr mace say therefore one sense mere assertion neither accepted contradicted defendant real test must seen justify finding genuine dispute evidence whether contradicted even commented upon defendant matter past prima facie level may seen raise inconsistency right payment asserted statutory demand whether existence right extent money said relate 12 comment applies defendant submission supposed dispute item totalling 26 000 based mere assertion allegation genuine dispute based invoice passed party course ongoing trading relationship reasonable think return plaintiff giving rise contra running account may well occurred form time time indeed statutory demand show schedule credit two invoice allegation genuine dispute based sufficiently factual material adduced plaintiff despite lack contradiction defendant 13 find therefore plaintiff claim based ons 459h 1 relation two separate aggregate item one approximately 70 000 approximately 26 000 made discussion ramification deferred thes 459h 1 b claim considered 14 plaintiff claim offsetting claim must taken account unders 459h 1 b based alleged breach defendant distributorship agreement dating 1994 alleged term trade said embodied correspondence contained annexures exhibit mr mace affidavit already referred plus seems subsequent oral agreement 15 plaintiff contention according party contract plaintiff defendant distributor western australia new south wale correspondence taken face value bear refer particular statement western australia new south wale page 2 letter 21 april 1994 mr tan mr mace page 1 letter 29 june 1994 party supported inference drawn statement item 2 letter 11 may 1994 mr tan another defendant distributor plaintiff also say breach contract defendant bypassed plaintiff marketing area 16 relation alleged breach plaintiff point first conversation mr mace mr tan september 2001 related mr mace first affidavit follows mr tan said think done stupid thing sent stock perth said stop shipment terminate dealing advise customer contact u territory said going happen stop shipment said tell customer deal directly u said deal meeting ended 17 plaintiff also relies relation breach event concerning qcc customer plaintiff western australia plaintiff alleges defendant supplied good direct competitor qcc western australia result qcc ceased dealing plaintiff plaintiff wrote defendant 25 july 2002 referring matter demanding defendant cease shipment western australia defendant replied 29 july 2002 cannot comply 18 task plaintiff seeking show offsetting claim purpose ofs 459h 1 b described palmer j inmacleay nominee pty ltd v belle property east pty ltd 2001 nswsc 743as follows opinion genuine offsetting claim purpose cas459h 1 s459h 2 mean claim cause action advanced good faith amount claimed good faith good faith mean arguable basis fact asserted sufficient particularity enable court determine claim fanciful claim unliquidated damage economic loss court able determine whether amount claimed claimed good faith unless plaintiff adduces evidence show basis upon loss said arise loss calculated evidence entirely lacking court cannot find genuine offsetting claim purpose ofs459h 19 need claim sufficiently quantified money term emphasised definition offsetting claim in 459h 2 assumed every claim amount said relation inno 96 factory bargain pty ltd v kershel pty ltd 2003 nswsc 146 first thing said way plaintiff put case definition offsetting claim in 459h 5 refers general term claim way counterclaim set cross demand clearly contemplated section whole claim must one capable quantified money term need liquidated claim must one monetary liability attached directive in 459h 2 court determine among thing amount claim several claim total amount claim follows claim sounding debt damage monetary consequence may available thetrade practice act may taken account purpose 459h 20 mr mace deposes plaintiff relied distribution agreement defendant least 95 business lost business western australia new south wale also say profit plaintiff last financial year 143 000 151 000 confusion affidavit give figure 2000 figure 2001 another figure 2000 think one 2000 figure intended refer 2002 mr mace go plaintiff intends file claim damage early january 2003 respect defendant action breaching distribution agreement damage claimed loss profit loss opportunity compensation loss goodwill plaintiff also intends claim exemplary damage respect defendant conduct along claim damage section 51ac trade practice act whilst damage cannot fully formulated time without service forensic accountant believe exceed amount defendant claim 21 second affidavit mr mace seek quantify plaintiff loss follows future loss profit 5 year 150 000 00per annum gross 750 000 00 est loss goodwill assessedequipment value 25 000 00on basis claim put minimum 775 000 22 case accordingly one plaintiff shown requisite level low seechadwick industry south coast pty ltd v condensing vaporiser pty ltd 1994 13 acsr 37 edge technology pty ltd v lite technology corp 2000 nswsc 471 2000 34 acsr 301 existence offsetting claim ascribed claim monetary value may said least basis logic sufficient accepted purpose assessment court called upon undertake stage 23 m sofroniou submitted court accept quantification agree broad brush kind might fullness time withstand detailed scrutiny said regard sufficient present purpose time however noteworthy plaintiff acted upon intention stated mr mace part affidavit quoted institute proceeding defendant breach contract statutory wrong early january 2003 three month ago 24 injesseron holding pty ltd v middle east trading consultant 1994 12 aclc 490 young j pointed finding offsetting claim necessarily end matter case court setting aside statutory demand directed statute may impose condition 459m palmer j considered appropriate inmacleay nominee make order conditional upon successful plaintiff pursuing offsetting claim commencement proceeding within specified time honour observed stage 459g application order setting aside statutory demand case shown plaintiff relying offsetting claim ground 459h 1 b may fall far short would ultimately advanced pursuing offsetting claim case particularly quantum like palmer j inmacleay nominee submitted m sofroniou consider instance plaintiff required demonstrate commitment genuineness viability claim amount exceeding statutory demand initiating proceeding foreshadowed mr johnson indicated client would seek resist condition would indeed consent 25 conclusion relation offsetting claim subsumes conclusion relation genuine dispute make unnecessary order 459h 4 reducing amount claimed statutory demand sum subject genuine dispute approximately 96 000 aggregate quantification offsetting claim exceeds amount claimed statutory demand 459h 3 requires order statutory demand set aside 26 regard said need condition case order court follows 1 order statutory demand copy annexure b affidavit brett mace affirmed 19 december 2002 filed 23 december 2002 set aside condition plaintiff later 31 may 2003 commence court competent jurisdiction file serve originating process containing accompanied particular claim damage respect legal proceeding described first three sentence paragraph 26 affidavit 2 order defendant pay plaintiff cost present proceeding last updated 23 04 2003

Diamond Valley Pork Pty Ltd [2013] FWCA 4768 (17 July 2013).txt

diamond valley pork pty ltd 2013 fwca 4768 17 july 2013 2013 fwca 4768fair work commissiondecisionfair work act 2009s 185 application approval single enterprise agreementdiamond valley pork pty ltd ag2013 1693 enterprise agreement diamond valley pork pty ltd meat processingmeat industrysenior deputy president harrisonsydney 17 july 2013application approval enterprise agreement diamond valley pork pty ltd meat processing 1 application made approval enterprise agreement known theenterprise agreement diamond valley pork pty ltd meat processing agreement application made pursuant tos 185of thefair work act 2009 act agreement single enterprise agreement 2 satisfied requirement ofss 186 187and188as relevant application approval met 3 australasian meat industry employee union bargaining representative agreement given notice unders 183of act want agreement cover required bys 201 2 note agreement cover organisation 4 agreement approved accordance withs 54 1 operate 24 july 2013 nominal expiry date agreement 8 june 2017 senior deputy presidentprinted authority commonwealth government printer price code c ae402432pr539021

DPP v Nguyen [2016] VCC 1786 (24 November 2016).txt

