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Tax and Superannuation Laws Amendment (Increased Concessional Contributions Cap and Other Measures) Bill 2013 [2013] AUSStaCSBRp 66 (4 December 2013).txt | tax superannuation law amendment increased concessional contribution cap measure bill 2013 2013 ausstacsbrp 66 4 december 2013 tax superannuation law amendment increased concessional contribution cap measure bill 2013backgroundtrespass personal right liberty retrospectivityschedule 3tax superannuation law amendment increased concessional contribution cap measure bill 2013introduced house representative 15 may 2013 received royal assent 28 june 2013 portfolio treasuryintroductionthe committee dealt bill amendment section ofalert digest 6 2013 former minister responded committee comment letter received 8 july 2013 previous parliament copy letter attached report alert digest 6 2013 extractbackgroundthis bill amends various taxation law schedule 1 amends theincome tax assessment act 1997and theincome tax transitional provision act 1997to increase concessional contribution cap temporarily 35 000 2013 14 financial year individual aged 60 year 35 000 2014 15 financial year later financial year individual aged 50 year temporary cap cease general cap index 35 000 schedule 2 amends thesuperannuation government co contribution low income earner act 2003to make technical change ensure low income superannuation contribution operates effectively schedule 3 amends income tax superannuation law thetaxation administration act 1953to reduce tax concession concessionally taxed superannuation contribution high income earner 15 per cent schedule 4 make consequential amendment legislation concerning commonwealth defined benefit superannuation plan member plan affected reduction tax concession concessionally taxed superannuation contribution trespass personal right liberty retrospectivityschedule 3this schedule make number amendment associated reduction tax concession concessionally taxed superannuation contribution high income earner 15 per cent change take effect concessionally taxed superannuation contribution 2012 13 income year later income year although explanatory memorandum indicates proposal announced minister financial service superannuation medium release 24 8 may 2012 noted taken 12 month bill enact proposal brought parliament neither reason delay justification retrospective application given delay dealt explanatory memorandum also noted provision within schedule 3 enable making regulation take effect retrospectively although explanatory memorandum provide justification necessity approach e g 54 committee past prepared accept amendment proposed budget retrospective effect legislation introduced usually limited publication draft bill within six calendar month date announcement taxation amendment brought parliament within 6 month announced committee usually expects delay explained justified problem committee concerned avoid practice legislation press release regrettable taken well six month announcement legislative change bill brought parliamentand committee seek minister explanation delay pending minister reply committee draw senator attention provision may considered trespass unduly personal right liberty breach principle 1 committee term reference former minister response extractthis schedule effectively reduces superannuation tax concession received individual combined income concessional contribution 300 000 30 per cent 15 per cent ensures tax concession received higher income earner closely aligned concession received average income earner standing committee scrutiny bill requested explanation delay announcement legislative change contained schedule 3 bill introduction parliament number factor contributed length time announcement introduction bill parliament firstly ensure equitable treatment possible individual accumulation interest individual defined benefit interest funded unfunded scheme concessional contribution purpose bill includes notional employer contribution defined benefit interest made drafting task necessarily complex demonstrable length schedule 3 associated explanatory material run 127 page secondly substantial amendment multiple act including theincome tax assessment act 1997and thesuperannuation resolution complaint act 1993 required consequential amendment also required range act thegovernor general act 1974andparliamentary contributory superannuation act 1948 contained schedule 4 bill necessitated extensive cross portfolio consultation cross portfolio policy approval including department finance deregulation department defence attorney general department respective minister relation committee concern around retrospectivity schedule 3 bill note proposed change announced medium release 24 8 may 2012 explicitly state policy would apply contribution made 1 july 2012 furthermore immediately following announcement treasury conducted round targeted consultation give industry opportunity provide feedback high level policy design implementation change prior commencement drafting result feedback received industry number key feature policy changed notably administrative model adopted legislation individual based model rather fund based model australian tax office ato issue assessment directly individual provides individual greater flexibility term payment significantly reduces compliance cost fund first round consultation release exposure draft legislation 1 may 2013 treasury developed legislation several agency including office parliamentary counsel ato department finance deregulation department defence attorney general department collaborative approach adopted refine clarify operation reduced tax concession lower implementation compliance cost note approach assisted legislative also contributed delay release exposure draft introduction parliament trust information assistance committee responsethe committee thanks former minister response senator helen polleychair |
Asic v Rich [2004] NSWSC 969 (27 October 2004).txt | asic v rich 2004 nswsc 969 27 october 2004 last updated 3 november 2004new south wale supreme courtcitation asic v rich 2004 nswsc 969current jurisdiction equityfile number 5934 01hearing date 15 october 2004 written submission 22 october 2004judgment date 27 10 2004parties australian security investment commission p john david rich d1 mark alan silbermann d4 judgment austin jlower court jurisdiction applicablelower court file number applicablelower court judicial officer applicablecounsel r b macfarlan qc j p durack sc n j beaumont j e sullivan p l williams sc j steele goodman d1 d4 solicitor jan redfern solicitor australian security investment commission p joanne kelly solicitor d1 d4 catchword evidence client legal privilege issue waiver plaintiff put issue state mind regarding propriety legality use material obtained search warrant document masked client legal privilege provided defendant basis inference masked portion relevant asic state mind search warrant issue waiver client legal privilegeacts cited decision plaintiff may provide evidence alleged privileged character document 10 11judgment supreme courtof new south walesequity divisionaustin jwednesday 27 october 20045934 01 australian security investment commission v john david rich orsjudgment claim waiver privilege respect document 10 11 1his honour judgment prepared basis submission numbered d 13 d 16 21 d 17 22 d 18 also take account brief oral submission recorded transcript 1564 line 27 1573 line 13 2 asic produced substantial quantity document claim client legal privilege supplied defendant list document case asic claimed privilege part document supplied defendant copy document part privilege claimed masked defendant challenged privilege claim led mr breckenridge solicitor part asic legal team swearing affidavit dated 14 october 2004 annex schedule giving description document privilege claimed 3 defendant contended document 10 11 schedule mr breckenridge affidavit asic produced masked form privileged communication privilege waived asic began hear argument whether document privileged senior counsel asic submitted judge responsible final hearing proceeding ought read unmasked version document formed view desirable perhaps necessary case judge determining claim privilege read unmasked document circumstance asic claim masked portion privileged taken hamilton j duty judge determination hamilton j decided masked portion document 10 11 privileged communication 4 defendant contend asic waived privilege attaching part document virtue sometimes called issue waiver reason judgment relate question waiver read masked part document 5 document 10 e mail m redfern various asic officer dated 19 october 2001 recipient messrs howell connor ryan hogan rees croft thomas myers turton headed one tel privileged communication m redfern begin saying opportunity review various document identifies say preliminary view next part e mail presumably statement preliminary view masked later e mail say thing need done follows ensuing material masked paragraph 8 e mail say counsel need advise aspect list matter appears masking paragraph 8 one thing identifies subject counsel advice use material obtained warrant remainder e mail masked 6 schedule affidavit mr breckenridge describes masked portion document 10 follows masked portion e mail refer subject matter search warrant masked portion e mail constitute legal advice m redfern recipient following topic m redfern preliminary view potential civil case director one tel b m redfern view appropriate nature case c legal advice matter need attended 7 document 11 e mail m redfern m rees mr staple copied mr howell mr connor mr hogan dated 25 october 2001 recipient asic officer e mail headed one tel privileged begin confirming opinion certain advice needed case urgently others e mail say 1 warrant advice importnat sic would like brereton advice sic asap remainder e mail masked 8 schedule affidavit mr breckenridge say document 11 masked section e mail contain reference subject matter search warrant masked portion e mail m redfern provides legal advice topic advice counsel obtained 9 question determination whether asic waived privilege respective whole document 10 11 result defendant entitled call unmasked version document general approach question waiver 122 theevidence actand common law well described hely j infort dodge australia pty ltd v nature vet pty ltd 2002 fca 501 24 april 2002 10 follows brings waiver inconsistency court necessary informed consideration fairness perceive conduct client maintenance confidentiality overriding principle fairness operating large mann v carnell 1999 hca 66 1999 201 clr 1at 13 10 sometimes distinction drawn disclosure waiver issue waiver though inconsistency principle inmann v carnellappears underlie specie defendant rely issue waiver say arisen asic affirmatively put state mind issue proceeding would inconsistent asic maintain privilege respect document going state mind 11 explored principle respect waiver privilege common law theevidence act 1995 nsw reason judgment published 7 october 2004 asic v rich 2004 nswsc 923 held asic waived privilege respect legal advice given necc meeting 21 november 2001 disclosing thing discussed meeting returned waiver principle judgment delivered 8 october 2004 asic v rich 2004 nswsc 934 held asic waived privilege producing large quantity document included legal advice observation counsel without rebutting inference disclosure document knowing voluntary unnecessary restate observation waiver principle made judgment 12 useful however investigate detail reasoning full federal court intelstra corporation ltd v bt australasia pty ltd 1998 85 fcr 152 followed applied another full federal court ryan carr marshall jj inperpetual trustee wa ltd v equuscorp pty ltd 1999 fca 925 intelstrathe plaintiff sued defendant damage alleging reliance defendant misleading deceptive conduct defendant sought discovery document would protected legal professional privilege absence waiver including document concerning retainer solicitor advise plaintiff written advice relating plaintiff entitlement rely upon certain representation notwithstanding contractual limitation held majority branson lehane jj beaumont j dissenting plaintiff pleading reliance representation thereby placing issue state mind waived privilege document material formation state mind 13 mentioned judgment 7 october 2004 reasoning full federal court affected unresolved dispute whether theevidence acthad derivatively altered common law waiver privilege court chose follow derivative modification theory adopted another full federal court inadelaide steamship co ltd v spalvins 1998 fca 144 1998 81 fcr 360 approach later rejected high court inesso australia resource ltd v commissioner taxation 1999 201 clr 49 14 nevertheless part joint judgment branson lehane jj intelstraappear reflect current law theevidence actand common law honour referred undue influence case 164 166 pointing evidence called legal advice provided weaker party rebut presumption fraud undue influence weaker party initiating undue influence case put issue quality consent issue ordinarily affected relevant legal advice received party similarly plaintiff legal professional negligence case bringing proceeding taken waived privilege would otherwise attach legal advice 166 quality particular legal advice extent causative loss damage properly assessed placed context totality legal advice received client 15 honour observed 166 party pleads undertook certain action reliance particular representation made another open element cause action issue state mind time alleged reliance occurred issue cannot fairly assessed without examination relevant legal advice received party concluded 167 conduct party lead implication consent use otherwise privileged material implied waiver privilege undue influence case legal professional negligence case sic view state mind case raising determination legal proceeding element cause action relied upon issue incapable fair resolution without reference material 16 held case material going content state mind admissible state mind put issue thus information person disregarded discounted may useful evaluating person state mind temwell pty ltd v dkgr holding pty ltd 2003 fca 948at 12 per ryan j waiver extends material could bearing state mind sense indicating probability likelihood rather mere possibility liquorland australia pty ltd v anghie 2003 vsc 73 2003 7 vr 27at 42 per byrne j followingsouthern equity corporation ltd v arthur andersen co 1997 sasc 6712 1997 70 sasr 166 193 17 present case asic intends tender large quantity document first obtained execution search warrant premise one tel ltd certain residential premise 1 june 2001 defendant object admissibility document partly ground obtained unlawful copying electronic material course execution search warrant unlawfully used asic civil purpose defendant invite court apply discretionary common law principle referred reason judgment published 22 october 2004 connection defendant 20th notice produce theridgewayprinciple referring toridgeway v r 1995 hca 66 1995 184 clr 19 inpollard v r 1992 hca 69 1992 176 clr 177at 204 deane j suggested enforcement authority engaged unlawful conduct deliberately recklessly court would ordinarily exercise power exclude evidence thereby obtained defendant submit asic deliberately recklessly engaged unlawful conduct unlawfully copying electronic material using search warrant material civil purpose court reject asic tender evidence common law principle also invite court reject evidence exercise statutory discretion underss 135and138of theevidence act 18 asic responded defendant developing case search warrant issue adducing evidence jan redfern solicitor record proceeding held senior legal administrative enforcement position asic period 2001 date written submission dated 15 october 2004 d 13 defendant said reading affidavit m redfern asic affirmatively put issue state mind relation propriety legality use search warrant material relation proceeding asic informed court dispute statement long confined asic state mind period december 2001 19 according defendant submission acting way asic waived privilege otherwise privileged material likely influenced state mind however follow asic waived privilege respect masked portion document 10 11 according mr breckenridge evidence neither document contains reference subject matter search warrant opinion legal advice m redfern dealing aspect case search warrant issue definition relate asic state mind relation propriety legality use search warrant material relation proceeding cannot said material likely influencedthat state mind opposed asic general state mind concerning proceeding particular question 20 however subsequent submission dated 20 october 2004 d 16 defendant given broader characterisation state mind say asic put issue relying m redfern evidence refer following component m redfern evidence statement paragraph 7 affidavit believe impediment asic reviewing document obtained search warrant course considered investigation relating various issue arising collapse one tel purpose determining whether documentary material kind rose level proof warrant commencement asic criminal proceeding whether material instead warranted commencement civil proceeding b statement cross examination 1482 10 view time could use search warrant material order investigate conduct consider whether contravention either criminal civil standard relation director duty provision referred view rightly wrongly c evidence understood asic 2001 single undifferentiated investigation combined civil criminal purpose 1482 21 1486 65 21 defendant rely component m redfern evidence say asserted state mind relation propriety asic use search warrant material 2001 two related component belief asic entitled use material investigation combined criminal civil purpose b belief nature asic investigation material time single investigation combined purpose instance predominantly civil investigation two investigation proceeding tandem 22 defendant contend put matter issue asic acted inconsistently maintenance privilege document going m redfern state mind relation element asserted belief 23 critical question whether correct say m redfern evidence put issue every aspect asic state mind going matter subject investigation characterisation single investigation combined criminal civil purpose defendant say asic asserts m redfern evidence acting 2001 basis m redfern believed engaged single combined investigation criminal civil wrongdoing permitted use material obtained warrant contend made assertion asic cannot fairness seek shield disclosure statement m redfern time likely reflect state mind played role formation state mind either nature permitted use material importantly present application nature use material fact put 24 state evidence however cannot inferred masked portion document 10 11 contain statement likely reflect m redfern state mind played role formation state mind regard permitted use search warrant material disagree defendant contention face document 10 likely contain expression view would played direct substantial role formulation asic view nature investigation undertaken particular extent criminal versus civil investigation point time d 16 paragraph 12 see basis unmasked portion document inference 25 basis inference one factor militates asic pointed submission 22 document 10 11 document created m redfern communicate view others rather document cited case communicating advice person whose state mind issue true defendant pointed d 18 issue determination relates asic state mind rather m redfern hearing proceeded basis m redfern state mind particularly significant component conclusion court may reach state mind employer 26 m redfern evidence put issue asic state mind relation lawfulness propriety use search warrant material 2001 evidence effect component put issue belief asic entitlement use material single investigation combined criminal civil purpose legal advice going asic entitlement use search warrant material combined purpose would admissible privileged according mr breckenridge evidence masked portion document 10 11 relate search warrant therefore relate question 27 masked portion document 10 11 contain legal advice relating say whether correct characterise asic investigation single investigation combined criminal civil purpose otherwise legal advice bearing asic state mind respect search warrant issue though expressly referring search warrant matter privilege also waived respect legal advice legal advice aspect investigation proceeding contemplation example advice defendant contemplated proceeding advice potential cause action bearing search warrant issue privilege waived asic putting issue state mind regarding lawfulness use search warrant material 2001 28 seems proper course give asic opportunity provide affidavit evidence presumably mr breckenridge reviewing content masked portion document 10 11 mr breckenridge give evidence effect masked portion bear asic state mind relating lawfulness propriety use search warrant material light m redfern evidence identified defendant submission referred mr breckenridge evidence accepted would conclude privilege masked portion waived 29 paragraph 1 written submission 21 asic conceded would entitled maintain claim privilege document indicated contrary m redfern evidence criminal side investigation come end prior date upon one tel written consent obtained namely 7 december 2001 subsequent written submission 22 asic made submission intended replace 21 primary submission submission 21 treated alternative position asic said concession 21 would applicable court find primary submission 22 30 reached conclusion generally favour asic call primary submission seems asic alternative position based misunderstanding defendant submission waiver privilege 21 appears proceed basis defendant need show masked portion document 10 11 show criminal side investigation come end time document created understand defendant position therefore view 21 misdirected 31 consequently seem document referred schedule 21 presumably way proposed tender application would relevant assistance anything decide therefore reject tender subject liberty asic apply considers tender document necessary appropriate part evidence contemplate 32 leaf concession paragraph 1 21 uncertain position presumably asic would want say withdrawn given reasoning may defendant would want contend concession remains alive evidence asic may wish provide court contemplated address question whether masked portion document contain anything indicating criminal side investigation come end material masked portion would open defendant contend asic concession survived consequence privilege waived respect material shall make decision issue arises last updated 02 11 2004 |
Algeri (Administrator), in the matter of Murray & Roberts Pty Ltd (Administrators Appointed) (No 4) [2023] FCA 313 (5 April 2023).txt | algeri administrator matter murray robert pty ltd administrator appointed 4 2023 fca 313 5 april 2023 last updated 6 april 2023federal court australiaalgeri administrator matter murray robert pty ltd administrator appointed 4 2023 fca 313file number wad 256 2022judgment bank smith jdate judgment 5 april 2023catchwords corporation administration clough group company application 447 1 thecorporations act 2001 cth third extension time convening second meeting creditor company within group yet executed deed company arrangement complex administration extension grantedlegislation corporation act 2001 cth s 439a 447a part 5 3acases cited algeri administrator matter murray robert pty ltd administrator appointed 2022 fca 1506algeri administrator matter murray robert pty ltd administrator appointed 2 2022 fca 1563algeri administrator matter murray robert pty ltd administrator appointed 3 2023 fca 98in matter daisytek australia pty limited 2003 fca 575re grocon pty ltd admins apptd 2 2020 vsc 859division general divisionregistry western australianational practice area commercial corporationssub area corporation corporate insolvencynumber paragraph 25date hearing 5 april 2023counsel plaintiff mr pr edgarsolicitor plaintiff king wood mallesonsorderswad 256 2022in matter murray robert pty ltd administrator appointed acn 105 617 865 salvatore algeri jason tracy glen kanevsky david orr capacity joint several administrator second thirteenth plaintiff named schedulefirst plaintiffmurray robert pty ltd administrator appointed acn 105 617 865 second plaintiffclough limited administrator appointed acn 008 678 813 others named schedule third plaintifforder made bank smith jdate order 5 april 2023the court order extension convening periodpursuant tos 447a 1 thecorporations act 2001 cth 439aoperate period within first plaintiff must convene second meeting creditor murray robert pty ltd administrator appointed acn 105 617 865 second plaintiff proceeding b clough limited administrator appointed acn 008 678 813 third plaintiff proceeding c clough operation pty ltd administrator appointed acn 109 444 279 fourth plaintiff proceeding clough overseas pty ltd administrator appointed acn 067 272 182 fifth plaintiff proceeding e clough seam gas pty ltd administrator appointed acn 139 610 656 sixth plaintiff proceeding f clough engineering pty ltd administrator appointed acn 009 093 869 eleventh plaintiff proceeding g clough project international pty ltd administrator appointed acn 109 444 902 twelfth plaintiff proceeding togethernon doca company unders 439aof thecorporations actbe extended 6 april 2023 ordered court 15 february 2023 midnight 30 june 2023 pursuant tos 447a 1 thecorporations act part 5 3aof thecorporations actis operate relation non doca company notwithstandings 439a 2 thecorporations act second meeting creditor non doca company may held time within five 5 business day end convening period extended order 1 ancillary ordersthe first plaintiff must take reasonable step cause notice order given within one business day making order creditor including person entity claiming creditor non doca company following manner creditor registered user halo platform publishing notice via halo platform ii creditor registered user halo platform first plaintiff email address creditor notifying creditor via email making order providing link website creditor may download order interlocutory process iii creditor registered user halo platform first plaintiff email address creditor postal address creditor received notification non delivery notice sent email accordance ii notifying creditor via post making order providing link website creditor may download order interlocutory process iv placing scanned sealed copy order interlocutory process website maintained first plaintiff http aurestructuring deloitte halo com clough b australian security investment commission c deputy commissioner taxation department employment workplace relation administering fair entitlement guarantee scheme person demonstrate sufficient interest liberty apply court vary discharge order three business day notice first plaintiff first plaintiff cost incidental application cost administration non doca company jointly severally note entry order dealt inrule 39 32of thefederal court rule 2011 reason judgmentbanks smith j fourth application relating administration clough company 13 december 2022 made range order including order limiting liability administrator certain agreement facilitating use halo platform mean communication creditor algeri administrator matter murray robert pty ltd administrator appointed 2022 fca 1506 algeri 1 21 december 2022 made order extending statutory convening period second meeting creditor clough company required bys 439aof thecorporations act 2001 cth 12 january 2023 midnight 17 february 2023 algeri administrator matter murray robert pty ltd administrator appointed 2 2022 fca 1563 algeri 2 15 february 2023 made order extending convening period group company defined thenon doca companiesfrom 17 february 2023 midnight 6 april 2023 algeri administrator matter murray robert pty ltd administrator appointed 3 2023 fca 98 algeri 3 reason assume familiarity reason adopt defined term administrator seek extension convening period 30 june 2023 respect non doca company application supported fifth affidavit one administrator david orr affidavit patrick mackenzie solicitor employed king wood mallesons deposes manner notice application given stakeholder progress since last extensionthe background clough company administration set previous decision together summary work undertaken course administration date respective hearing anticipated inalgeri 3 extended time period permitted pooled single deed company arrangement proposed webuild webuild australia webuild doca would entered respect group clough company seventh eighth ninth tenth thirteenth plaintiff doca company circumstance sale implementation deed webuild webuild australia proposal anticipated webuild doca summarised inalgeri 3 14 17 15 february 2023 administrator conducted meeting creditor doca company creditor resolved respective company would execute webuild doca associated creditor trust deed webuild doca pooled doca covering doca company following execution administrator became deed administrator webuild doca completed 16 february 2023 converting creditor claim doca company claim creditor trust save separate arrangement implemented respect employee completion webuild doca meant doca company longer subject external administration deed administrator became trustee creditor trust whilst facilitating execution completion webuild doca administrator continued ass option respect non doca company second third fourth fifth sixth eleventh twelfth plaintiff mrpl second plaintiff administrator together houlihan lokey conducted comprehensive sale process respect mrpl share mrpl subsidiary ruc cementation mining contractor pty ltd 24 march 2023 mrpl administrator entered binding doca term sheet preferred bidder r limited condition precedent doca met administrator expect doca implemented 30 june 2023 point mrpl come external administration control assumed r limited administrator continued investigate sale opportunity respect asset non doca company business project asset australia overseas mr orr fifth affidavit disclosed detail attempt step undertaken include negotiating potential bidder expressed interest identified project asset conducting numerous meeting discussion respect future clough usa clough canada business travelling new york six day progress sale certain u based project business meeting client advisor regard attending completion share sale clough uk limited wholly owned subsidiary clough overseas pty ltd fifth plaintiff holding company clough group business based united kingdom extension convening periodrelevant legal principlesinalgeri 2 7 14 summarised principle apply application extend time convening meeting creditor unders 439a 6 ands 447a 1 thecorporations act noted relevantly thats 439a 6 thecorporations actprovides one extension time however power unders 447a 1 thecorporations actextends extending convening period notwithstanding court may already granted earlier extension principle inform exercise power extend time convene meeting unders 439aalso inform exercise power unders 447a 1 extend time accordingly paraphrase said 12 ofalgeri 3 take account desirability reaching appropriate balance expectation administration undertaken relatively speedy summary manner need part administrator consider sensible constructive option directed towards maximising return creditor stakeholder considerationi note uncommon administrator complex administration seek lengthy extension convening second meeting creditor sometimes way application seek first extension range six month whilst may appropriate course depending circumstance approach administrator case rather sought shorter period way extension continued report creditor applied court considered extension required considered justifiable fact third application reflects relatively shorter period sought occasion circumstance group course encouraged transparency satisfied administrator maintained sense urgency diligence respect task hand administration many moving part result already achieved example execution completion webuild doca according medium release 17 february 2023 tendered mr orr clough pleased announce february 16 2023 webuild acquired 100 ownership clough australia papua new guinea final acquisition perimeter comprises clough organisation office trademark credential business reference senior management office personnel aud 6 billion worth project backlog end 2022 related project workforce australia png term project transaction includes snowy 2 0 inland rail gowrie kagaru section joint project webuild tallawarra stage b waitsia gas project stage 2 lombrum naval base well project clough preferred bidder cere urea plant mt keith debottle necking woodman point treatment plant darwin shiplift consider appropriate grant extension sought occasion following reason unless extension granted convening period second meeting creditor non doca company expire midnight 6 april 2023 administrator anticipate condition precedent doca proposal respect mrpl sale process relation non doca company completed expiration current convening period mr orr state administrator opinion additional time would enable administrator continue undertake proper process negotiate sale asset non doca company consider given scale complexity administration progress made date despite statutory moratorium provided bypart 5 3aof thecorporations act proposed extension convening period unduly prejudice non doca company creditor administrator consider immediate liquidation opposed extending convening period would produce better outcome non doca company creditor particularly non doca company presently employ staff outstanding employee entitlement previous employee non doca company satisfied non doca company operating company within clough group therefore incur ongoing trade operational expense extension convening period granted therefore administrator contend prejudice may caused creditor non doca company extension convening period greatly outweighed benefit creditor whole conferred additional time available complete sale process accept circumstance giving appropriate weight administrator opinion would best interest creditor non doca company convening period extended 30 june 2023 notable administrator intend convene second meeting creditor non doca company soon practicable depending development meeting may held earlier latest possible time extended time convening meeting sought administrator accordingly also seek daisytek order named approach taken inin matter daisytek australia pty limited 2003 fca 575 permitting hold meeting time extended convening period within five business day notwithstanding term ofs 439a 2 order give administrator greater flexibility convene meeting earlier appropriate circumstance grocon pty ltd admins apptd 2 2020 vsc 859at 22 gardiner asj ancillary ordersancillary order also sought interlocutory process largely administrative standard nature appropriate circumstance accommodate person demonstrate sufficient interest approach court way liberty apply ordersaccordingly conclusion hearing order made largely term sought interlocutory application certify preceding twenty five 25 numbered paragraph true copy reason judgment honourable justice bank smith associate dated 5 april 2023schedule partieswad 256 2022plaintiffsfourth plaintiff clough operation pty ltd administrator appointed acn 109 444 279 fifth plaintiff clough overseas pty ltd administrator appointed acn 067 272 182 sixth plaintiff clough seam gas pty ltd administrator appointed acn 139 610 656 seventh plaintiff clough engineering integrated solution ceis pty ltd administrator appointed acn 097 480 736 eighth plaintiff e20 pty ltd administrator appointed acn 125 234 924 ninth plaintiff sharp resource pty ltd administrator appointed acn 166 613 127 tenth plaintiff clough project pty ltd administrator appointed acn 109 444 831 eleventh plaintiff clough engineering pty ltd administrator appointed acn 009 093 869 twelfth plaintiff clough project international pty ltd administrator appointed acn 109 444 902 thirteenth plaintiff clough project australia pty ltd administrator appointed acn 109 444 215 |