dpp v nguyen 2016 vcc 1786 24 november 2016 last updated 28 november 2016in county court victoriarevisednot restrictedsuitable publicationat melbournecriminal jurisdictioncr 16 01494director public prosecutionsvthuong xuan nguyen judge honour judge grantwhere held melbournedate hearing 15 november 2016date sentence 24 november 2016case may cited dpp v nguyenmedium neutral citation 2016 vcc 1786reasons sentence appearance counselsolicitorsfor directorms r marquesoppfor accusedms hancockemma turnbull lawyershis honour 1 thuong xuan nguyen pleaded guilty one charge cultivating narcotic plant commercial quantity 2 heard summary offending intention repeat whole summary tendered exhibit plea proceeding 3 briefly 28 january 2016 police executed search warrant property altitude drive doreen police located total 232 cannabis plant various stage maturity weighing total 43 3 kilogram several room house used cultivation cannabis cultivation supported elaborate hydroponic set illegal electricity bypass place 4 police preparing leave address recognised silver toyota camry observed address previously drive past followed vehicle seen parked nearby another man observed walking away police approached began run away arrested found possession key house fertiliser chemical located boot toyota fingerprint also located number item including personal item found house remanded custody day 5 mr nguyen pleaded guilty serious offence maximum penalty 25 year imprisonment commercial quantity cannabis 25 kilo 100 plant possession 43 3 kilo 232 plant cultivation sophisticated whole house effectively converted growing cannabis elaborate hydroponic set electricity bypass fact offending one month reduce culpability whilst prosecution concede role crop sitter culpability reduced result also important recognise role necessary cultivation flourish enable others potentially profit illegal activity 6 mr nguyen nature offending prevalence general deterrence punishment denunciation highly relevant sentencing consideration 7 move matter relevant background matter raised mitigation 8 44 year old vietnamese man born family rice farmer father died young three older sibling living vietnam counsel described family circumstance impoverished completing school worked rice field factory various place vietnam married three child aged 12 ten four wife process divorcing care child care one cousin vietnam 9 2012 working construction company company offered opportunity travel australia return payment large amount money came australia three month tourist visa initially worked queensland recent time worked fruit picker robinvale mildura australia unlawfully overstayed visa recently received deportation notice department immigration 10 satisfied entered early plea guilty witness required give evidence plea avoided cost expense associated criminal trial given appropriate sentencing discount matter 11 criminal history good work history use drug fact augur well rehabilitation accept imprisonment onerous family victoria support also serve imprisonment knowledge likely deported sentence completed however latter point need balanced fact overstayed tourist visa australia unlawfully prospect deportation onerous situation addition deported great hardship return place live support family 12 mr nguyen stand please 13 convicted sentenced imprisoned period two year serve 12 month eligible release parole make declaration served 301 day pre sentence detention 14 pleaded guilty found guilty trial would sentenced term three year imprisonment minimum term two year 15 mr nguyen removed m hoang step thank attending assisting matter

Shaw v Fragapane Nominees Pty Ltd [1999] VSC 374 (8 October 1999).txt

shaw v fragapane nominee pty ltd 1999 vsc 374 8 october 1999 last updated 19 october 1999supreme court victoriacauses jurisdictiondo send reportingnot restrictedno 6890 1999brian william shaw orsplaintiffsvg fragapane nominee pty ltd acn 005 229 863 defendant judge warren jwhere held melbournedate hearing 4 october 1999date judgment 8 october 1999case may cited shaw or v fragapane nominee pty ltdmedia neutral citation 1999 vsc 374 injunction serious question tried balance convenience order 23 01 summary dismissal whether claim hopeless appearance counselsolicitorsfor plaintiffmr b shaw person behalf plaintiffsfor defendantmr rinaldiharwood andrewsher honour plaintiff issued generally endorsed writ seeking interlocutory injunction defendant relation property 2 dukelows road mt cotterill known bambra park property property comprises 856 acre farming land property subject share farming agreement company known acn 069 812 291 pty ltd land owner plaintiff entered 14 july 1997 share farming agreement 2 august 1999 one joseph fragapane entered contract sale land owner purchase property contract day 2 august 1999 land owner granted mr fragapane licence use occupy property 2 august 1999 settlement date contract year 2000 licnece 2 august 1999 land owner executed power attorney favour joseph fragapane authorising exercise enforce right share farming agreement land owner plaintiff power attorney 9 august 1999 mr fragapane nominated defendant g fragapane nominee pty ltd purchaser property contract relevant time plaintiff occupation property pursuant share farming agreement july 1997 present term share farming agreement land owner would allow plaintiff carry obligation agreement without interference clause 3 agreement clause 4 imposed duty plaintiff described farmer agreement grow harvest sell crop use land purpose specified agreement maintain building improvement related matter share farming agreement imposed obligation plaintiff take keep current public risk risk building insurance also share farming agreement imposed obligation notify land owner required 1 june year farm management programme 12 month commencing following 1 july farm management programme required specify type crop grown estimate sowing date crop type breed like livestock run land type application fertiliser applied land clause 4 30 addition agreement required plaintiff pay rate tax upon notified rate tax due payment land owner clause 5 4 another matter raised letter 12 august 1999 failure plaintiff manage eradicate weed infestation property requirement also share farming agreement share farming agreement provided event default party may give notice writing party default specifying default giving seven day notice default related non payment money case 30 day remedy default clause 8 1 agreement provided would terminated among matter default remained unremedied see clause 9 2 defendant joseph fragapane came entitled exercise right pursuant relevant contract sale licence power attorney solicitor 12 august 1999 wrote plaintiff informing purchase defendant pursuant contract sale served plaintiff copy power attorney alleged time plaintiff occupying farmhouse upon property farmhouse form part share farming agreement addition letter dated 12 august 1999 defendant requested evidence insurance policy taken accordance term share farming agreement copy plaintiff farm management programme 12 month commencing 1 july 1999 detail rate paid plaintiff pursuant share farming agreement matter addition defendant letter solicitor dated 12 august 1999 informed plaintiff required carry full term share farming agreement share farming agreement negotiated entered land owner plaintiff following discussion first plaintiff mr brian shaw behalf plaintiff one david xu behalf land owner land owner company owned person based china mr xu said melbourne representative person upon letter 12 august 1999 received plaintiff plaintiff responded alleged among matter sale purchase property illegal would challenged plaintiff court basis challenge law never enunciated 18 august 1999 solicitor defendant wrote plaintiff behalf client requested immediate provision matter requested letter 12 august 1999 letter 18 august 1999 defendant solicitor informed plaintiff way notice plaintiff failed pay council rate property breach share farming agreement sum 3 488 37 letter solicitor defendant requested cheque amount rate within seven day gave notice failure comply requirement letter 18 august 1999 would constitute default share farming agreement lead termination agreement letter dated 23 august 1999 plaintiff responded expressed regret weed condition current condition property declared time taken farming attend worst weed garden namely growth infiltration freemasonry beauty christianity mr michael fragapane director defendant deposed affidavit conversation second plaintiff adam james shaw adam shaw informed mr michael fragapane work done property since harvesting barley crop beginning 1999 failure work land would result serious infestation weed noxious weed unrebutted evidence affidavit observation behalf defendant property presently infested box thorn tussock grass fear expressed unless immediate work undertaking control spread weed value property would decrease purported exercise right contract licence power attorney defendant commenced clear part property surrounding farmhouse result plaintiff instituted proceeding urgent basis 16 september 1999 seeking restrain defendant interfering property application adjourned two occasion 17 23 september 1999 enable plaintiff file affidavit material support application opposition affidavit filed behalf defendant eventually matter came hearing 4 october 1999 day addition plaintiff application summons issued defendant seeking stay proceeding pursuant order 23 01 ground proceeding abuse process disclose cause action scandalous