Trevino & Trevino [2023] FedCFamC1A 188 (2 November 2023).txt | trevino trevino 2023 fedcfamc1a 188 2 november 2023 last updated 6 november 2023federal circuit family court australia division 1 appellate jurisdictiontrevino trevino 2023 fedcfamc1a 188appeal trevino trevino 2023 fedcfamc2f 687appeal number naa 185 2023file number syc 5567 2019judgment schonell jdate judgment 2 november 2023catchwords family law appeal parenting appellant contended primary judge erred denying appellant procedural fairness primary judge made order compelling appellant obtain referral counselling neither party sought order primary judge said would make order primary judge fell error giving notice party denying opportunity heard making order inadequacy reason reason clearly adequate appeal allowed part cost certificate issued party legislation federal circuit family court australia act 2021 cth case cited abbott vastano 2022 flc 94 125 2022 fedcfamc1a 222bennett bennett 1991 flc 92 191 1990 famca 148boensch v pascoe 2019 268 clr 593 2019 hca 49collins monroe 2021 fedcfamc1a 75concrete pty ltd v parramatta design development pty ltd 2006 229 clr 577 2006 hca 55crabman v crabman 2 2020 61 fam lr 191 2020 famcafc 146house v king 1936 55 clr 499 2936 hca 40pollard v rrr corporation pty ltd 2009 nswca 110number paragraph 53date hearing 27 october 2023place heard sydney delivered melbournecounsel appellant m sheasolicitor appellant steiner legalcounsel respondent mr keserovicsolicitor respondent adam jones solicitorordersnaa 185 2023syc 5567 2019federal circuit family court australiadivision 1 appellate jurisdictionbetween m trevinoappellantand mr trevinorespondentorder made schonell jdate order 2 november 2023the court order appeal allowed part order 23 order made primary judge 9 june 2023 set aside notice appeal filed 6 july 2023 otherwise dismissed appellant granted cost certificate pursuant tos 9of thefederal proceeding cost act 1981 cth certificate opinion court would appropriate attorney general authorise payment act appellant respect cost incurred appeal respondent granted cost certificate pursuant tos 6of thefederal proceeding cost act 1981 cth certificate opinion court would appropriate attorney general authorise payment act respondent respect cost incurred appeal note form order subject entry court record note copy court reason judgment may subject review remedy minor typographical grammatical error r 10 14 b federal circuit family court australia family law rule 2021 cth record variation order pursuant r 10 13federal circuit family court australia family law rule 2021 cth section 121of thefamily law act 1975 cth make offence except limited circumstance publish proceeding identify person associated person witness involved family law proceeding noted publication judgment court pseudonymtrevino trevinohas approved pursuant tos 121 9 g thefamily law act 1975 cth reason judgmentschonell j notice appeal filed 6 july 2023 appellant mother appealed order made judge division 2 court relation party child time judgment six year age notice appeal contained five ground fell two broad category ground 1 related order compelling appellant attend general practitioner obtain referral counselling contended appellant denied procedural fairness making order ground 3 challenge power make order counsel party conceded error ground 1 established unnecessary consider ground 3 ground 2 4 5 contended inadequacy reason relation making order child travel unaccompanied basis relation easter school holiday time ground 1 contended error way denial procedural fairness consistent authority ground must dealt first concrete pty ltd v parramatta design development pty ltd 2006 hca 55 2006 229 clr 577 honour observed incrabman v crabman 2 2020 famcafc 146 2020 61 fam lr 191 defect administration justice found occurred even judge found correct order must remedied concrete pty ltd v parramatta design development pty ltd 2006 229 clr 577 231 alr 663 70 ipr 468 2006 hca 55at 117 unless done impression created defective course remains undermines public confidence administration justice antoun v r 2006 224 alr 51 2006 hca 2at 28 backgroundthe party commenced cohabitation around 2006 2007 married 2009 separated final basis august 2018 divorced 2019 party one child together x born 2016 currently 7 year age time trial 6 year age party relationship marked high degree parental conflict 6 december 2019 appellant commenced proceeding seeking parenting order various interim order subsequently made increasing respondent time child june 2022 respondent relocated brisbane life partner two child following relocation time child ceased party unable agree travel arrangement respondent subsequently spent time child august 2022 primary judge recorded august 2022 final hearing child spent time respondent brisbane approximately seven occasion travel arrangement involved respondent travelling brisbane child 36 final hearing heard primary judge two day 6 7 march 2023 46 primary judge identified issue relevant appeal follows 1 time child spend father school term holiday well whether time occur sydney 2 age child permitted travel unaccompanied minor 3 order relation special occasion 9 june 2023 primary judge delivered reason judgment found appropriate child spend block period father brisbane school holiday 219 primary judge ordered 2024 onwards child spend eight night block respondent term 1 2 3 holiday approximately half christmas school holiday honour also found child best interest child travel unaccompanied minor consequently ordered travel occur term 1 school holiday 2024 232 primary judge accepted single expert evidence appellant highly anxious regard child travelling unaccompanied 230 ameliorate appellant anxiety primary judge ordered appellant attend upon general practitioner obtain referral counselling support child travelling unaccompanied minor order 23 order made 9 june 2023 ground 1 3that trial judge erred failing afford procedural fairness appellant making order 23 compelling appellant undertake counselling order support child travelling unaccompanied minor sydney brisbane age 7 year 8 month order 23 made without power parenting order self standing order untethered parenting order order 23 following term appellant shall forthwith attend upon general practitioner obtain referral obtain counselling support child travelling unaccompanied sydney brisbane appellant shall provide counsellor copy single expert report dated 7 march 2022 b updated expert report dated 16 february 2023 coercive order issue neither party sought order appellant submitted order contemplated notice given order appellant would opportunity cross examine single expert make submission appropriateness otherwise making order appellant submitted primary judge indicated party would make order respect appellant relied upon following passage transcript honour neither addressed willingness client engage therapeutic part either seek difficulty without client think value making order engaged another area dispute counsel appellant honour mean something seems relatively sensible absence anyone actually engaging likely make well make order emphasis added transcript 7 march 2023 p 157 line 6 16 respondent submitted appellant notice therapy recommended single expert consequentially cannot heard complain submitted possibility order type ultimately made must contemplation appellant submitted primary judge made statement referred submission accordingly basis submission appellant denied opportunity cross examine single expert discussionit apparent updated family report single expert dated 16 february 2023 cross examination single expert view appellant would benefit engaging therapy assist child managing anxiety including relation issue unaccompanied travel however significant difference reading recommendation expert hearing give evidence recommending certain course action making coercive order requiring party comply recommendation fundamental tenant procedural fairness party given notice opportunity adduce evidence make submission order made compelling something tree j observed inabbott vastano 2022 fedcfamc1a 222 2022 flc 94 125 trial judge bound proposal party evidence witness u v u 2002 hca 36 2002 211 clr 238at 80 however error trial judge represent party certain order contemplation make order without affording opportunity party make submission respect seebolitho cohen 2005 famca 458 2005 flc 93 224at 85 lenova lenova 2011 famcafc 114 2011 flc 93 467at 55 robertson sento 2009 famcafc 49at 138 instance order sought either party compelled appellant attend upon counselling accordingly term party relief presented primary judge identify matter either adducing evidence making submission primary judge made plain party course submission would make coercive order order may appropriate made conditional part parenting order afforded party opportunity heard satisfied circumstance appellant notice order sought positive assurance court order would contemplated let alone made mother denied procedural fairness satisfied merit ground 1 order must set aside circumstance satisfied merit ground 1 consistent object thefederal circuit family court australia act 2021 cth calling quick resolution dispute efficient delivery justice interest judicial economy ground 3 need addressed see alsoboensch v pascoe 2019 hca 49 2019 268 clr 593 ground 2 4 5that trial judge failed give adequate reason making order 32 34 specifically finding appellant firmly held belief child travel unaccompanied age 12 likely change result counselling capable supporting child travel unaccompanied age 7 year 8 month trial judge failed give reason rejecting appellant proposal child spend time easter year trial judge failed give adequate reason accepting respondent proposal child commence spending block period three consecutive week respondent 2024 christmas school holiday ground 2 4 5 challenge adequacy primary judge reason extent adequacy reason depend upon circumstance case adequacy met court able ascertain reasoning justice seen done bennett bennett 1990 famca 148 1991 flc 92 191 reason must party able understand basis judge decision argument accepted pollard v rrr corporation pty ltd 2009 nswca 110 ground challenged adequacy primary judge reason relation travel unaccompanied minor ground 2 said absence reason relation order time easter sought appellant ground 4 order half christmas school holiday block period respondent commencing 2024 2025 ground 5 convenient deal ground order appeared appellant summary argument way oral argument relevant disposition appeal relation ground absence challenge expert evidence primary judge finding relation ground 2 appellant submitted court well knew appellant strongly held opposition order describing belief firm fixed 201 primary judge also knew mother highly anxious child travelling unaccompanied risk child mother support travel appellant submitted age child permitted travel significant therapy recommended evidence would assist appellant shifting strongly held view appellant submitted following term nowhere judgment honour explain satisfied appellant would capable supporting child travelling unaccompanied minorfrom age 7 year 8 month appellant steadfast view child travel unaccompanied age 12 evidence honour therapy would effective shifting appellant position evidence thateven ifthe appellant position could shifted would shift extent would capable supporting child travelling unaccompanied age 7 year 8 month andthat shift could realistically achieved within period 10 month final order made absence evidence possible discern honour concluded appellant would capable supporting child travelling unaccompanied minor commencement term 1 2024 school holiday found appellant highly anxious relation child travelling unaccompanied held firm fixed belief child travel unaccompanied age 12 child needed appellant support order able travel successfully unaccompanied basis incumbent primary judge explain basis decision child commence travelling unaccompanied term 1 2024 school holiday age 7 year 8 month submitted honour failed give adequate reason regard emphasis original relation ground 4 time easter appellant submitted sought specific order respondent sought order one holiday time appellant submitted follows honour ultimately made order child time either parent easter explain body judgment honour failed expose basis uponp sic rejected appellant proposal thereby fell appealable error ground 5 relation block period time christmas school holiday appellant submitted party issue block period start appellant submitting 2027 respondent submitting 2024 appellant submitted single expert made recommendation half christmas holiday start appellant submitted single expert make recommendation graduation seven consecutive night would child best interest give evidence child would capacity cope three consecutive week away appellant importantly however expressed following caveat 56 updated expert report child capacity manage longer time contingent receiving message parent find acceptable help lean increased time given noting appellant clear opposition child spending three consecutive week respondent christmas 2027 incumbent primary judge explain satisfied commencing three week block end 2024 child best interest submitted honour failed expose reasoning process behind decision thus fell appealable error footnote omitted finally appellant submitted order 23 set aside inevitably order 32 34 must also set aside respect appellant submitted submitted appeal allowed relation order 23 order cannot simply set aside honour made order 32 34 child commence unaccompanied travel term 1 2024 school holiday premise appellant would undergo counselling assist supporting unaccompanied travel prior arrangement coming effect honour clearly found child need appellant support order able travel unaccompanied appellant need therapy order provide support order 32 34 cannot remain effect order 23 set aside order 32 34 also course subject independent ground appeal ground 2 also set aside ground respondent contended sufficient reason support order made primary judge even order 23 discharged remaining order remain discussiona reading reason entirety demonstrates adequate comprehensive reason support order made primary judge primary judge carefully considered expert evidence made finding consistent evidence support order subject appeal ground 2 primary judge recorded said appellant child nervousness travelling unaccompanied well respondent evidence child travelled regularly brisbane comfortable flying independent age primary judge also recorded appellant resistance idea unaccompanied travel recording identified appellant summary argument steadfastly opposed child attained age twelve primary judge recorded appellant anxiety relation child travelling unaccompanied child best interest delay unaccompanied travel allow mother receive therapeutic support 230 primary judge acknowledged could risk child relation unaccompanied travel supported appellant 231 satisfied appellant would carefully read reason judgment would undertake therapy support child travelling unaccompanied 203 primary judge also accepted expert evidence child may find travel get older easier onus appellant assist child process 163 determination primary judge child would able travel unaccompanied minor involved exercise discretion full court observation incollins monroe 2021 fedcfamc1a 75are apposite proper exercise discretion parenting case may broad mistake think always one right answer question best interest child require footnote omitted challenge exercise discretion sense ofhouse v king 1936 55 clr 499 limited purely adequacy reason clear reading judgment whole reason primary judge clearly exposed referred 229 237 primary judge specifically addressed issue travelling unaccompanied minor including finding child risk travelling unaccompanied minor term 1 holiday 2024 232 primary judge however also accepted evidence single expert appellant given opportunity obtain professional assistance way therapy supporting child travel unaccompanied 174 192 explains delay implementing unaccompanied travel order satisfied child risk acknowledged importance child spending time extended paternal family brisbane provided appellant opportunity access therapy commencement unaccompanied travel process reasoning revealed basis submission reason primary judge unaccompanied travel commence inadequate accept appellant submission court found error pursuant ground 1 inevitably order 32 34 must set aside term primary judge order unaccompanied travel child commence term 1 school holiday 2024 counsel appellant agreed would date sometime april 2024 circumstance given judgment delivered 9 june 2023 appellant nearly ten month obtain engage therapy assist importantly daughter would disingenuous appellant engaged already embarked upon process therapy circumstance order stayed set aside appellant counsel trial submitted appellant given opportunity attend therapy appellant clearly cognisant recommendation single expert report heard course evidence march 2023 benefit judgment since 9 june 2023 merit ground 2 relation ground 4 5 primary judge recorded 165 single expert opinion child school stage development child sufficiently mature graduate spending one half school holiday parent preferable introduced graduated manner updated family report dated 16 february 2023 paragraph 55 order made primary judge introduced time gradually fact occur pace mother sought demonstrative error issue school holiday time primary judge found important child spend time father queensland would support bond paternal family 168 time occur brisbane frequently possible 182 primary judge accepted single expert evidence risk time occur brisbane child may approach adolescence resent spending sufficient time father sibling 183 primary judge accepted evidence single expert child relationship father paternal family important identity 218 given distance parent sic home appropriate child spend block period time father brisbane school holiday 219 finding expose process reasoning resulted order see child spending increasing period time respondent resulting spending eight night term 1 2 3 school holiday 2024 onwards spending block period time christmas school holiday december 2024 january 2025 ground 4 clear primary judge conscious appellant proposal time easter accepted recommendation single expert subject challenge important child spend block period time respondent extended paternal family brisbane could accommodated child spending time respondent term 1 holiday note concession appellant counsel easter always fall within school holiday period accordingly may well occasion child spending easter holiday appellant said however clear reading totality reason primary judge conscious order appellant sought judge required accept party proposal merely advocated instance primary judge reliance upon unchallenged evidence single expert accepted child best interest spend block period time respondent could accommodated school holiday period relation question child spend block period time christmas school holiday primary judge conscious competing position party well evidence single expert child would able deal block period time away appellant introduced graduated way consistent recommendation primary judge accepted single expert evidence child age would able spend one half school holiday parent recommended seven consecutive night 2023 christmas school holiday whilst single expert make recommendation thereafter entirely consistent evidence child spend block period time respondent queensland age could tolerate half school holiday parent evidence single expert accepted primary judge process reasoning supporting primary judge decision apparent primary judge reason clear capable ascertainment apparent justice seen done merit ground 2 4 5 conclusionas error established ground 1 appeal allowed part appeal succeeded part question law circumstance consider appropriate grant cost certificate appellant respondent certify preceding fifty three 53 numbered paragraph true copy reason judgment honourable justice schonell associate dated 2 november 2023 |