frivolous vexatious order succeed application interlocutory injunction plaintiff must firstly satisfy serious question tried defendant purporting exercise right respect property share farming agreement pivotal plaintiff claim breach term agreement furthermore agreement fact terminated course submission mr b shaw behalf plaintiff conceded plaintiff paid rate respect property informed hearing effect oral agreement mr xu behalf land owner effect plaintiff paid insurance money property land owner would pay rate however mr shaw deposed matter affidavit furthermore evidence way affidavit mr xu support assertion furthermore provided affidavit sworn defendant solicitor concerning discussion occurred mr xu time application located china mr xu appear far could ascertain support way oral assertion made mr shaw event mr shaw conceded plaintiff left payment rate property mr xu always awaited advice obligation mr shaw informed mr xu agreed pay rate plaintiff believed end matter order grant injunction would need satisfied upon reasonable basis oral agreement mr shaw behalf plaintiff mr xu behalf defendant respect payment rate insurance alleged evidence support matter event alleged oral agreement made would constitute oral variation agreement writing plaintiff would face difficulty law respect assertion endeavour consider legal avenue available plaintiff contemplated possibility equitable estoppel arising result alleged inducement mr xu plaintiff paid insurance money land owner would pay rate basis principle expressed inmaher v walton storesi cannot satisfied even arguable case equitable estoppel basis evidence contrast consider strong arguable case plaintiff default share farming agreement respect payment rate consequence share farming agreement terminated turn consider allegation respect default share farming agreement concerning provision farming programme mr shaw informed course submission told mr xu behalf land owner farm programme waste time mr shaw informed mr xu understood mr shaw informed result conduct silence mr xu particular non enforcement land owner farm programme requirement share farming agreement plaintiff believed required provide programme mr shaw conceded behalf plaintiff programme prepared provided land owner result request behalf defendant 12 august 1999 onwards mr shaw set matter affidavit despite opportunity way adjournment furthermore evidence way affidavit mr xu support mr shaw version event contrary evidence affidavit solicitor defendant indicated mr xu would support position described mr shaw reason already expressed relation payment rate insurance cannot satisfied evidence plaintiff made serious question tried conversely satisfied highly arguable case plaintiff default share farming agreement respect provision farm programme accordingly share farming agreement terminated allegation letter advising breach share farming agreement dated 12 august 1999 plaintiff failed sow crop property course submission mr shaw conceded plaintiff sown crop 1999 informed plaintiff sown crop year change ownership difficulty plaintiff encountered defendant new owner informed crop would sown middle year plaintiff prevented cannot satisfied evidence namely affidavit sworn plaintiff serious question tried however conversely satisfied highly arguable case plaintiff admission breached term share farming agreement respect obligation sew crop default occurred agreement terminated matter alleged constituted breach term share farming agreement including failure eradicate weed property mr shaw disputed allegation behalf defendant said task eradicating weed large one would taken time furthermore mr shaw told course submission mr xu informed previously good job difficult know make assertion purpose obtaining interlocutory injunction necessary plaintiff satisfy court reasonable basis serious question tried mr shaw openly conceded court weed problem property plaintiff specific obligation term share farming agreement respect control eradication weed admission failed carry obligation satisfied strongly arguable case support defendant plaintiff breach share farming agreement default occurred agreement terminated reason stated therefore satisfied plaintiff fulfilled onus upon demonstrating serious question tried respect interlocutory injunction seek court respect property furthermore well known principle equity come court seeking equitable relief must clean hand basis admission mr b shaw plaintiff arguably default term share farming agreement default led appears agreement properly terminated circumstance court would exercise discretion sought plaintiff event question balance convenience even plaintiff able demonstrate serious question tried cannot satisfied evidence damage suffered plaintiff result conduct action defendant could satisfied order damage could satisfied balance convenience favoured granting injunction accordingly application interlocutory injunction refused turn defendant summons pursuant order 23 01 well stated principle court dismiss proceeding unless case plaintiff absolutely hopeless seedey v commissioner railway case plaintiff appear extremely weak however plaintiff case could described point hopeless abuse process vexatious particularly mr xu give evidence support plaintiff light defendant enquiry seems unlikely however cannot dismiss possibility evidence mr xu circumstance defendant summons adjourned date fixed enable plaintiff opportunity consider position light reason

Review Applicant: Zuhir Bulosvisa Applicant: Jouan Boulos IRT Reference: V97_00886 #number 10243 [1997] IRTA 10243 (14 August 1997).txt

review applicant zuhir bulosvisa applicant jouan boulos irt reference v97 00886 number 10243 1997 irta 10243 14 august 1997 immigration review tribunalstatement decision andreasons decisionirt reference v97 00886 10243 docreview applicant zuhir bulosvisa applicant jouan boulostribunal pippy watson memberdate 14 august 1997place melbournedecision tribunal set aside decision review substitute decision granting m jouan boulos subclass 686 tourist long stay visa authorising stay period six month reason decisionbackgroundthis review decision department immigration multicultural affair department refusing grant subclass 686 tourist long stay visa m jouan boulos visa applicant citizen syria visa applicant lodged visa application 23 april 1997 department office damascus decision refusing application made department 5 may 1997 application review decision department migration internal review office miro lodged visa applicant brother mr zuhir bulos review applicant permanent resident australia 21 may 1997 miro review officer affirmed primary decision 24 june 1997 application review decision lodged immigration review tribunal review applicant 26 june 1997 relevant legislationthe criterion satisfied entitlement subclass 686 tourist long stay visa set part 686 schedule 2 migration regulation regulation criterion relevant application provide follows 686 21 criterion satisfied time application 686 211 1 applicant seek visit australia remain australia visitor purpose visiting australian citizen australian permanent resident parent spouse child brother sister applicant ii another purpose b either adequate fund access adequate fund personal support period visit ii meet requirement subclause 686 221 4 686 212 application made outside australia period stay australia proposed application exceeds 3 month 686 22 criterion satisfied time decision683 221 2 applicant meet requirement subclause applicant continues satisfy criterion subclause 686 211 b application made outside australia applicant continues satisfy criterion clause 686 212 c applicant satisfies minister expressed intention applicant visit australia genuine minister satisfied grant visa would prejudice right interest person custody guardianship access applicant e applicant satisfies public interest criterion 4001 4005 4011 4012 f applicant applying outside australia previously australia applicant satisfies special return criterion 5001 5003 5005 5007 5009 subclause 686 221 2 e refers public interest criterion 4011 following term 4011 1 applicant affected risk factor specified subclause 2 applicant satisfies minister regard applicant circumstance applicant country usual residence little likelihood applicant remain expiry period applicant might authorised remain entry 2 applicant affected risk factor referred subclause 1 period 5 year immediately preceding application applicant applied visa entry permit purpose residence australia b applicant one relevant characteristic common class person shown statistic prepared secretary movement record kept immigration person remained australia expiry respective period time authorised remain australia 3 purpose subclause 2 relevant characteristic following characteristic nationality b marital status c age sex e occupation f class visa currently applied g place lodgment posting application visa addition legislative criterion set minister immigration multicultural affair issued two policy direction regarding australia visitor program undersection 499of themigration act 1958which entitles minister give general direction consistent legislation decision maker policy direction cited policy direction 1 1996 policy direction 2 1996 effect 17 september 1996 policy direction 1 concerned criterion genuine visit policy direction 2 criterion relating whether visa applicant adequate fund support period visit apart listing factor regarded index matter policy direction also deal general approach adopted determining application visitor visa policy direction caution decision maker weight accorded assertion assurance declaration behalf applicant said necessarily sufficient evidence bona fides adequacy fund policy direction 1 1996 list relevant consideration respect determining whether applicant intends genuine visit outlined later decision policy direction 2 1996 clarifies content meaning adequate fund applicant support proposed visit direction state include fund potential medical hospital expense inquiry investigation deliberation respect matter must balanced regard government commitment quick response visitor application resource available meet commitment need protect australia possible entry non bona fide tourist existence risk factor characteristic requires visa applicant must satisfy decision maker little likelihood overstaying authorised period australia based circumstance usual country residence evidencein considering matter tribunal relevant departmental file documentary evidence concerning review applicant income asset visa applicant employment situation preliminary meeting held review applicant assisted accredited assyrian interpreter necessary conduct formal hearing order make decision application evidence follows visa application form visa applicant stated born 12 may 1970 syria state single employed three year mechanical engineering office employed secretary tribunal received documentary evidence employer mr mansour zando zando confirming visa applicant employment company since 3 october 1993 stating income visa applicant state wish visit australia period six month give following reason visit visit brother whose wife pregnant need sic aid supplementary information sheet submitted visa application list family member syria include mother father three brother one sister review applicant member family living syria supplementary information sheet also state 2000 00 saving available meet cost note visa application form made departmental officer also state pay trip assistance one brother elia syria decision record refuse visa state part satisfied demonstrated sufficient personal financial employment commitment would provide adequate incentive return home country intended visit australia also consider strong likelihood work intended visit australia miro review officer affirming original decision stated part follows primary application applicant stated 26 year age single indicated applying 6 month visa state employed secretary evidence provided fact willing take 6 month leave absence implies senior well renumerated sic position one serve incentive return syria addition never travelled indicate compliance visa condition apart family syria absolutely evidence incentive applicant return syria dispute review applicant spouse medical condition issue whether applicant comply visitor visa condition especially whether little likelihood remain australia following authorised period temporary stay regard applicant personal circumstance country usual residence little evidence submitted contrary demonstrated little likelihood applicant remain australia following authorised period temporary stay consequently satisfied applicant meet migration regulation 686 221 2 c review applicant told tribunal wife need family member assistance point life short period sister willing able provide assistance time visit wife neither close relative australia said wife mother deceased mother suffers severe rheumatism also look father rest family documentary medical evidence department file tribunal file state review applicant wife pregnant due give birth approximately 18 september 1997 medical evidence also show suffers condition called osteogenesis imperfecta condition cause disturbance formation bone lead fragile prone fracturing also suffers sciatica requires stick walk find particularly difficult moment many simple daily task example cleaning housework opinion medical carers including physiotherapist would benefit greatly support additional family review applicant currently hold full time position cleaner crown casino also part time position building attendant produced evidence form pay slip evidence income also submitted bank statement evidence saving held told tribunal wife renting accommodation daily living expense utility bill financial commitment stated tribunal previously swore statutory declaration willing provide accommodation living expense cover medical expense duration sister stay said sister pay airfare said sister return syria vast majority family living stable job also good social life also stated sister going particular man approximately two year however aware point formal public commitment sister friend relationship findingsthe finding set according indicia contained policy direction 1 1996 mentioned level personal financial employment commitment may induce applicant return usual country residence tribunal accepts evidence visa applicant currently employed obtained approval employer leave purpose travel australia addition tribunal satisfied visa applicant wish return syria resume familial broader social relationship b circumstance may induce applicant return usual country residence including military service commitment unemployment evidence circumstance case c credibility applicant term character conduct tribunal note review applicant visa applicant provided consistent evidence concerning visa applicant circumstance syria reason visit issue tribunal raise question concerning visa applicant credibility either term character term conduct purpose applicant visit duration stay proposed plan applicant made visit relative applicant personal responsibility financial need earnings level support assistance available applicant person nominated applicant review applicant provided tribunal evidence income saving appear tribunal sufficient cover cost associated proposed visa appears visa applicant pay travel australia review applicant meet cost associated visit tribunal accepts stated reason visit accepts family assistance circumstance reasonable necessary e information disclosed application otherwise obtained indicates reasonable likelihood applicant abide visa condition evidence tribunal give rise suspicion visa applicant abide visa condition f history compliance immigration law applicant visa applicant record non compliance australian immigration law g record person person nominated applicant support visit australia reprehensible breach immigration law ii serious default immigration assurance undertaking iii sponsoring nominating supporting visa application person person applicant overstayed otherwise breached condition visa evidence review applicant record tribunal therefore satisfied visa applicant meet relevant criterion grant subclass 686 tourist long stay visa decisionthe tribunal set aside decision review substitute decision granting m jouan boulos subclass 686 tourist long stay visa authorising stay period six month certify eight preceding page true copy statement decision reason decision pippy watson presiding member deputy registrar date

2016 State Wage Case and Minimum Standard for Remuneration [2016] SAIRComm 4 (1 July 2016).txt

2016 state wage case minimum standard remuneration 2016 saircomm 4 1 july 2016 last updated 11 july 20162016 state wage case minimum standard remuneration 2016 saircomm 4industrial relation commission sa 2016 state wage case minimum standard remunerationjurisdiction 100 proceeding initiated commission 90 application vary award 69 3 application review minimum standard remunerationfile no 2103 2469 2470 2016hearing date written submission received 28 june 2016judgement honour president judge p hannonhis honour deputy president judge j p mccuskerdeputy president k bartelcommissioner p j mcmahondelivered 1 july 2016catchwords wage fixation application increase award rate pay allowance application review minimum standard remuneration msr respect rate pay proceeding initiated commission declaration increase award rate pay allowance party consented increase 2 4 award msr effect first pay period 1 july 2016 consistent decision minimum wage panel fair work commission object act need award msrreliant worker economic evidence considered increase 2 4 granted 1 july 2016 award rate allowance msr state wage case declaration order msr declaration issued 1 july 2016 s 3 69 90 100 fair work act 1994 s 134 284fair work act 2009 cth annual wage review 2015 2016 2016 fwcfb 35002011 state wage case minimum standard remuneration 2011 saircomm 62012 state wage case minimum standard remuneration 2012 saircomm 9representation