Mimoza Pty Ltd [2003] MRTA 6926 (13 October 2003).txt | mimoza pty ltd 2003 mrta 6926 13 october 2003 last updated 4 december 2003 2003 mrta 6926catchwords review business sponsorship rejection temporary business entry schemereview applicant mimoza pty ltdtribunal migration review tribunalpresiding member delofskimrt file number n03 00328dept file number opf2002 10917date decision 13 october 2003at sydneydecision tribunal affirms decision review finding review applicant meet criterion approval standard business sponsor statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural indigenous affair delegate mimoza pty ltd abn 85 068 144 696 review applicant applied approval business sponsor 18 october 2002 delegate decision reject application approval made 27 november 2002 jurisdiction standing2 review applicant lodged valid application review tribunal 23 december 2002 decision reviewable tribunal application review validly made person standing apply review legislation policy3 themigration regulation 1994 regulation provide approval person business sponsor part scheme called temporary business entry scheme involves three stage person employer seeking approval business sponsor approved business sponsor seeking approval nomination activity individual proposed employed australia person applying temporary visa subclass 457 ground visa applicant proposes employed approved business sponsor activity subject approved business nomination 4 conducting review tribunal bound themigration act 1958 act various regulation made act written direction issued minister undersection 499of act matter may subject policy found publication theprocedures advice manual 3 pam3 themigration series instruction msis produced department immigration multicultural indigenous affair department tribunal required regard policy apply unless cogent reason departing policy 5 tribunal power affirm decision refuse approve business sponsorship set decision aside substitute another decision 6 regulation 1 20d contains criterion approving person business sponsor guideline set pam3 tribunal generally regard regulation stood time lodgement application approval however subsequent amendment may apply circumstance evidence findings7 tribunal tribunal n03 00328 departmental opf2002 010917 case file conducted hearing 23 september 2003 8 review applicant claim business operating outlet sale australian made souvenir item foreign visitor including japanese tourist applied approval standard business sponsor seeking entitlement make one nomination business activity within 12 month period tribunal dealing separate application review relation refusal visa applied visa applicant m tomoko hamano visa applicant basis review applicant proposing employ visa applicant customer service manager mrt case number n03 00334 9 delegate stated review applicant approved business sponsor basis demonstrate would introduce utilise create australia new improved technology business skill would future addition delegate satisfied basis information provided review applicant could demonstrate satisfactory record training australian resident citizen clear evidence demonstrated commitment training australian citizen permanent resident review applicant stated lodging application review assessor reason refuse application seem groundless reason unrealistic used refuse application anyway 10 approved business sponsor review applicant must meet criterion set regulation 1 20d criterion addressed following heading drawing relevant evidence contained file provided hearing applicant approval actively lawfully operating australia 11 search record australian security investment commission indicated review applicant registered 9 february 1995 australian proprietary company limited share recent financial statement submitted company indicate currently lawfully operating australia would proposed employment contribute employment australian citizen permanent resident contribute expansion australian trade contribute improvement australian business link contribute competitiveness within sector australian economy 12 submission dated 13 august 2003 hearing review applicant stated recently increased number shop operates concomitant increase capacity employ australian submission claim visa applicant linguistic skill experience magnify sale contribute australia economy also help staff secure position equipped foreign language skill employment direct employer 13 review applicant stated nomination application sponsoring business position customer service manager would pay salary 35 000 per annum hour work would 40 hour per week visa applicant nominee review applicant applicant approval introduce utilise create new improved technology business skill alternatively applicant approval satisfactory record demonstrated commitment towards training australian citizen permanent resident 14 review applicant indicated sponsorship application would introduce utilise create new improved technology business skill tribunal therefore find review applicant meet requirement subparagraph 1 20d 2 c 15 review applicant stated submission practical recruit linguistically unskilled worker train job send language school subsidy therefore review applicant policy recruit fully skilled person start however review applicant claimed trained one australian permanent resident regular sale assistant review applicant business planned house training sale skill provided new staff start employment training also include introduction souvenir manufacturing industry basic knowledge leather product stock control training conducted job period two week review applicant planned recruit two local apprentice trainee learned sale skill existing staff would offered basic japanese tuition japanese speaking staff following trial one month duration apprentice would selected basis report staff trained staff selected would encouraged attend japanese language lesson six month part time basis completion course would continue learn shop keeping management job time come one staff would promoted shop manager would replace expatriate staff position gradually 16 review applicant also run tour company sydney past 5 year review applicant employed three driver guide australian citizen permanent resident staff trained driver guide approximately one two week start employment familiarise work assumed employee already licensed driver trainee would sit beside trained driver carrying passenger period time become accustomed manner speaking looking tourist trainee taught locality etiquette tour spot japanese culture way claimed became fully skilled driver guide one employee received training product sold well reception skill japanese customer familiarising good sale one additional local staff would recruited next year trained accordance review applicant guideline 17 hearing review applicant stated company paid tafe course one australian employee mr shane smith however review applicant considered course meet need company generally review applicant considered knowledge suitable external course job training appropriate past 3 month review applicant director visa applicant provided job training 6 7 staff member including safety training 18 following guideline taken pam3 set policy requirement training criterion regulation 1 20d evidence satisfactory training record could include number apprentice trainee graduate recruited copy training program demonstrated commitment evidenced detailed training plan specifying proposed number person ie permanent employee trained nature duration training offered word training plan sufficiently detailed quantifiable enable evaluation progress made course business sponsorship monitoring appropriate clear guideline review applicant able demonstrate policy recruiting staff receive training external internal formalised according detailed training plan result staff enhancing qualification employability economic sector work tribunal considers review applicant provided adequate evidence satisfactory training record demonstrated sort commitment training involving detailed quantifiable training plan envisaged guideline tribunal therefore find review applicant meet requirement subparagraph 1 20d 2 c ii conclusion19 tribunal find review applicant meet criterion approval business sponsor specifically paragraph 1 20d 2 c tribunal must therefore affirm decision review decision20 tribunal affirms decision review finding review applicant meet criterion approval business sponsor |
Tervonen v Finland (No. 2) [2009] FCAFC 4 (30 January 2009).txt | tervonen v finland 2 2009 fcafc 4 30 january 2009 last updated 30 january 2009federal court australiatervonen v finland 2 2009 fcafc 4extradition whether appellant extraditable person section 19 ofextradition act 1988 cth court bound earlier decision error analysis conclusion trial judge whether leave amend appeal granted whether dual criminality requirement satisfied proceeding material magistrate trial judge sufficient satisfy statutory test leave amend appeal denied appeal dismissedextradition act 1988 cth 6 10 2 19 2 19 3 c 21director public prosecution cth v kainhofer 1995 185 clr 528minister home affair v tervonen 2008 fcafc 24 2008 166 fcr 91jan tervonen v finland magistrate paul lyonnsd 882 2008north buchanan jagot jj30 january 2009sydneyin federal court australianew south wale district registrynsd 882 2008on appeal single judge federal court australiabetween jan tervonenappellantand finlandfirst respondentmagistrate paul lyonssecond respondentjudges north buchanan jagot jjdate order 30 january 2009where made sydneythe court order 1 appeal dismissed 2 appellant pay first respondent cost appeal note settlement entry order dealt order 36 thefederalcourt rule text entered order located using esearch court website federal court australianew south wale district registrynsd 882 2008on appeal single judge federal court australiabetween finlandfirst respondentmagistrate paul lyonssecond respondentand jan tervonenappellantjudges north buchanan jagot jjdate 30 january 2009place sydneyreasons judgmentthe court 1 judgment appeal gyles j decided bound judgment high court indirector public prosecution cth v kainhofer 1995 185 clr 528 kainhofer conclude argument upon mr tervonen wished rely connection request finland extradition bound fail tervonen v finland 2008 fca 781 2 ground 1 2 appeal following term convenient deal first 1 court erred holding could determining whether appellant eligible surrender unders19 particulars19 2 determine whether warrant produced first respondent accused appellant offence required bys19 3 2 court erred holding could determine whether notice issued attorney general unders16 2 valid notice purpose s19 1 b 3 gyles j conducting review unders 21of theextradition act1988 cth act determination magistrate unders 19of act mr tervonen eligible surrender finland mr tervonen contended extraditable person within meaning ofs 6 act respect five eight warrant issued finland arrest gyles j thought mr tervonen contention raised issue substance issue justiciable proceeding concerned withs 19of act high court held inkainhoferthat magistrate required unders 19of act determine whether person whose extradition sought eligible surrender required decide whether person extraditable person within meaning ofs 6 act power neither question arise magistrate determination unders 19is reviewed unders 21of act 4 gyles j clearly correct conclude bound judgment high court inkainhofer 5 appellant accepted gyles j bound decision inkainhoferto reach conclusion therefore accepted present appeal cannot succeed either ground 1 2 formal submission made counsel appellant thatkainhoferwas wrongly decided preserve possibility persuading high court modified view 6 respondent filed notice contention effect gyles j wrongly characterised five warrant question one coercive investigation rather one accused mr tervonen offence purpose bringing trial light appellant concession neither ground 1 ground 2 upheld court necessary deal notice contention moreover accepted final resolution factual issue raised notice contention ever necessary may require hearing evidence circumstance would appropriate express view matter stage 7 hearing appeal counsel mr tervonen sought leave add ground 3 notice appeal raise question whether adequate attention given thes 19proceedings magistrate thes 21review gyles j dual criminality requirement general nature additional ground indicated permitted appellant formulate specific ground appeal file application leave amend amended notice appeal file written submission support proposed ground 3 respondent provided written submission answer proposed ground 3 amended notice appeal follows 3 court erred determining material adduced finland magistrate sufficient establish level conduct required bysection 19 2 c 8 regard submission made connection ground appears relate warrant 1 3 whether ultimately matter shall return question whether leave given amend appeal add rely upon ground 3 given attention issue raise light history matter 9section 19 2 c act requires dual criminality test satisfied in 19proceedings provides 19 2 purpose subsection 1 person eligible surrender relation extradition offence surrender person sought extradition country c magistrate satisfied conduct person constituting offence relation extradition country equivalent conduct taken place part australia proceeding conducted time extradition request relation person received conduct equivalent conduct would constituted extradition offence relation part australia 10 proceeding magistrate gyles j mr tervonen represented advanced argument dual criminality test way differed way point pursued 11 magistrate conducted thes 19proceedings recorded view dual criminality requirement hisex temporejudgment follows schedule attached attacked defendant affect charge equivalent offence offend australian law set attached table court satisfied offence offence australian law proved court indicated table analogous offence statement going offence certified within warrant statement supplied foreign country 12 gyles j mr tervonen written submission dual criminality follows 57 magistrate even try identify statement supporting document simply relied upon 1st respondent submission authorized act magistrate must form opinion dual criminality based statement see par 55 someone submission 58 magistrate clearly failed bys 19 2 c required satisfy dual criminality based statement describing conduct offence 13 gyles j dealt submission firstly warrant 1 3 warrant 4 8 follows 29 30 respectively 29 submitted conduct relation offence numbered 1 2 3 8 9 10 11 12 14 15 16 insufficient establish dual criminality particular given contention counsel finland provided cross reference count conduct alleged constitute relevant offence provision thecrimes act 1900 nsw corporation act 2000 cth criminal code 1995 cth submitted would contravened conduct alleged finland took place new south wale time alleged conduct accept contention behalf finland respect 30 relation offence reflected warrant 4 8 inclusive tervonen relied upon general attack upon warrant rather taking issue individual offence table provided magistrate identifying equivalent offence australia review book absence argument contrary accept submission correct 14 written submission support ground 3 counsel put matter appeal differently follows 15 crucial question exactly posed mr tervonen paragraph 57 simply magistrate reliance insufficient material rather anterior question jurisdictional nature namely whether material sufficient magistrate engage process 15 support contention counsel argued conclusion reached full court earlier appeal mr tervonen minister home affair v tervonen 2008 fcafc 24 2008 166 fcr 91 minister adequate material satisfy dual criminality provision purpose 16 answer argument counsel wished advance support proposed ground 3 appeal contended material two decision maker fundamentally different e magistrate minister material magistrate primary material provided finland although term primary material used clear magistrate material initially provided finland material referred earlier appeal supplementary understand counsel submission effect magistrate available departmental brief minister including commonwealth director public prosecution briefing memo 16 distinction made dual criminality test 19 2 act incorporation test requirement conduct constituting offence identified particular way section 10 2 act import 19 2 provision following requirement 10 2 reference act conduct constituting offence reference act omission virtue offence alleged committed 17 addition 19 3 c requires magistrate conducting proceeding 19 provided supporting document including duly authenticated statement writing setting description penalty applicable respect offence ii duly authenticated statement writing setting conduct constituting offence 18 section 19 3 c accordingly requires magistrate satisfaction dual criminality based statement offence penalty relevant country requesting extradition proper sufficient statement conduct constituting offence accordance 10 2 allow appropriate comparison australian law 19 magistrate finnish warrant warrant stated offence penalty available also statement finland minister justice stating penalty available applicable provision penal code finland provided extract form therefore adequate statement matter required 19 3 c 20 also clear earlier appeal judgment material supplied finland regarded sufficient meet requirement 10 2 act therefore 19 3 c ii example full court said 80 81 80 primary judge approached question whether sufficient statement alleged conduct mr tervonen focusing upon statement cdpp mr tervonen involved scheme number person reference opening sentence 90 cdpp advice reproduced 42 81 however seems u proper approach question whether sufficient statement conduct requires consideration statement full context material senator johnston relevant question sufficiency statement conduct material limited statement cdpp advice 21 also said 89 90 89 moreover supplementary account offence provided finnish authority contained detailed description mr tervonen involvement siira commission offence particular description mr tervonen conduct disclosed finnish authority alleged indeed could obtain evidence mr tervonen involved siira following respect mr tervonen knowledge fraud committed mr tervonen conceived idea recruiting two men sweden raappana söderqvist carry overt act mr tervonen received proceeds fraudulently obtained fund 90 statement alleged actually done mr tervonen mere restatement charge respect extradition brought williamsat 45 citingzoeller v federal republic germany 1989 23 fcr 282andde bruyn v republic south africa 1999 fca 1344 1999 96 fcr 290 22 magistrate thus adequate material form document provided finland meet requirement 10 2 act make assessment required 19 3 whether dual criminality test met even document suggested counsel mr tervonen available earlier full court 23 event appears counsel may misunderstood fact magistrate mr tervonen supplied magistrate dual criminality advice commonwealth director public prosecution annexure c written submission dated 8 may 2007 intended received use proceeding magistrate 6 june 2007 material gyles j 21 review 24 however matter viewed adequate material magistrate gyles j upon could satisfied dual criminality regard argument put attempt represented proposed ground 3 reformulate refocus argument succeed even mr tervonen allowed depart way argued case magistrate gyles j conclusion stated earlier appeal based upon substantially material magistrate gyles j leave room argument advanced circumstance injustice would caused denying leave rely upon proposed ground 3 grant leave amend ground appeal include proposed ground 3 leave granted would concluded ground 3 provide basis uphold appeal 25 appeal dismissed appropriate dismiss cost certify preceding twenty five 25 numbered paragraph true copy reason judgment herein honourable justice north buchanan jagot associate dated 30 january 2009counsel appellant mr game scmr ashsolicitor appellant ron kesselscounsel first respondent mr r beech jones scms k morgansolicitor first respondent commonwealth director public prosecutionsdate hearing 24 november 2008date judgment 30 january 2009 |