sa union united voice sa branch mr storyshop distributive allied employee association sa nt mr sagepublic service association south australia mr peakaustralian service union sa nt branch m purdyaustralian education union sa branch m l yorkminister industrial relation mr brownchief executive department premier cabinet m j phillipslocal government association south australia mr r wallaceintroductionthe full commission industrial relation commission south australia commission listed following hearing 4 july 2016 application sa union increase rate pay allowance award commission 90 thefair work act 1994 act application sa union review minimum standard remuneration msr 69 3 act andproceedings initiated commission pursuant 100 act allow granting increase rate pay allowance award commission sa union also sought increase minimum amount payable employee special national minimum wage 2 applied national minimum wage order 2016 application sa union lodged 6 june 2016 following decision delivered 31 may 2016 minimum wage panel fair work commission fwc panel theannual wage review 20152016 1 conducted thefair work act 2009 cth fwa 2009 fwc panel determined 2 4 increase modern award rate pay effective first full pay period 1 july 2016 corresponding increase national minimum wage date resultant new national minimum wage 672 70 per week 17 70 per hour increase 15 80 per week weekly rate sa union lodged written submission support application minister industrial relation chief executive department premier cabinet dpc local government association lga filed responding submission light fwc panel decision consideration relevant employee affected proposed increase responding submission supported granting 2 4 increase award commission msr operative date first pay period 1 july 2016 implementation award adjustment declaration pursuant 100 act 2 light consent sa union application regard applicable statutory principle economic employment data referred commission satisfied grant proposed increase dispensed need party make oral submission accordingly 1 july 2016 commission made declaration issued order 100 3 act giving effect 2 4 increase award rate first pay period 1 july 2016 establishment msr increased 2 4 69 3 act resulted increase applicable pay rate 668 80 per week 684 90 per week thus increasing hourly rate 38 hour week 17 60 per hour 18 02 per hour commission also ordered increase supported wage 81 per week 82 per week provide brief reason satisfaction proposed increase warranted consistent object act relevant provision actthe object set 3 act following passage the2011 state wage case minimum standard remuneration 2011 swc 3 guide approach proceeding light object object act particular relevance present exercise concern provision award relevant flexible expressed non technical language maintenance effective safety net fair enforceable condition performance work employee including fair wage encouraging enterprise agreement relevant flexible expressed non technical language promoting facilitating employment security employment object directed promotion goodwill industry general welfare people south australia would appear le relevance view limited scope impact increase award although regard must always economic circumstance also regard 69 3 act respect need annual establishment msr 73 c relating encouraging facilitating making enterprise agreement need ensure award remuneration operates safety net underpinning negotiation agreement 100 relating circumstance commission may make declaration adopting decision determination fwc panel economic data employment profilethe general economic context industry sector within jurisdiction operate must considered reference recent economic data turn relevant consideration decision fwc panel basis declaratory jurisdiction 100 1 act economic data enables commission ass impact increase real wage employee consider level increase general community wage movement understanding prevailing economic climate likely impact employer fwc panel annual review engages rigorous comprehensive analysis contemporaneous international national economic data whilst contextual difference 2016 decision fwc panel traverse consideration similar must taken account commission proceeding accordance statutory mandate determining grant increase 2 4 modern award national minimum wage fwc panel took account modern award objective minimum wage objective fwa 2009 4 fwc panel observed legislation required exercise broad judgment regard relevant statutory consideration range matter including extending beyond economic consideration concluded matter direct relevance review could generally speaking grouped three broad category economic social collective bargaining 5 term economic consideration fwc panel considered australia economic performance remained generally positive expected increase gross domestic product employment reduction level unemployment average wage growth inflation noted continuing transition towards broader growth following passing resource investment boom 6 social consideration panel remained view modest regular increase minimum wage would measurable adverse impact employment increase needed take account relative living standard need low paid 7 bargaining fwc panel regard need encourage collective bargaining although unable predict impact increase respect 8 noted previous decision commission 9 although degree consistency broad category addressed fwc panel matter must regard object act context consideration significantly different matter level sophistication industrial relation within sector covered state jurisdiction reflected entrenched culture enterprise bargaining small number award reliant employee mean economic social impact increase award non award wage substantially confined federal jurisdiction accordingly object act encourage enterprise bargaining limited relevance profile employee within state jurisdiction number employee may reliant minimum award rate msr rate altered material respect last 4 5 year recent data tendered behalf dpc revealed june 2015 approximately 104 070 public sector employee constituting 85 628 full time equivalent 10 dpc advised proposed determination would result award rate exceeding enterprise agreement rate case 11 number public sector employee said might reliant minimum award rate msr estimated 732 12 17 lga provided updated schedule indicating approximately 95 10 254 employee local government would affected receipt msr 13 proposed increase would result minimum award rate exceeding rate related enterprise agreement 14 schedule submitted dpc lga indicate least previous three year overall percentage award msr reliant employee may directly impacted increase granted commission remains le 1 total employee within state jurisdiction 2 lga employee contrast figure 18 8 awardreliant employee spread across variety industry within jurisdiction fwc 15 identifiable percentage award msrreliant employee directly benefit proposed increase leaveloading provision allowance public sector employee indexed accordance minimum award rate however noted minister submission 16 direct impact proposed increase low view effect require close sectoral analysis economic outlook20 minister filed affidavit mr wilson director economic strategy dpc 17 affidavit provides broad economic overview reference international factor australian economy south australian economy inflation wage necessary summarise content sufficient observe whilst outlook term growth state economy mixed unemployment level increased 0 7 since year ago consider factor significance count flow state modest increase granted fwc panel decisionthe fwc panel noted prevailing economic circumstance provided opportunity improve relative living standard low paid enable better meet need increase 2 4 would lead inflationary pressure highly unlikely measurable negative impact employment time would result modest improvement real wage employee reliant national minimum wage modern award minimum wage 18 qualification mentioned relation difference state opposed federal employment profile limited impact bargaining consideration state context consideration taken account commission view therefore regard object act economic information available adoption outcome fwc panel decision resulting increase 2 4 award msr rate pay consistent statutory charter increase real value wage received award msr reliant worker disincentive enterprise bargaining 2 4 increase apply state minimum award wage msr first full pay period commencing 1 july 2016 proportionate adjustment apply junior apprentice trainee adjustment allowance service accordance 2015 state wage case decision 19 minimum amount payable employee receives supported wage increased 82 per week also operative form first full pay period commencing 1 july 2016 increase applied relevant allowance service increment award listed schedule 1 submission dpc declaration order reflecting outcome set commencement reason including relevant ancillary order annexed decision 2016 state wage case decisiondeclaration order 100 fair work act 1994 file 2103 2016 full industrial relation commission honour president judge p hannonhis honour judge j p mccuskerdeputy president k bartelcommissioner p j mcmahondeclaration ordersthe full commission declares pursuant 100 thefair work act 1994 act adopts modification decision minimum wage panel fair work commission theannual wage review 2015 16 2016 fwafb 3500 form set hereunder full commission make declaration pursuant 100 3 act basis applies award generally award set schedule appended hereto declaration come force first pay period commence 1 july 2016 remain force order full commission industrial registrar settle variation award schedule accordance 98 act ordersthatexisting adult award wage increased 2 4 provided rate increased le state minimum award wage varied accordance paragraph 6 rate varied reflect rate 684 90 per week thatproportionate adjustment apply junior trainee employee set relevant award subject result le favourable relevant rate thedeclaration theminimum standard remuneration thatin case piecework session rate increase consequent upon order shall calculated accordance provision relevant award award silent method adjustment rate increased 2 4 thatthe following term included award rate pay award include safety net adjustment payable 2016 state wage case minimum standard remuneration safety net adjustment may offset equivalent amount rate pay received employee whose wage condition employment regulated award wage rate prescribed award award payment include wage payable pursuant enterprise agreement currently operating enterprise flexibility agreement award variation give effect enterprise agreement award arrangement absorption contrary term agreement required increase made existing previous state wage case principle previous general review award wage 2016 state wage case minimum standard remuneration excepting resulting enterprise agreement award variation give effect enterprise agreement used offset safety net adjustment thatwhere award received increase previous state wage case general award wage review decision phasein arrangement increase contained award particular increase outstanding recorded additional paragraph follows rate pay award include adjustment payable following decision list decision 6 thatthe state minimum award wage increased 684 90 per week thatthe minimum amount payable supported wage provision award contain supported wage provision model clause increased 82 00 per week relation award work related allowance service increment adjusted accordance the2015 state wage case minimum standard remuneration 2015 saircomm 7 work related allowance service increment increased 2 4 9 thatthe following term included award employer group employer bound award may apply temporarily otherwise reduce postpone phasein application increase labour cost flowing 2016 state wage case minimum standard remuneration ground serious economic adversity merit application determined light particular circumstance case impact employment enterprise level increase labour cost significant factor taken account assessing merit application party making application must seek matter referred pursuant 212 1 act matter president decide whether dealt full commission decision temporarily postpone reduce increase subject review date determined commission time decides application provision individual employer making application pursuant provision may make request hearing matter conducted private contemplated 150 evidentiary material produced case available inspection contemplated 159 act request determined commission circumstance case thatthe award schedule varied first pay period commencing 1 july 2016 liberty granted apply different operative date award phased increase apply based upon particular circumstance thatthe registrar settle variation award accordance 98 act dispute import variation order particular award registrar may refer award concerned member commission determination full commissionpresident1 july 2016schedule aname awardaboriginal education worker dec award p adelaide cemetery authority officer award p adelaide city corporation award lg caretaker cleaner award lg cemetery employee sa authority award lg central linen employee award p chauffeur ministerial public service award p early childhood worker award p firefighting industry employee south australian metropolitan fire service award 2007 p government store employee interim award p hotel adelaide entertainment corporation staff employed parliament joint service act 1985 award p intellectual disability service award p live theatre concert adelaide festival centre trust award p local government cafe restaurant snack bar award lg local government employee award lg local government health service award lg medical scientist south australian public sector award p municipal employee adelaide city council award 2012 lg nurse south australian local government sector award lg nurse south australian public sector award 2002 p part time interpreter translator public service sa award p performing art centre adelaide festival centre trust award p personal assistant member parliament south australia 1989 p police officer award p name awardpre school kindergarten teaching staff award p public service recreation leave loading award p returntowork sa award 2015 p sa ambulance service award p sa public sector local government entity clerk award p lg sa public sector cafe restaurant adelaide convention centre award p sa public sector clerk adelaide entertainment corporation award p public sector live performance award p public sector plumber gasfitters award p public sector salaried employee interim award p school service officer government school award p south australian government building trade award p south australian government civil construction maintenance award p south australian government department instrumentality metal trade award 2007 p south australian government health etc ancillary employee award p south australian government printing interim award p south australian government service award p south australian government transport worker award 1994 p south australian medical officer award p south australian municipal salaried officer award lg tafe educational staff interim award p teacher dec award p declaration minimum standard remunerationpursuant 69 3 ofthefair work act 1994no 2470 2016by full industrial relation commission honour president judge p hannonhis honour judge j p mccuskerdeputy president k bartelcommissioner p j mcmahonin accordance decision the2016 state wage case decision review minimum standard remuneration msr full industrial relation commission hereby declares follows scope standard1 1 standard made pursuant 69 3 thefair work act 1994 1 2 subject 1 3 herein standard applies employer andemployeeswho subject term theactand prevail contract employment existing award condition extent term standard favourable anemployee 1 3 standard apply person covered award subsequently excluded full commission pursuant 72a 6 theactto extent exclusion 2 definitionsfor purpose standard actmeans thefair work act 1994 adultmeans anemployeewho 21 year age apprenticemeans anemployeewho engaged contract training trade pursuant thetraining skill development act 2008 casualmeans anemployeewho engaged paid acasual commissionmeans industrial relation commission south australia employeemeans person engaged contract employment recognised common law person employed remuneration industry within meaning 4 theact juniormeans anemployeewho le 21 year age ordinary weekly hoursmeans maximum 38 hour per week may averaged four consecutive week andordinary hourshas corresponding meaning traineehas meaning set schedule b herein weekly hired employeemeans anemployeeother acasual employee minimum wage adult employeessubject term standard 3 1 minimum weekly wage anadult employeeworkingordinary hoursis 684 90 3 2 aweekly hired adult employeeworking le 38 hour per week paid minimum hourly rate 18 02 hour 3 3 hour worked aweekly hired adult employeein excess theordinary hoursas defined paid minimum hourly rate 18 02 hour 3 4adult casual employeesare paid minimum hourly rate 22 53 hour minimum wage junior employeessubject term standard junior employeesare paid minimum rate pay based upon relevantadultrate pay weekly parttime orcasual applying following gradation according age theemployee weekly hourly casualhourly 17 year age 50 342 509 0111 2617 year age 60 410 9010 8113 5118 year age 70 479 4012 6215 7819 year age 80 547 9014 4218 0320 year age 90 616 4016 2220 28supported wageemployeeswho meet eligibility criterion supported wage set schedule paid minimum wage set schedule according assessed capacity apprentice traineesemployeeswho subject formal contract training pursuant thetraining skill development act 2008are paid relevant minimum wage set schedule b piece work arrangements7 1 anemployeemay remunerated system payment result provided suchemployeeshall working receive minimum amount week equal appropriate wage otherwise established standard 7 2 