Z32 and Queensland Building and Construction Commission; J26 (Third Party) [2021] QICmr 52 (14 October 2021).txt | z32 queensland building construction commission j26 third party 2021 qicmr 52 14 october 2021 z32 queensland building construction commission j26 third party 2021 qicmr 52 14 october 2021 last updated 29 august 2022decision reason decisioncitation z32 queensland building construction commission j26 third party 2021 qicmr 52 14 october 2021 application number 315697applicant z32 respondent queensland building construction commissionthird party j26decision date 14 october 2021catchwords administrative law right information refusal access contrary public interest recruitment personnel information personal information prejudice agency management function accountability transparency whether disclosure would balance contrary public interest section 47 3 b and49of theright information act 2009 qld administrative law right information sufficiency agency search effort whether agency taken reasonable step identify locate document requested applicant section 130andsections 47 3 e and52of theright information act 2009 qld reason decisionsummarythe applicant applied 1 queensland building construction commission qbcc theright information act 2009 qld rti act access various document concerning recruitment qbcc named individual third party 2 qbcc located various document initial processing internal review qbcc decided 3 release whole part refuse access others ground disclosure would balance contrary public interest 4 applicant applied 5 office information commissioner oic external review qbcc decision refuse access information applicant also contested adequacy qbcc search document relevant request oic sought view third party possible disclosure relevant document third party ultimately press objection disclosure 6 qbcc subsequently agreed release additional information applicant review additionally applicant press access information 7 result small amount information remains issue reason explained consider applicant entitled access information qbcc may however refuse applicant access balance therefore vary qbcc decision refuse access information issue also satisfied qbcc taken reasonable step locate requested document therefore discharged search obligation rti act backgroundsignificant procedural step set appendix decision reviewable decisionthe decision review qbcc internal review decision dated 2 october 2020 evidence consideredevidence submission legislation material considered reaching decision referred reason including footnote appendix 9 making decision regard thehuman right act 2019 qld hr act particularly right seek receive information embodied section 21 act consider observing applying law prescribed rti act right information decision maker respecting acting compatibly right others prescribed hr act 8 done making decision required section 58 1 hr act regard note bell j observation interaction victorian analogue queensland rti act hr act perfectly compatible scope positive right charter observed reference scheme principle thefreedom information act 9 information issuethe information issue comprises segment information appearing second third page statement addressing selection criterion sasc authored third party andthree instance two payroll employee number concerning third party appearing two page 10 reason explained consider ground exist refusing access first two segment information redacted third page sasc refer information category information refer balance information redacted sasc access may view refused category b information 11 payroll employee number simply refer payroll number issue determinationthe issue determination whether qbcc may refuse access information issue ground disclosure would balance contrary public interest section 47 3 b rti act sufficiency search whether qbcc taken reasonable step locate document relevant access application access document may refused ground document nonexistent unlocatable 12 procedural complaint allegation biasbefore dealing substantive issue identified preceding paragraph firstly note applicant made various complaint allegation review including assertion bias delegate managed external review claim applicant denied procedural fairness delegate relevant allegation levelled thus seems matter fact bulk applicant grievance regard including bias essentially fall away strictly need dealt 13 complaint fairness reviewed procedure followed review quite satisfied applicant treated fairly afforded benefit detailed preliminary view issue view interest also worth remembering applicant consequence external review process considerably better position following qbcc decision secured access number page refused access qbcc success regard follows oic independently impartially assessed relevant informationappraised qbcc decision refuse access sameundertaken third party consultation required rti actadvised qbcc view established ground refusing access ultimately secured qbcc agreement release information oic acceded applicant 14 june 2021 request extension time lodge submission 14 27 july 2021 letter direct submission limited three page direction followed receipt applicant discursive 17 page submission 15 canvassing range issue many beyond power consider made context issue remaining addressed relatively limited number confined matter fact page limit imposed corresponded length oic letter inviting reply also direction given consistently broad discretion conferred information commissioner set procedure external review 16 express power give direction prescribed section 95 2 rti act 17 oic obliged conduct review expeditiously 18 strives meet obligation limited resource must apportioned meet range statutory duty heavy demand external review applicant member community given matter canvassed paragraphs16and17 satisfied page limit direction made 27 july 2021 letter appropriate operate deny applicant fair opportunity put forward case applicant assertion bias accompanying request information commissioner delegate original delegate make decision noted paragraph14 strictly necessary deal issue request given latter practise occurred come matter fresh prior dealing review indeed 19 pplicant 19it adequate simply summarise commissioner 11 august 2021 reply applicant noting review conducted without irregularity accordance oic usual practice well within broad procedural discretion conferred information commissioner delegate bysection 95 1 theright information act 2009 qld finally completeness note recurring theme applicant submission insistence agency public entity failed properly discharge duty worse done corruptly 20 coupled insistence oic thus duly report nominated applicant agency action accordance applicable statutory duty 21 make clear share applicant suspicion identified nothing material enlivening relevant reporting duty yet even obligation account discharge reporting duty let alone world large via published reason decision said turn substantive issue determined access informationqbcc maintains access may refused information remaining issue applicant hand seek access information considered qbcc applicant submission actual information issue view preferable position lie somewhere basis refusing applicant access category information disclosure balance information issue category b information payroll number would however balance contrary public interest access may therefore refused latter information deciding whether disclosure information would balance contrary public interest 22 rti act requires decision maker 23 identify irrelevant factor disregard themidentify relevant public interest factor favouring disclosure nondisclosurebalance relevant factor favouring disclosure nondisclosure anddecide whether disclosure information issue would balance contrary public interest schedule 4 rti act contains non exhaustive list factor may relevant determining balance public interest lie particular case carefully considered list together relevant information reaching decision additionally kept mind rti act pro disclosure bias 24 parliament intention ground refusing access information interpreted narrowly 25 considered irrelevant factor findingscategory informationas noted consider applicant entitled access category information following reason favouring disclosure category information firstly general public interest promoting access government held information 26 disclosure information material relied candidate relatively senior public employment apparently taken account employing agency 27 could reasonably expected 28 contribute transparency qbcc recruitment process ensure enhance accountability qbcc adherence merit equity principle making recruitment decision 29 andreveal background contextual information informing qbcc decision appoint third party 30 discussed public interest served ensuring community access information allowing satisfied public sector appointment made fairly transparently public interest factor identified preceding paragraph deserve substantial weight favouring nondisclosure fact information qbcc submits third party personal information 31 giving rise public interest harm factor prescribed schedule 4 part 4 section 6 rti act public interest harm could however reasonably expected follow disclosure personal information would exceedingly minor third party personal information authored information object release 32 given consider relevant harm factor merit slight weight balancing public interest 33 qbcc also argues disclosure category information could reasonably expected prejudice qbcc management function 34 email dated 25 august 2021 qbcc submitted release specific information could expected prejudice management function agency relation current future personnel consider qbcc employee employee agency would aggrieved information example relating internal staff matter disclosed third party deem given substantial weight nondisclosure deciding public interest accept submission oic explained qbcc review reasonable expect disclosure passage information authored concerning specific individual support individual job selection claim could aggrieve employee current prospective let alone extent might disrupt prejudice qbcc management employee determining consideration regard third party themself object release given consider reasonable expect disclosure would perturb aggrieve staff manner contended qbcc give rise relevant nondisclosure factor 35 accordingly satisfied disclosure category information could reasonably expected prejudice qbcc management function 36 factor therefore need taken account balancing public interest turn balance competing factor one another given third party object disclosure personal information embodied category information satisfied applicable public interest harm factor 37 attracts sufficient weight displace weighty accountability transparency consideration favouring release discussed paragraph29 acknowledge qbcc submission disclosure material course review advance public interest consideration nevertheless remains 38 ase 38 public interest favouring disclosure written job application material category information include public interest revealing kind skill experience claim required win particular position maintaining public confidence appropriately skilled experienced qualified people hold public sector position funded public purse ensuring application similar position accurate particular claim likely view higher seniority position question stronger public interest disclosing document revealing claim position successful applicant third party appointed relatively senior position within qbcc appointment based part gather category information public interest promoted ensuring member public verify appointment public service made equitably based upon respective merit applicant 39 reason explained satisfied release category information serve public interest extent sufficient displace marginal weight attaching sole public interest consideration telling disclosure qbcc discharged onus carry 40 establishing decision refusing access category information justified bearing mind absence objection disclosure third party information relates satisfied balance public interest case favour disclosure category b informationthe category b information consists potentially identifying reference others third party dealing professional capacity within employing agency externally segment reflect entirely commonplace example type information often relied job applicant demonstrate capacity experience given investigatory nature work third party engaged nevertheless possessed sensitivity sensitivity think attenuated third party general lack objection disclosure document appear information people consider person identity could reasonably ascertained 41 category b information comprises personal information person applicant 42 additionally information touching matter workplace performance operation agency personnel sensitive regulatory context also view unconditional disclosure limited segment information could lead potential disquiet thus could reasonably expected prejudice relevant agency management function 43 protecting personal information avoiding prejudice agency management function important public interest deserving considerable weight public interest consideration favour release category information also count favour disclosure category b information however context view avoiding public interest harm would follow release personal information potential prejudice agency management function preferred favouring disclosure information withholding segment avoid potential public interest harm prejudice significantly impairing applicant person ability understand merit third party claim appointment qbcc decision make appointment balance satisfied factor favouring nondisclosure sufficient displace favour disclosure category b information would balance contrary public interest access may therefore refused information section 47 3 b rti act payroll numbersthese number rather insignificant item information largely clerical administrative nature case release strike rather marginal disclosure would promote general public interest promoting access government held information 44 extent disclosing information informing community qbcc operation 45 relatively trivial nature information neither consideration would seem attract anything beyond modest weight nevertheless view rti act express pro disclosure bias absence substantial consideration telling disclosure 46 oic initial view disclosure would balance contrary public interest qbcc however provided u submission review establishing like information past used perpetrate attempted payroll fraud qbcc 47 reason gainsay submission oic advised applicant revised preliminary view effect unconditional disclosure payroll number could reasonably expected give rise public interest prejudice 48 sufficient displace consideration favouring release thus tip balance public interest favour nondisclosure applicant continues press access number 49 applicant case understand number may enable frame future rti access request e reference number obvious would requires access actual number document interest connected one number would seem enough information available page number appear information redacted particular page enable make meaningful application event even assumption mistaken refusing access number impair applicant manner asserts outcome preferred converse accept could reasonably expected follow unconditional release rti act potential fraud public agency summary find consideration favouring nondisclosure payroll number discussed 50 attract weight sufficient displace may tell favour release accordingly disclosure payroll number would balance contrary public interest access may therefore refused information sufficiency searchoic external review function include investigating reviewing whether agency taken reasonable step identify locate document applied applicant 51 oic asked qbcc information concerning search step taken way letter dated 21 april 2021 duly provided advice reply 52 relayed applicant way letter dated 31 may 2021 noting qbcc processing application undertaken 9 5 hour search across seven day electronic physical document repository advised applicant qbcc certified u satisfaction document exist advice prepared accept given concluded qbcc search appeared reasonable could identify search might reasonably required undertake reply 53 applicant submitted qbcc required conduct search document concerning several meeting qbcc officer third party employed another agency present 54 oic addressed contention letter applicant dated 27 july 2021 summarised applicant position term equivalent stated preceding paragraph letter continued follows footnote included disagree term access application originally lodged qbcc requested access document concerning third party qbcc employment concerning establishment recruitment selection several nominated position going qbcc initial decision appears qbcc issued notice intention refuse deal section 42 rti act following agreed narrow term application request copy document regarding recruitment process third party two position within qbcc 55 document supplied 56 however none meeting nominated submission concerned recruitment process third party targeted narrowed access application 57 document instead appear evidence case 5 december 2017 proposed 22 march 2018 meeting inter agency liaison qbcc agency initiated former effort better manage interaction dealing latter andin case 6 march 2018 meeting conduct resolution specific administrative investigation undertaken agency certain qbcc action requiring qbcc undertake search document relating inter agency meeting particular administrative investigation response narrowed application document concerning two specific recruitment process lie beyond reasonable document former kind fall outside scope present application wish pursue access need lodge fresh access application qbcc general request search document concerning meeting communication established former qbcc commissioner third party identified 58 even possible agency qbcc deal vague sweeping request 59 competent applicant unilaterally expand term access application external review 60 applied access document term summarised bound term application 61 applicant continues insist qbcc failed take reasonable step locate relevant document 10 august 2021 submission reply oic 27 july 2021 letter essentially maintaining position summarised paragraph51 without wishing appear presumptuous latter submission appear premised dissatisfaction fact information applicant disclosed qbcc perhaps rise level would expect based subjective construction understanding law regulation governing public sector recruitment whether applicant apprehension justified matter entirely outside remit external review offer opinion adequacy otherwise ofthe contentof recruitment process documentation opposed tosearchesfor process documentation process followed given agency making recruitment decision matter fall explore external review conducted rti act role limited ascertaining whether relevantly qbcc discharged search obligation response applicant access application issue say little oic letter dated 27 july 2021 extracted paragraph52above word accept reasonable step require qbcc responding access application document regarding recruitment process two position cast net broadly let alone document relating inter agency meeting particular administrative investigation another unrelated agency document concerning meeting nominated individual accordingly matter fact satisfied qbcc taken reasonable step identify locate document applied applicant consider preceding finding sufficient dispose issue necessary find access document may refused ground document extent would fall within scope access application nonexistent unlocatable 62 additional mattersbefore concluding reason briefly address two issue pressed applicant review authorship comment made decision review e qbcc internal review decision first applicant contest legitimacy validity decision review contending authored officer le senior initial decision maker flagrant breach rti act 63 applicant contends amount criminal activity public service certain qbcc officer press outcome review presumably decision reflect finding 64 second applicant take issue understand commentary internal review decision defending explaining recruitment process subject applicant rti access application 65 matter exemplifies applicant desire oic make finding issue outside power authority desire appears premised misconceived notion free ranging policing disciplinary role external review observed role limited merit review agency decision refuse access information vindicate general suspicion harboured applicant make public denouncement asserted agency shortcoming 66 information commissioner noted obligation report evidence breach duty misconduct limited circumstance 67 reporting obligation however one required carried way published decision declaration accounting applicant review participant matter bearing external review exercise given external review merit review short answer explained applicant 27 july 2021 letter way quotation observation made right information commissioner earlier unrelated decision response similar argument another applicant 68 oic conduct merit review relevant agency decision mean oic stand shoe agency make decision open agency make effect procedural issue may arisen agency processing application irrelevant external review oic role conduct fresh review relevant fact law make fresh decision accordingly applicant prejudiced procedural issue defect may occurred processing corrected irrelevant merit review process said traversed issue think appropriate least regard question authorship 69 record observation see nothing untoward qbcc internal review decision clearly bear name position signature acting commissioner position think may safely assume higher rank initial decision maker document metadata indicates document created another junior officer neither personal experience routine commonplace course action contemporary public service electronic document correspondence draft reason decision statutory instrument brought existence subordinate officer resulting officer recorded document originator computer application used create 70 finalise 71 document thecontentof correspondence instrument however settled 72 endorsed issued appropriately empowered officer delegate appears exactly case even obligation entertain address issue external review objective probative material cause decisioni vary section 110 1 b rti act qbcc decision refuse access information issue finding qbcc may refuse access category b information payroll number section 47 3 b rti act andqbcc established ground refusing access category information record satisfaction qbcc taken reasonable step identify locate document relevant applicant rti access application therefore discharged search obligation bear rti act extent may necessary access may refused additional document relevant term applicant narrowed rti access application section 47 3 e rti act basis nonexistent unlocatable within meaning section 52 act made decision delegate information commissioner section 145 rti act k shepherdacting right information commissionerdate 14 october 2021appendixsignificant procedural stepsdateevent29 october 2020oic received application external review 2 november 2020oic requested preliminary document qbcc 11 november 2020oic received requested document qbcc 24 november 2020oic notified applicant qbcc external review application accepted requested document qbcc 9 december 2020oic received requested document qbcc 10 march 2021oic consulted third party invited third party apply participate review 22 march 2021the third party applied participate review provided oic submission 8 april 2021oic notified third party application participate review accepted 21 april 2021oic conveyed preliminary view applicant agency third party 23 april 2021oic received submission qbcc response preliminary view oic received applicant request clarification part preliminary view 27 april 2021oic provided clarification applicant 6 may 2021oic received third party submission response preliminary view 11 may 2021having received reply applicant oic 21 april 2021 preliminary view oic wrote applicant confirming information discussed correspondence longer issue 11 may 2021oic conveyed third party submission applicant position response preliminary view qbcc 17 may 2021oic received qbcc submission response oic 21 april 2021 preliminary view including agreement release additional information 31 may 2021oic requested qbcc release relevant information applicant oic conveyed preliminary view applicant 15 june 2021oic received applicant submission response oic 31 may 2021 preliminary view 6 july 2021oic conveyed applicant submission qbcc requested qbcc consider disclosing document 21 july 2021oic received qbcc submission regarding disclosure document 27 july 2021oic conveyed preliminary view applicant 10 august 2021oic received applicant submission response oic preliminary view 11 august 2021oic wrote applicant concerning conduct review 12 august 2021oic requested qbcc consider disclosing information 25 august 2021qbcc agreed release additional information 7 september 2021oic requested qbcc disclose additional information applicant oic confirmed applicant qbcc third party next step review would comprise written decision oic asked third party confirm continuing participation review third party confirmed participation 1 application dated 19 may 2020 2 third party understand appointed secondment position within qbcc subsequently appointed position contract following open recruitment selection process 3 initial decision dated 11 august 2020 internal review decision dated 2 october 2020 4 section 47 3 b rti act 5 application dated 29 october 2020 6 see email third party oic dated 6 may 2021 third party however wish remain participant review application participate section 89 2 rti act accepted oic prior withdrawal objection 7 see email oic applicant dated 11 may 2021 8 xyz v victoria police general 2010 vcat 255 16 march 2010 xyz 573 horrocks v department justice general 2012 vcat 241 2 march 2012 111 9 xyzat 573 10 new appointment paperwork 14 may 2018 000003 one instance new appointment paperwork 14 may 2018 000007 two instance 11 copy relevant page sasc category clearly marked accompany copy reason forwarded qbcc 12 section 47 3 e 52 rti act 13 prior dealing matter applicant 14 email applicant dated 14 june 2021 15 dated 15 june 2021 16 section 95 1 rti act 17 comports entirely practice superior court see way one example order 2 sheridan dcj inwood v commissioner police 2021 qdc 209 18 section 90 rti act 19 thus actual bias applicant could said bring impartial mind determination issue review eye fair minded lay bystander ebner v official trustee bankruptcy 2000 hca 63 2000 205 clr 337 20 paraphrasing example applicant 10 august 2021 submission referring corrupt conduct 21 prescribed section 113 rti act 22 term public interest refers consideration affecting good order functioning community government affair well citizen mean general public interest consideration one common member substantial segment community distinct matter concern purely private personal interest although recognised public interest consideration may apply benefit individual chris wheeler public interest know important know mean 2006 aiadminlawf 2 2006 48aial forum12 14 23 section 49 rti act 24 section 44 rti act 25 section 47 2 rti act 26 implicit object rti act 27 antony griffith university 2001 6 qar 31 antony 28 phrase could reasonably expected requires decision maker distinguish merely possible andexpectations reasonably based real substantial ground exist b brisbane north regional health authority 1994 qicmr 1 1994 1 qar 279 decision information commissioner analysing equivalent exemption repealedfreedom information act 1992 qld 154 160 jurisdiction similarly interpreted phrase distinct something irrational absurd ridiculous seesmolenski v commissioner police nsw police 2015 nswcatad 21at 34 citingcommissioner police nsw police force v camilleri gd 2012 nswadtap 19at 28 mckinnon v secretary department treasury 2006 hca 45at 61 andattorney general department v cockcroft 1986 fca 35 1986 10 fcr 180at 190 29 schedule 4 part 2 item 1 rti act information commissioner predecessor previously recognised existence public interest consideration favouring disclosure information enhance accountability agency adherence merit equity principle job selection process antonyat 47 30 schedule 4 part 3 item 11 rti act 31 personal information defined insection 12of theinformation privacy act 2009 qld information opinion including information opinion forming part database whether true whether recorded material form individual whose identity apparent reasonably ascertained information opinion definition applies purpose rti act schedule 5 relevant information fall within definition 32 email third party dated 6 may 2021 33 completeness consider related privacy nondisclosure factor stated schedule 4 part 3 item 3 arises balancing view third party lack objection release information alternatively apply third party position mean factor would attract minimal weight balancing public interest insufficient shift balance public interest favour nondisclosure 34 schedule 4 part 3 item 19 rti act 35 noting event similar information concerning employee came considered disclosure rti act employee would fair opportunity put concern release accordance third party consultation requirement stated section 37 89 rti act 36 certainly related public interest harm factor set schedule 4 part 4 section 3 c rti act requires reasonable expectation mere prejudice substantial adverse effect grave weighty significant serious effect management agency agency staff cairn port authority department land cairn shelf co 16 pty ltd third party 1994 qicmr 17 1994 1 qar 663at 150 qbcc rely harm factor given onus bear section 87 rti act therefore strictly necessary address parenthetically interest completeness 37 ie schedule 4 part 4 section 6 rti act 38 byrnes department environment 2006 waicmr 6at 90 107 regard written expression interest position 39 hawck department training industrial relation unreported queensland information commissioner 31 january 1997 38 40 section 87 rti act 41 information position title 42 weight unlike category information attenuated third party general lack objection release sasc reason category b information noted personal information third party others 43 schedule 4 part 3 item 19 rti act 44 implicit example object rti act 45 schedule 4 part 2 item 3 rti act 46 accepting number comprise personal information appear overly sensitive example information kind public interest harm presumed flow release would appear significant sasc information discussed also case person relate third party object disclosure information concerning public employment number seem fall within third party personal sphere attract operation privacy nondisclosure factor schedule 4 part 3 item 3 rti act wrong given third party lack objection disclosure would afford consideration slight weight 47 submission dated 21 july 2021 48 nondisclosure factor prescribed schedule 4 part 3 item 2 rti act prejudice financial affair entity discrete public interest consideration warranting weighting balancing noting list public interest consideration set schedule 4 exhaustive 49 submission dated 10 august 2021 50 particularly identified footnote48 51 section 130 rti act recent discussion principle applicable sufficiency search nonexistent document case seev45 queensland police service 2021 qicmr 30 16 june 2021 v45 52 submission dated 17 may 2021 53 submission dated 15 june 2021 54 documentary evidence meeting applicant obtained understand way earlier rti access application linked submission 55 latter narrower application therefore comprises subject decision review ultimately external review 56 2018 01 25 email qbcc agency 2018 03 12 letter third party qbcc 2018 03 13 email qbcc third party 57 indeed even term access application originally framed none meeting concerning establishment recruitment selection position 58 paragraph 65 59 noting obligation borne applicant give sufficient information concerning document enable responsible officer agency minister identify document section 24 2 b therti act 60 robbins brisbane north regional health authority 1994 qicmr 19 1994 2 qar 30 17 61 narrowed consultation qbcc 62 section 47 3 e 52 rti act recent discussion principle relevant application provision seev45 63 submission dated 10 august 2021 contention understand based pdf document property metadata disclose author decision signatory 64 see also applicant 15 june 2021 submission 65 see particularly paragraph 33 applicant 15 june 2021 submission 66 certainly consider whether qbcc establish ed lawful recruitment selection third party executive position qbcc applicant 15 june 2021 submission paragraph 34 67 see footnote21 68 v45at 17 69 second matter already touched see paragraph54 70 e g microsoft word 71 e g adobe pdf program 72 settled |
Tumur v Minister for Immigration [2016] FCCA 2500 (28 September 2016).txt | tumur v minister immigration 2016 fcca 2500 28 september 2016 last updated 4 october 2016federal circuit court australiatumur v minister immigration 2016 fcca 2500catchwords migration review decision delegate minister refusal waive condition visa interlocutory dismissal show cause application arguable case jurisdictional error legislation federal circuit court rule 2001 cth migration act 1958 cth 41migration regulation 1994 cth case cited ahmed v minister immigration 2015 fca 812salazar v minister immigration 2001 fca 899applicant zorigt tumurfirst respondent minister immigration border protectionfile number syg 876 2016judgment judge driverhearing date 28 september 2016delivered sydneydelivered 28 september 2016representationthe applicant appeared personsolicitors respondent m wong mill oakleyinterlocutory order 1 pursuant rule 44 12 1 thefederal circuit court rule 2001 cth application dismissed 2 applicant pay respondent cost disbursement incidental application sum 3 606 accordance rule 44 15 1 item 2 division 1 part 3 thefederal circuit court rule 2001 cth federal circuit courtof australiaat sydneysyg 876 2016zorigt tumurapplicantandminister immigration border protectionrespondentreasons judgment revised transcript applicant mr tumur came australia student 2013 wife zoljartal khisgee also student country mr tumur visa attached condition 8534 prevented applying additional visa appears condition imposed pursuant regulation made unders 41 2 themigration act 1958 cth condition 8534 state holder visa entering australia entitled granted substantive visa protection visa temporary visa specified kind remaining australia mr tumur student visa expired december 2013 remained australia unlawful non citizen 30 july 2015 granted bridging visa b remains effect mr tumur unsuccessfully sought another kind visa currently relevant following failure application reunited wife consequence change mr tumur twice sought waiver condition visa waiver request detailed minister outline submission filed 19 september 2016 waiver requestson 18 december 2015 mr tumur lodged request waive condition 8534 first waiver request stating wished lodge visa application dependent wife student visa 1 first waiver request refused 4 january 2016 basis mr tumur circumstance sufficiently forceful waive condition 8534 2 15 march 2016 mr tumur lodged another request waive condition 8534 second waiver request wished remain australia partner student visa holder 3 mr tumur wife two child together reside mongolia mr tumur stated intended rebuild relationship reunite family onshore 4 delegate decisionon 18 march 2016 delegate refused second waiver request delegate provided brief reason decision although obligation delegate produce reason decision made underregulation 2 05 4 5 delegate found claim support second waiver request substantially different fear claim relating first request 6 present proceedingsthese proceeding began show cause application filed 13 april 2016 two ground application 1 decision department wrong request misunderstood compelling compassionate circumstance officer failed understand compelling circumstance 2 officer referred new application circumstance substantially different first request finding wrong officer failed show two request substantially different first ground bear initial departmental decision subject proceeding second ground bear directly decision subject review application supported short affidavit filed received also evidence court book filed 30 may 2016 minister mr tumur made written submission advance today hearing also received oral submission mr tumur wife m khisgee mr tumur m khisgee oral submission explained circumstance m khisgee completed accounting study earlier year july year commenced four year course human relation business college granted student visa valid 2020 m khisgee cogently explained mr tumur required return mongolia able complete study depends upon financial emotional support circumstance might support third application mr tumur waiver condition visa however circumstance developed delegate decision review delegate obligation give reason decision follows view second ground application could succeed unless mr tumur able demonstrate decision made delegate open material plainly decision open mr tumur circumstance materially changed first second request changed mr tumur able produce additional supportive material form letter wife social worker report follows find delegate decision material change circumstance demonstrated open material question presence absence compelling compassionate circumstance focus second delegate decision need additional requirement imposed byregulation 2 05 4 b themigration regulation 1994 cth relevantly mr tumur required satisfy minister circumstance time second request substantially different considered previously delegate found decision plainly open otherwise agree minister submission relation applicant ground regulation 2 05 4 relates applicant first attempt apply waiver requires compelling compassionate circumstance developed since applicant granted visa person control resulted major change applicant circumstance regulation 2 05 4 b relates attempt seek waiver provides minister cannot waive condition waiver request already made nothing substance new time second request delegate correctly appliedregulation 2 05 4 b mr tumur second waiver application correctly considered whether satisfied circumstance second waiver application substantially different previously considered appropriate circumstance consideration whether circumstance alleged mr tumur compelling support first waiver request mr tumur stated wished lodged application dependent sic wife continues study financially supporting wife two child support second waiver request mr tumur wife provided short letter stating mr tumur broke decided rebuild family mr tumur supported countenance financial support mr tumur also provided social work assessment report stated mr tumur wife presented relationship issue fear unknown relating mr tumur irregular immigration status critical question whether claim substantially different whether delegate satisfied 7 fair reading delegate refusal letter make clear delegate understood relevant law apply considering second waiver application made mr tumur finding made open evidence material reason gave ground raised mr tumur fail raise arguable case relief claimed order pursuant rule 44 12 1 thefederal circuit court rule 2001 cth federal circuit court rule application dismissed consequence dismissal applicant minister seek order cost accordance court scale mr tumur wish heard cost order applicant pay respondent cost disbursement incidental application sum 3 606 accordance rule 44 15 1 item 2 division 1 part 3 federal circuit court rule certify preceding twenty five 25 paragraph true copy reason judgment judge driverdate 29 september 2016 1 court book cb 1 13 2 cb 14 17 3 cb 18 44 4 cb 20 5 salazar v minister immigration 2001 fca 899at 26 6 cb 49 7 ahmed v minister immigration 2015 fca 812per perram j 18 |