suchemployeedoes work full week system payment result shall receive weekly minimum amount proportionate time worked system 7 3 purpose clause hour worked payment made may averaged period four consecutive week period theemployeeis regularly engaged employer whichever lesser incidental related provisionsall wage salary commission bonus payment however described made direct benefit anemployeeby employer may taken account purpose satisfying minimum standard exclusion awardsin accordance 72a 5 theacta party award may within 28 day making standard apply full commission award excluded ambit standard part standard date effect review10 1 standard come force first full pay period commencing 1 july 2016 remain force subject review full commission 10 2 standard reviewed least every year full commission intention reviewed time general review award wage undertaken commission may event reviewed upon application made peak entity upon full commission motion full commissionpresident1 july 2016schedule supported employment provisionssa 1 definitionsthis schedule defines condition apply toemployeeswho effect disability eligible supported wage term declaration context schedule following definition apply sa 1 1supported wage systemmeans commonwealth government system promote employment people cannot work full award wage disability documented supported wage system guideline assessment process sa 1 2accredited assessormeans person accredited management unit established commonwealth thesupported wage systemto perform assessment individual productive capacity within thesupported wage system sa 1 3disability support pensionmeans commonwealth pension scheme provide income security person disability provided thesocial security act 1991 amended time time successor scheme sa 1 4assessment instrumentmeans form provided thesupported wage systemthat record assessment productive capacity person employed thesupported wage system sa 2 eligibility criteriaemployeescovered schedule unable perform range duty effect disability productive capacity meet impairment criterion receipt adisability support pension schedule apply existingemployeewho claim employer subject provision relevant worker compensation legislation relating rehabilitation ofemployeeswho injured course current employment schedule apply employer respect facility programme undertaking serviceor like receives funding thedisability service act 1986and fulfils dual role service provider sheltered employer people disability receipt eligible adisability support pensionin accordance requirement thedisability service act 1986and standard contained therein amended time time sa 3 supported wage ratesemployeesto schedule applies must paid applicable percentage minimum rate pay prescribed declaration according following table assessed capacity prescribedminimum rates10 10 20 20 30 30 40 40 50 50 60 60 70 70 80 80 90 90 provided minimum amount payable must le 82per week person assessed capacity 10 must receive high degree assistance support sa 4 assessment capacityfor purpose establishing percentage wage rate paid anemployeeunder schedule productive capacity theemployeewill assessed accordance thesupported wage systemand documented anassessment instrumentby employer anaccredited assessoracceptable theemployeeand theemployee sadvisers employer sa 5 lodgement assessment instrumentsa 5 1 allassessment instrumentsunder condition schedule including appropriate percentage wage paid theemployee must lodged employer registrar commission sa 5 2assessment instrumentsmust agreed signed party assessment must referred registrar inspector appointed 64 1 b act take effect unless objection notified registrar within ten working day sa 6 review assessmentthe assessment applicable percentage subject annual review earlier basis reasonable request review process review must accordance procedure assessing capacity thesupported wage system sa 7 term condition employmentwhere assessment made applicable percentage apply wage rate employeescovered provision schedule entitled term condition employment otherwise specified theact sa 8 workplace adjustmentan employer wishing employ person provision schedule must take reasonable step make change workplace enhance theemployee scapacity job change may involve design job duty working time arrangement work organisation consultation worker area sa 9 trial periodsa 9 1 order adequate assessment theemployee scapacity made employer may employ person provision schedule trial period exceeding twelve week except case additional work adjustment time exceeding four week may needed sa 9 2 trial period assessment capacity must undertaken proposed wage rate continuing employment relationship must determined sa 9 3 minimum amount payable theemployeeduring trial period must le 82per week sa 9 4 work trial include induction training appropriate job trialled sa 9 5 employer andemployeewish establish continuing employment relationship following completion trial period contract employment must entered based outcome assessment sa 4 hereof schedule b apprentice trainee ratessb 1 apprenticessb 1 1 subject exemption set sb 1 2 anapprenticeis entitled minimum wage based upon following percentage theadultweekly minimum wage specified standard per week first year 42 287 70second year 55 376 70third year 75 513 70fourth year 88 602 70providing anadult apprenticemust receive least theadultminimum wage specified standard sb 1 2 exemption granted nominated award relation adult apprentice wage rate set inappendix sb 2 traineessb 2 1 applicationsb 2 1 1 part schedule shall apply person undertaking atraineeship defined sb 2 1 2 part schedule apply anapprentice sb 2 2 definitionssb 2 2 1approved trainingmeans training specified thetraining plan part thetraining agreement registered thet sc includes training undertaken job atraineeshipand involves formal instruction theoretical practical supervised practice training reflects requirement nationaltraining packageor atraineeship schemeand lead qualification australian qualification framework sb 2 2 2t scmeans training skill commission thetraining act sb 2 2 3traineeis individual signatory atraining agreementregistered thet scand involved paid work structured training may job traineedoes include individual already competency thetraineeshipis directed sb 2 2 4traineeshipmeans system training approved thet sc meet requirement nationaltraining packagedeveloped national industry training advisory board endorsed national training quality council lead australian qualification framework qualification specified nationaltraining package includes full timetraineeshipsand part timetraineeshipsincluding school basedtraineeships sb 2 2 5traineeship schememeans approvedtraineeshipapplicable group class employee industry sector industry enterprise approved thet sc sb 2 2 6training actmeans thetraining skill development act 2008or successor legislation sb 2 2 7training agreementmeans contract training atraineeshipmade employer atrainee registered thet sc sb 2 3 minimum wage traineessb 2 3 1 minimum wage payable atraineeunder term standard specified appendix appendix atraineeship ratesclause wagesa b 1full time traineesa b 1 1 weekly wage payable full timetraineesshall provided b 1 4 b 1 5 b 1 6 appendix b 1 2 wage rate apply totraineeswhile undertaking anapproved traineeship includesapproved training b 1 3 wage rate prescribed clause apply complete trade level training covered apprenticeship system b 1 4wage level awhere theaccredited trainingcourse work performed purpose generating skill defined work wage level highest year schooling completedyear 10 year 11 year 12 school leaver 242 00 50 302 00 33 282 00 33 339 00 25 309 00 339 00 407 00plus 1 yearout school339 00 407 00 470 00plus 2 yearsout school407 00 470 00 549 00plus 3 yearsout school470 00 549 00 628 00plus 4 yearsout school549 00 628 00plus 5 year 628 00a b 1 5wage level bwhere theaccredited trainingcourse work performed purpose generating skill defined work wage level b highest year schooling completedyear 10 year 11 year 12 school leaver 242 00 50 302 00 33 282 00 33 339 00 25 309 00 339 00 392 00plus 1 yearout school339 00 392 00 453 00plus 2 yearsout school392 00 453 00 530 00plus 3 yearsout school453 00 530 00 604 00plus 4 yearsout school530 00 604 00plus 5 year 604 00a b 1 6wage level cwhere theaccredited trainingcourse work performed purpose generating skill defined work wage level c highest year schooling completedyear 10 year 11 year 12 school leaver 242 00 50 302 00 33 282 00 33 339 00 25 309 00 339 00 392 00plus 1 yearout school339 00 392 00 442 00plus 2 yearsout school392 00 442 00 495 00plus 3 yearsout school442 00 495 00 551 00plus 4 yearsout school495 00 551 00plus 5 year 551 00a b 1 7school based traineeshipsyear schoolingyear 11 year 12 school basedtraineeshipsin wage level b c 309 00 339 00 figure bracket indicate average proportion time spent inapproved trainingto associated wage rate applicable specifically indicated average proportion time spent structured training taken account