Lindsay Graham Councillor v Yamatji Barna Baba Maaja Aboriginal Corporation [2001] WAIRComm 3838 (24 September 2001).txt | lindsay graham councillor v yamatji barna baba maaja aboriginal corporation 2001 waircomm 3838 24 september 2001 last updated 5 july 2007100107335western australian industrial relation commissionpartieslindsay graham councillorapplicant v yamatji barna baba maaja aboriginal corporationrespondentcoramcommissioner j f gregordeliveredmonday 24 september 2001file noapplication 1244 2001citation 2001 wairc 03838____________________________________________________________________________resultsettled____________________________________________________________________________orderwhereas 5 july 2001 lindsay graham councillor applied commission order pursuant theindustrial relation act 1979 andwhereas 13 september 2001 commission conducted conciliation proceeding party agreed respondent pay 15 000 00 redundancy applicant without admission liability full final settlement claim therefore pursuant power vested theindustrial relation act 1979 commission hereby order respondent pay applicant 15 000 00 redundancy le amount payable commissioner taxation pursuant theincome tax assessment act 1936and actually paid without admission liability full final settlement claim commissioner j f gregor |
Medical Board of Australia v Dansie [2023] QCAT 163 (19 July 2023).txt | medical board australia v dansie 2023 qcat 163 19 july 2023 last updated 19 july 2023 2023 qcat 163queensland civil administrative tribunalrobertson judicial memberassisted m ashcroftdr cavanaghdr quinnno ocr 250 2022medical board australia applicantvdansie benjamin respondentbrisbanetuesday 11 april 2023 judgmentjudicial member medical board australia board referred matter tribunal section 193 thehealth practitioner national law queensland national law 21stof september 2022 annexure referral amended filed 1stof november 2022 hearing today proceeds basis party filed statement agreed fact 1 joint submission disciplinary finding sanction factual issue dispute matter proceeds today paper backgroundthe respondent registered medical practitioner completed bachelor medicine bachelor surgery 2017 practiced optometrist 2008 2018 acquired degree optometry qut relevant time employed queensland health principal house officer ophthalmology royal brisbane woman hospital hospital common ground prior conduct subject referral respondent struggled anxiety reduced mood sleep deprivation slight tremor issue relates part breakdown long term relationship 2019 stressor referred material say seek professional help felt embarrassed felt might affect career aspiration consulting psychiatrist dr bassett provided report ahpra confirms respondent suffering major depressive disorder anxiety appropriately treated presently working locum registrar doctor stationed royaldarwin hospital relevant conductinstead seeking professional assistance health issue respondent forged filled number prescription name another doctor hospital neither knew action consented 28thof march 2019 12thof september 2019 presented four forged prescription obtain drug designed self treat health condition included diazepam schedule 4 restricted drug tapentadol schedule 8 control drug conduct contravened relevant provision thehealth drug poison regulation 1996 qld regulation however conduct brought behaviour light occurred 29thof december 2019 presented another forged prescription propranolol diazepam led pharmacist becoming suspicious contacting doctor alleged writer prescription consequence respondent interviewed employer made admission consulted general practitioner 3rdof january 2020 commenced antidepressant medication subject mental health plan 9thof december 2020 pleaded guilty one count forgery one count uttering cairn magistrate court fined 600 conviction recorded previous subsequent criminal history disciplinary matter also accepts notifying board court appearance 9th september 2020 15 day later contravened section 131 national law requires notice relevant act within seven day admitted conduct relation prescription bound individual count forgery uttering charged multiple count respect transaction transaction involved breach various provision regulation breach criminal code admitted conduct contravenes number provision good medical practice code conduct australia code conduct australia doctor code conduct provision admissible proceeding evidence constitutes appropriate professional conduct health practitioner almost invariably tribunal equivalent tribunal state conduct kind held constitute professional misconduct defined section 5 national law respondent agrees conduct amount professional misconduct tribunal find applicant proved respondent engaged professional misconduct sanctionthe relevant principle well known convenient summary set recently judicial member mcgill sc inmedical board australia v nguyen 2021 qcat 346 18 imposing sanction health safety public paramount disciplinary proceeding protective punitive nature relevant consideration include general personal general deterrence maintenance professional standard maintenance public confidence insight remorse part respondent also relevant matter fitness practise respondent time hearing respondent acting treat genuine medical condition suggestion acted otherwise immediately conduct came light made admission remorseful obtained medical treatment another medical practitioner also seen psychiatrist psychologist continued working clearly fit practice cooperated employer police court board resolving proceeding undertaken relevant education course number positive reference including one mother father undoubtedly conduct medical practitioner forging uttering prescription medication extremely serious principle general deterrence important case personal deterrence little relevance step taken address underlying cause conduct party reached agreement appropriate disciplinary response tribunal depart agreement unless order imposed namely reprimand 5000 fine fall outside permissible range sanction conduct case referred joint submission particularly ofhealth ombudsman v white 2019 qcat 36andhealth ombudsman v nlm 2018 qcat 164clearly demonstrate agreed sanction well within permissible range tribunal make following finding order pursuant 196 1 b iii national law respondent behaved way constitutes professional misconduct pursuant 196 2 national law respondent reprimanded pursuant 196 2 c national law respondent pay fine 5 000 00 applicant party bear cost adjourn 1 hearing brief hb pp 24 29 |
Chinese Medicine Board of Australia v Ghaffurian (No 2) (Occupational and Business Regulation) [2012] VCAT 1944 (20 December 2012).txt | chinese medicine board australia v ghaffurian 2 occupational business regulation 2012 vcat 1944 20 december 2012 last updated 31 december 2012victorian civil administrative tribunaladministrative divisionoccupational business regulation listvcat reference b178 2011catchwordshealth profession registration act2005 77 person registered chinese medicine practitioner previous finding professional misconduct unprofessional conduct based excessive unnecessary incompetent clinically unjustified treatment misleading representation causing unreasonable expectation beneficial treatment failure obtain informed consent failure make keep adequate patient record repeatedly breaching guideline practise chinese herbal medicine advertising created unreasonable expectation beneficial treatment advertising using testimonial making inaccurate false representation investigator question appropriate determination applicantchinese medicine board australiarespondentreza ghaffurianwhere heldmelbournebeforesenior member proctormembers l cali x guhearing typehearingdate hearing20 november 2012date order reasons20 december 2012citationchinese medicine board australia v ghaffurian 2 occupational business regulation 2012 vcat 1944ordershaving conducted hearing allegation referred tribunal 17 april 2012 found section 77 1 health profession registration act 2005 hpr act respondent engaged professional misconduct unprofessional conduct defined section 3 1 hpr act tribunal make following determination section 77 4 hpr act respondent registration chinese medicine practitioner division acupuncture chinese herbal medicine cancelled respondent disqualified applying registration chinese medicine practitioner period three year date order respondent reprimanded respondent fined 8 000 payable chinese medicine board australia 31 march 2013 ian proctorsenior memberpresiding memberappearances applicantdr freckelton sc instructed dla piperfor respondentmr clements instructed hwl ebsworthreasonsintroductionin june 2002 mr reza ghaffurian registered thechinese medicine registration act2000 chinese medicine practitioner division acupuncture chinese herbal medicine 1 july 2007 chinese medicine profession became regulated thehealth profession registration act2005 hpr act mr ghaffurian registration continued hpr act december 2010 patient mr ghaffurian notifier notified chinese medicine registration board victoria vic board treatment mr ghaffurian provided vic board investigated march 2011 suspended mr ghaffurian registration october 2011 section 59 2 g hpr act vic board made referral victorian civil administrative tribunal vcat hearing vcat held hearing 6 7 8 february 2012 17 april 2012 found mr ghaffurian engaged professional misconduct unprofessional conduct vcat published finding reason chinese medicine registration board victoria v ghaffurian occupational business regulation 2012 vcat 478 vcat scheduled hearing hear submission jurisdiction make determination appropriate determination however march 2012 mr ghaffurian suffered serious stroke delaying hearing 20 november 2012 1 july 2012 national law came force applicant identity changed chinese medicine board australia 20 november hearing mr clements submitted given lacuna gap hpr act vcat power make determination concerning mr ghaffurian dr freckleton made contrary submission first deal preliminary issue vcat jurisdiction determination proceedingwhere question law arises vcat proceeding panel question decided presiding legal member tribunal case senior member proctor common ground 14 december 2010 vic board received notification concerning mr ghaffurian conduct hpr act still force vic board commenced dealing notification act b 1 july 2012 hpr actwas repealed vic board abolished health profession chinese medicine governed thehealth practitioner regulation national law national law c section 289 2 b national law notification concerning mr ghaffurian conduct dealt hpr act vcat proceeding may dealt hpr act repealed vcat dealt proceeding date therefore health practitioner registered health practitioner vcat may impose one determination provided 77 4 hpr act however mr clements submitted neither suspension cancellation available determination case mr ghaffurian registration suspended since 24 march 2011 therefore registration vcat suspend cancel submits 24 march 2011 vic board suspended mr ghaffurian registration section 40 hpr act suspended ever since b section 40 3 hpr act registration remain suspended investigation hearing matter completed relevant board opinion serious risk health safety public endangered result respondent practising health practitioner ii suspension otherwise revoked c neither vic board national board reached opinion referred sub paragraph otherwise revoked suspension registration section 35 hpr act health practitioner whose registration suspended treated registered period suspension e outcome altered section 3 2 b hpr act see contrary submission nothing language section either state effect purpose proceeding part 3 part 4 act health practitioner whose registration suspended treated registration suspended f vcat must deal matter hpr acthad repealed follows since suspension mr ghaffurian registration 4 march 2011 treated registered ii therefore registration suspend cancel iii therefore vcat power impose determination suspension cancellation iv vcat also power impose determination disqualification applying registration specified period time pursuant s77 4 hpr act determination imposed tribunal first cancelled registration health practitioner reject submission section 77 4 hpr act provides vcat power make determination including reprimand cancel registration disqualify applying registration specified time say 77 determination vcat 4 vcat may make one following determination respect health practitioner c reprimand health practitioner f impose fine health practitioner 50 000 paid responsible board h cancel registration health practitioner disqualify health practitioner applying registration section 4 within specified period health practitioner registration cancelled tribunal health practitioner registration authority another state territory commonwealth new zealand agree dr freckleton submission following part modelled mr ghaffurian suspended registration act lasted 30 june 2012 note printout ahpra website www ahpra gov au provided cover affidavit solicitor acting board provided hearing evidence ongoing registration 30 june 2012 available hearing 1 july 2012 national law place section 289 2 b law proceeding heard decided hpr act still force mr ghaffurian registration status 1 july 2012 determined transitional provision part 12 national law section 269 national law say 1 section applies person immediately participation day participating jurisdiction held general registration however described health profession law jurisdiction 2 participation day person taken hold general registration law health profession 3 sectiongeneral registrationincludes full registration unconditional registration registration without condition b enrolment unconditional enrolment enrolment without condition mr ghaffurian held general registration purpose part 3 part 4of hpr act immediately participation day 30 june2012 general registration therefore capable transition pursuant tos269 national law 1 july 2012 status consolidated virtue following provision apply similar restraint mr ghaffurian registration pursuant national law existed prior transition section 290 national law provides practitioner suspended immediately participation day taken suspended national law b section 207 national law provides effect suspension person taken registered thenational law purpose part 8 deal health performance conduct practitioner section 35 hpr act purpose act mr ghaffurian whose registration suspended treated registered period registration however s3 2 b hpr act say reference registered health practitioner relation matter proceeding referred part 3 investigation panel hearing 4 proceeding review vcat taken include reference person ceased longer registered health practitioner whose registration cancelled suspended section 35of theinterpretation legislation act1984 |
LINX Cargo Care Pty Ltd [2021] FWCA 2977 (28 June 2021).txt | linx cargo care pty ltd 2021 fwca 2977 28 june 2021 last updated 16 july 2021 2021 fwca 2977fair work commissiondecisionfair work act 2009s 225 application termination enterprise agreement nominal expiry datelinx cargo care pty ltd ag2021 5115 linx west logistics enterprise agreement 2017road transport industrydeputy president beaumontperth 28 june 2021application termination linx west logistics enterprise agreement 2017 1 decision concern application made linx cargo care pty ltd theapplicant 13 may 2021 termination thelinx west logistics enterprise agreement 2017 theagreement 1 made unders 225of thefair work act 2009 theact 2 section act allows employer apply commission termination agreement passed nominal expiry date 3 section 226of act set detail consideration commission dealing application fwc must terminate enterprise agreementif application termination enterprise agreement made undersection 225 fwc must terminate agreement fwc satisfied contrary public interest b fwc considers appropriate terminate agreement taking account circumstance including view employee employer employee organisation covered agreement ii circumstance employee employer organisation including likely effect termination 4 support application applicant provided statutory declaration m sinead bryson human resource industrial relation business partner applicant 5 m bryson explains agreement nominal expiry date 30 june 2019 employee covered agreement intention applicant utilise agreement future work previously performed agreement longer required performed 6 transport worker union theunion invited provide view application union opposed application consideration 7 satisfied termination agreement contrary public interest circumstance case appropriate terminate agreement 8 view employer considered accept m bryson statement declaration employee covered agreement union challenged point 9 accordingly theagreementis terminated pursuant tos 227of act termination take effect date decision deputy president 1 ae427017 printed authority commonwealth government printer ae511586 pr730122 |