setting rate 20 b 1 8wage rate certificate iv traineeshipsa b 1 8 1traineesundertaking aqf ivtraineeshipshall receive relevant weekly wage rate aqf iiitraineesat wage level b c applicable addition 3 8 wage rate b 1 8 2 anadult traineewho undertaking atraineeshipfor aqf iv qualification shall receive following weekly wage applicable based allocation aqf iii qualification wage level first year traineeship second year traineeshipwage level 652 677wage level b 627 651wage level c 572 594a b 1 8 3 person employed employer immediately prior becoming anadult traineewith employer person shall suffer reduction rate pay virtue becoming atrainee casual loading disregarded determining whether person suffered reduction rate pay b 1 8 4 atraineeshipis converted aqf ii aqf iiitraineeship aqf iii aqf ivtraineeship thetraineeshall move next higher rate provided appendix higher rate provided new aqf level b 1 9 section set wage level atraineeship b 1 10 purpose provision schoolshall refer period school beyondyear 10 shall deemed b 1 10 1 include period schooling beyondyear 10 part contributed completed year schooling b 1 10 2 include period atraineerepeats whole part year schooling beyondyear 10 b 1 10 3 include period calendar year year schooling completed anda b 1 10 4 effect anniversary date january 1 year b 1 11 despite clause schedule traineesmay employed schedule thetraineeship schemesand area employment listed section b 2part time traineesa b 2 1 table set hourly rate pay training either fully job 20 time spent inapproved training rate derived 38 hour week table 1 trainee left school per hour highest year schooling completedwage level ayear 10 year 11 year 12 school leaver 10 16 11 15 13 39plus 1 yearout school11 15 13 39 15 46plus 2 yearsout school13 39 15 46 18 06plus 3 yearsout school15 46 18 06 20 66plus 4 yearsout school18 06 20 66plus 5 year 20 66wage level byear 10 year 11 year 12 school leaver 10 16 11 15 12 89plus 1 yearout school11 15 12 89 14 90plus 2 yearsout school12 89 14 90 17 43plus 3 yearsout school14 90 17 43 19 87plus 4 yearsout school17 43 19 87plus 5 year 19 87wage level cyear 10 year 11 year 12 school leaver 10 16 11 15 12 89plus 1 yearout school11 15 12 89 14 54plus 2 yearsout school12 89 14 54 16 28plus 3 yearsout school14 54 16 28 18 13plus 4 yearsout school16 28 18 13plus 5 year 18 13table 2 school based traineeship per hour year schoolingyear 11 year 12 wage level b c 10 16 11 1520 loading 12 19 13 38 agreement exists trainee additional 20 loading may paid ordinary hour lieu annual leave personal leave public holiday table 3 wage rate part time certificate iv traineeship per hour traineesundertaking part time aqf ivtraineeshipshall receive relevant hourly rate aqf iii trainee wage level b c applicable table 1 2 addition 3 8 wage rate adulttrainee defined undertaking part timetraineeshipfor aqf iv qualification shall receive following hourly rate applicable based allocation aqf iii qualification wage level first year second year oftraineeship traineeshipwage level 21 45 22 27wage level b 20 63 21 41wage level c 18 82 19 54a b 2 2 hour payment shall made determined follows b 2 2 1 theapproved trainingfor atraineeship including school basedtraineeship provided job registered training organisation example school tafe rate shall apply total hour worked part timetraineeonthejob b 2 2 2 theapproved trainingis undertaken solely job average proportion time spent inapproved trainingis 20 ie equivalent full timetraineeship total hour onthe job shall multiplied applicable hourly rate 20 shall deducted b 2 2 3 theapproved trainingis partly job partly offthejob average proportion time spent inapproved trainingis 20 ie equivalent fulltimetraineeship total hour spent work training shall multiplied applicable hourly rate 20 shall deducted note noted clause b 1 7 20 average proportion time spent inapproved training taken account setting wage rate fulltimetraineeships b 2 2 4 person employed part time employer award immediately prior becoming part time adulttraineewith employer person shall suffer reduction hourly rate pay virtue becoming atrainee b 2 2 5 normal full time weekly hour 38 appropriate hourly rate may obtained multiplying rate table 38 dividing normal full time hour b 2 3general formulaa b 2 3 1 fortraineeshipsnot covered b 2 1 following formula calculation wage rate shall apply wage rate shall pro rata full time rate based variation amount training amount work period thetraineeship may also varied basis following formula full time wage ratextrainee hour average weekly training time30 4 note 30 4 formula represents 38 ordinary full time hour le average training time full timetrainees ie 20 full time wage ratemeans appropriate rate set b 1 4 b 1 5 b 1 6 b 1 7 schedule b trainee hoursshall hour worked per week including time spent inapproved training c average weekly training timeis based upon length thetraineeshipspecified thetraineeship agreementortraining agreementas follows 7 6 x 12length thetraineeshipin monthsnote 1 7 6 formula represents theaverage weekly training timefor full timetraineewhose ordinary hour 38 per week note 2 party note thetraining agreementwill require atraineeto employed sufficient hour complete requirement thetraineeship including onthejob work experience demonstration competency party also note would result equivalent full day onthejob work per week b 2 3 2example calculation wage rate part time traineeshipa school student commences atraineeshipin year 11 ordinary hour work 38 thetraining agreementspecifies two year 24 month length thetraineeship average weekly training timeis therefore 7 6 x 12 24 3 8 hour trainee hourstotals 15 hour made 11 hour work worked two day week plus 1 5 hour job training plus 2 5 hour jobapproved trainingat school tafe wage rate year 11 309 x15 3 8 113 8430 4the wage rate varies student completes year 11 pass anniversary date 1 january following year begin year 12 iftrainee hourschanges section aallocation traineeship wage levelswage level atraining packagecertificate leveladministrationiiiiiiassessment workplace trainingiiibeauty national iiiblack coaliiiiibusiness servicesiiiiiichemical hydrocarbon oil refiningiiicivil constructioniiicommunity servicesiiiiicorrectional servicesiiifinancial servicesiiifloristryiiifood processing industryiiiforest forest productsiiigas industry utility iiihospitality industryiiiinformation technologyiiiiilaboratory operationsiiilocal government environmental health regulationiiiiilocal government general construction iiilocal government governance administration iiiiiilocal government government iiiiimanufactured mineral productsiiimetal engineering industry engineering production certificateiii technical traineeshipiiitraining packagecertificate levelmuseum library information servicesiiiiinational public servicesiiiiiplastics rubber cable makingiiipublic servicesiiiiiretailiiitelecommunicationsiiiiitextiles clothing footweariiitourismiiiiiitransport distributioniiiwater industry utility iiiwholesale trainingiiiwage level btraining packagecertificate levelaeroskills industryiiasset maintenanceiiiiiasset securityiiiiiiaustralian meat industryiiiiiiautomotive industry manufacturing film tv radio multimediaiiiiiautomotive industry retail service repairiibeauty national iicaravan industryiiiiiiicivil constructioniiientertainment industryiiiiiitraining packagecertificate levelextractive industryiiiiifloristryiifood processing industryiiiforest forest product industryiiigas industry utility iihospitality industryiiilocal government general construction iiimanufactured mineral productsiiimetal engineering industryiiinational community recreation industryiiiiinational fitness industryiiiiinational outdoor recreation industryiiiiinational sport industryiiiiiiplastics rubber cablemakingiiipublic safetyiiprinting graphic artsiipulp paper manufacturing industriesiiiretailiitextile clothing footweariiitransport distributioniiiveterinary nursingiiiiiiwater industry utility iiwholesale trainingiiwage level ctraining packagecertificate levelagricultureiiiiiihorticultureiiiiiimusiciiiiiiracing industryiiiiiseafood industryiiiiii 1 2016 fwcfb 3500 fwcfb 2016 2 minister submission 28 june 2016 dpc submission dated 28 june 2016 lga submission dated 22 june 2016 3 2011 saircomm 6at 49 50 4 fwcfb 2016 4 s 134 284 fwa 2009 5 4 10 33 6 49 50 7 67 69 8 81 9 example 2012 state wage case minimum standard remuneration 2012 saircomm 9at 11 10 dpc schedule appendix previous year figure 103 087 86 372 respectively 11 schedule para iv 12 672 junior inclusive 20 apprentice 65 trainee plus 14 adult apprentice 126 adult employee 5 employee supported wage schedule chief executive submission para v vii 13 including 12 apprentice 66 trainee 9 employee supported wage lga schedule para v vii 14 lga schedule para iv 15 fwcfb 2016 85 reference latest ab statistic available 2014 16 para 3 5 17 affidavit dated 21 june 2015 18 fwcfb 2016 101 19 2015 saircomm 7 rate include increase 2 4 accordance 2016 state wage case decision review msr