The Village At West End [2006] QBCCMCmr 159 (29 March 2006).txt | village west end 2006 qbccmcmr 159 29 march 2006 last updated 19 july 2006reference 0013 2006order adjudicatormade part 9 chapter 6body corporate community management act 1997number scheme 28712name scheme village west endaddress scheme 30 50 mollison street south brisbane qd 4101take notice pursuant application made abovementioned act byreiko macindoe co owner lot 61i hereby orderthat application reverse body corporate decision refuse permission applicant keep dog within lot dismissed orderthat applicant reiko macindoe shall within 1 month date order remove dog lot keep permanently removed lot orderthat order shall preclude applicant making application body corporate approval keep dog within lot dog barking problem resolved provided however applicant shall return dog lot unless first obtained approval statement adjudicator reason decision ref 0013 2006 village west end ct 28712order soughtthe applicant sought order adjudicator thebody corporate community management act 1997 act follows reverse decision body corporate approval keep dog jurisdictionthe application evidence dispute owner lot included community title scheme body corporate scheme section 227 1 b act section 276 1 act provides adjudicator may make order equitable circumstance including declaratory order resolve dispute context community title scheme claimed anticipated contravention act community management statement b exercise right power performance duty act community management statement c claimed anticipated contractual matter engagement person body corporate manager service contractor community title scheme ii authorisation person letting agent community title scheme order may require person act prohibit person acting way stated order section 276 2 adjudicator order may contain ancillary consequential provision adjudicator considers necessary appropriate section 284 1 scheme detailsthe village west end community title scheme comprising 68 lot common property scheme established upon registration building format plan 19 october 2000 scheme regulated thebody corporate community management accommodation module regulation 1997 accommodation module backgroundthe applicant purchased lot september 2003 28 october 2005 applicant husband applied body corporate permission keep small dog lot body corporate considered application annual general meeting held 7 december 2005 motion defeated meeting body corporate gave permission two lot owner keep cat within lot subject certain condition body corporate subsequently advised applicant remove dog lot 31 january 2006 1 february 2006 conducted teleconference applicant body corporate manager subsequently body corporate committee agreed order maintain status quo dog would permitted remain applicant lot order made relation application owner scheme body corporate committee invited respond application twenty seven submission received none supported application applicant exercised right reply document lodged letter owner large dog whose presence scheme authorized adjudicator order dated 10 march 2004 owner supported presence applicant dog within scheme essence majority response owner dog creates nuisance bark dog kept locked inside cage unit day presence dog scheme conducive maintaining maximum rental return large number investor lot scheme presence dog scheme unhygienicin response comment applicant stated dog longer kept cage moved bathroom window adjacent bedroom applicant stated checked rspca also trainer bark buster latter attended unit 24 february 2006 address barking issue stated nothing inherently wrong keeping dog manner unit applicant also stated spoken neighbour told heard noise dog applicant reported next door neighbour claimed made one complaint queried whether complaint resident applicant stated provided next door neighbour home telephone number mobile telephone number requested heard barking bark buster trainer completed session dog please call applicant stated contact next door neighbour determinationthe body corporate empowered make law provide amongst thing regulation including condition applying use enjoyment lot included scheme act s169 1 b law contained community management statement binding owner occupier lot included scheme act s59 law 14 make following provision relation keeping animal subject act occupier lot shall without written consent body corporate bring keep animal lot common property permit invitee bring keep animal lot common property circumstance shall animal weighing 7 5 kg brought kept lot common property general rule adjudicator order compliance law unless evidence either acquiescence discrimination part body corporate acquiescence occurs body corporate aware presence animal scheme fails prolonged period take step animal removed thereby causing owner animal assume implied approval animal presence basis exception would harsh inequitable owner remove animal allowed keep long period time discrimination occurs body corporate allows one owner animal within scheme refuse similar request another owner without logical reasonable basis differing decision discrimination also occur body corporate seek order one owner keeping animal owner also keeping animal logical reasonable basis action basis exception body corporate must treat owner occupier equally regarding enforcement law scheme one large dog authorised order adjudicator 10 march 2004 adjudicator determined body corporate acquiesced presence dog adjudicator provided comprehensive reason decision see application 0641 2004 annual general meeting held 7 december 2005 owner voted favour allowing two lot owner keep cat within respective lot certain condition however grant permission applicant keep dog within lot although decision would appear discriminatory evident submission dog caused nuisance barking particularly left alone lot next door neighbour unit 18 written resident manager four separate occasion complain dog barking recent occasion 16 march 2006 documented episode barking occurred 4 november 2005 1 1 2 hour 20 december 2005 morning 30 january 2006 45 minute 4 march 2006 3 hour 6 march 2006 approximately 15 minute 5 30am although applicant attempted address barking problem engaging bark buster assist modifying dog behaviour appears attempt unsuccessful provided evidence dog presence applicant lot unhygienic caused infestation flea common property addition small dog would need ever walk common property could quite easily carried outside enable exercised council provided park along public footpath furthermore applicant advised longer keep dog caged day therefore disregarded matter arriving decision however dog barking problem satisfied caused nuisance occupier unit 18 basis regard decision owner refuse permission applicant keep dog discriminatory therefore dismissed application allowed applicant period 1 month date order permanently remove dog scheme however also made provision possible return dog body corporate give consent future time event dog barking problem resolved noted however law 14 present form contemplates keeping animal body corporate consent weight limit 7 5 kg appears owner may aware one owner stated purchased lot basis pet allowed scheme whilst another stated applicant advised restriction owning pet purchasing therefore purchased somewhere could keep animal course another owner correctly pointed applicant sought body corporate approval purchased dog anxiety caused current application could avoided finally consensus amongst owner dog allowed circumstance cat weighing 7 5 kg may allowed body corporate consent subject appropriate condition imposed motion 12 annual general meeting law 14 amended state position unequivocally confusion prospective owner future |
Kristian Holdings Pty Ltd v Frankston CC [2016] VCAT 1993 (18 November 2016).txt | kristian holding pty ltd v frankston cc 2016 vcat 1993 18 november 2016 last updated 28 november 2016victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p801 2016permit application 313 2015 pcatchwordssection 77 planning environment act 1987 frankston planning scheme general residential zone schedule 1 design development overlay schedule 6 bushfire management overlay neighbourhood character sustainable design energy efficiency integration street building height site coverage safety landscaping overlooking accessibility dwelling entry daylight new window private open space solar access open space design detail overdevelopment car parkingapplicantkristian holding pty ltdreferral authoritycountry fire authority vicroadsrespondentscountry fire authorityresponsible authorityfrankston city councilsubject land18 nepean highway seafordwhere heldmelbournebeforealison slattery memberhearing typehearingdate hearing3 october 2016date order18 november 2016citationkristian holding pty ltd v frankston cc 2016 vcat 1993orderthe decision responsible authority relation permit application 313 2015 p set aside pursuant tosection 85 1 b ii theplanning environmentact 1987 |
Froomkin, A. Michael --- "ICANN and the domain name system after the 'Affirmation of Commitments'" [2013] ELECD 518; in Brown, Ian (ed), "Research Handbook on Governance of the Internet" (Edward Elgar Publishing, 2013) 27.txt | froomkin michael icann domain name system affirmation commitment 2013 elecd 518 brown ian ed research handbook governance internet edward elgar publishing 2013 27book title research handbook governance interneteditor brown ianpublisher edward elgar publishingisbn hard cover 9781849805025section chapter 2section title icann domain name system affirmation commitment author froomkin michaelnumber page 25abstract description september 30 2009 united state department commerce doc internet corporation assigned name number icann signed affirmation commitment u department commerce icann 2009 purport recast public private relationship heart management domain name system dns icann trumpeted document culmination move public private control dns one icann said completes transition started 11 year ago place beyond doubt icann model best equipped coordinate dns icann 2009c doc treated major milestone u national telecommunication information administration 2009b fact affirmation significant significance political legal legal matter doc allowed one main agreement icann lapse thus surrendering formal visible legal control doc icann doc gave reversionary interest contract icann third party doc right require icann assign contract someone else doc ever lose faith icann |
Nursing and Midwifery Board of Australia v Tainton [2014] QCAT 161 (26 May 2014).txt | nursing midwifery board australia v tainton 2014 qcat 161 26 may 2014 last updated 20 june 2014citation nursing midwifery board australia v tainton 2014 qcat 161parties nursing midwifery board australia applicant vamanda tainton respondent application number ocr089 13matter type occupational regulation mattershearing date papersheard brisbanedecision hon jb thomas judicial member assisted dr allen barnard m mary barnett mr graeme lawrencedelivered 26 may 2014delivered brisbaneorders made recorded respondent practitioner behaved way constitutes professional misconduct respondent reprimanded respondent disqualified applying registration registered nurse period three month date order respondent shall pay board cost proceeding limited 1 000 catchword profession trade health care professional nurse disciplinary proceeding registrant engaged low key improper relationship prisoner registrant admitted professional misconduct voluntarily surrendered registration two year hearing board seek impose condition future registration whether beyond power tribunal make order registration subsistingprocedure cost maximum cost order capped cost generally registrant voluntarily surrendered registration registrant co operated completely full cost order would onerous whether cost payable registrant limitedhealth practitioner disciplinary proceeding act1999s 398c 1 398k 398lhealth practitioner regulation national law act2009 schedule 193 196 1 196 2 hccc v karja 2012 nswnmt 11nursing midwifery board australia v fankhauser 2013 qcat 39pharmacy board australia v arulogun 2013 qcat 685psychology board australia v dall 2011 qcat 608appearances representation applicant mcinnes wilson lawyersrespondent g j rebetzke counsel instructed hallpayne lawyersthis matter heard determined paper pursuant tos 32of thequeensland civil administrative tribunal act2009 |
AIG Australia Ltd v Jaques (No 2) [2015] VSCA 3 (6 February 2015).txt | aig australia ltd v jaques 2 2015 vsca 3 6 february 2015 last updated 6 february 2015supreme court victoriacourt appeal apci 2014 0072aig australia limited acn 004 727 753 appellantvkim samuel jaquesrespondent judge warren cj neave jawhere held melbournedate hearing 16 december 2014date judgment 6 february 2015medium neutral citation aig australia ltd v jaques 2 2015 vsca 3judgment appealed 2014 vsc 269 cost cost appeal stay application indemnity cost discretion appeal court offer compromise made prior trial cost trial awarded indemnity basis commencement trial appeal dismissed cost awarded standard basis lower murray urban rural water corporation v di masi belbin marciano 2 2014 vsca 133applied appearance counselsolicitorsfor appellantmr e gisondalander rogers lawyersfor respondentmr blakemanmillens pty ltdwarren cjneave ja 1 16 december 2014 court appeal dismissed appellant appeal background proceeding set court reason judgment 1 time judgment delivered respondent made oral application appellant pay cost appeal application seeking stay trial judge order pending hearing determination appeal indemnity basis 2 time judgment delivered two member bench present party consented application decided two judge hearing submission party question cost court refused application indicated would publish reason later time 3 turn question nature cost awarded appellant respondent sought order cost indemnity basis exercise court discretion r 63 31 rule appellant resisted application indemnity cost contending required pay cost standard basis 4 respondent put two submission support application first relied fact judge trial awarded cost indemnity basis basis calderbank offer made prior trial calderbank offer expired 10 00 morning commencement trial offered settle proceeding term favourable appellant judgment respondent obtained basis offer judge awarded cost respondent indemnity basis time commencement trial 2 respondent submitted cost appeal also awarded indemnity basis ensure benefit obtained result trial judge order undermined additional cost incurred meeting appeal 5 secondly submitted degree unreasonableness appellant rejection offer compromise trial subsequent decision pursue matter appeal basis supported application relied affidavit material court suggested respondent difficulty funding defence associated proceeding federal court circumstance said make unreasonable appellant reject offer would otherwise 6 appellant submitted offer compromise trial insufficient warrant order cost appeal indemnity basis submitted far existence calderbank offer relevant appeal fall considered reference matter hazeldene chicken farm pty ltd v victorian workcover authority 2 3 matter considered apparent offer compromise engage ground appeal prospect success appeal indeed could since appeal commenced time decision whether accept reject offer called 7 appellant submitted even unsuccessful resisting order indemnity cost appeal indemnity cost awarded respect stay application application heard 24 july 2014 subsequently adjourned hearing appeal hearing appeal senior counsel respondent object granting stay time judgment appellant submitted circumstance court decline exercise discretion make special order respect application analysis8 court taken decision lower murray urban rural water corporation v di masi belbin marciano 2 4 court appeal held |
BARNDEN -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 161 (1 September 2014).txt | barnden v state western australia 2014 wasca 161 1 september 2014 last updated 1 september 2014jurisdiction supreme court western australiatitle court court appeal wa citation barnden v state western australia 2014 wasca 161coram martin cjbuss jamazza jaheard 13 june 2014delivered 1 september 2014file cacr 192 2013between kim ryan barndenappellantandthe state western australiarespondenton appeal jurisdiction district court western australiacoram goetze dcjfile ind esp 8 2013catchwords criminal law appeal sentence parity principle turn factslegislation criminal code wa 378 392road traffic act 1974 wa 49 1 49 3 60 1 result application extension time appeal dismissedappeal dismissedcategory brepresentation counsel appellant mr b hanburyrespondent m c longdensolicitors appellant evangel legalrespondent director public prosecution wa case referred judgment billing v state western australia 2 2008 wasca 11green v queen 2011 hca 49 2011 244 clr 462jardim v state western australia 2011 wasca 83lowe v queen 1984 hca 46 1984 154 clr 606postiglione v queen 1997 hca 26 1997 189 clr 295r v taudevin 1996 2 vr 4021martin cj application extension time within appeal dismissed reason given bus ja agree 2buss ja application extension time appeal sentence 3 5 august 2013 appellant convicted plea guilty district court goetze dcj eight count indictment two offence notice unders 32of thesentencing act 1995 wa 4 primary judge imposed individual sentence immediate imprisonment count indictment follows countoffencemaximum sentencesentence imposed 1 aggravated robbery 392code20 year imprisonment12 month cumulative 2 stealing 378code7 year imprisonment3 month concurrent 3 stealing 378code7 year imprisonment3 month concurrent 4 stealing 378code7 year imprisonment3 month concurrent 5 stealing 378code7 year imprisonment3 month concurrent 6 stealing 378code7 year imprisonment3 month concurrent 7 stealing 378code7 year imprisonment3 month concurrent 8 aggravated robbery 392code20 year imprisonment20 month cumulative5 honour also imposed individualterms immediate imprisonment charge thes 32notice follows chargeoffencemaximum sentencesentence imposed 1 reckless driving 60 1 road traffic act 1974 wa 9 month imprisonment120 pu finenot le 6 month mdldisq 4 month cumulative 6 month mdl suspension 2 authority drive 49 1 49 3 road traffic act 1974 wa 12 month imprisonment4 30 pu finenot 3 year mdldisq 3 month concurrent6 total effective sentence 3 year immediate imprisonment motor driver licence suspension 6 month parole eligibility order made application extension time7 application extension time supported affidavit appellant solicitor vasilios evangel sworn 28 september 2013 last date appellant file appeal notice 26 august 2013 filed 27 september 2013 15 december 2013 mazza ja referred application extension hearing appeal consider merit sole ground appeal deciding whether extension granted sole ground appeal8 sole ground appeal alleges primary judge erred application parity principle imposing upon appellant total sentence count 1 8 indictment imposed upon co offender 9 15 december 2013 mazza ja granted leave appeal ground fact circumstance offence subject indictment10 offence subject eight count indictment committed 23 september 2012 11 day appellant consumed substantial quantity alcohol three co offender brandon lee peach brody russell clark juvenile wac 12 afternoon 23 september 2012 appellant drove three co offender around esperance common objective find someone suitable rob 13 count 8 first offence committed aggravated robbery victim 30 year old foreign backpacker walking footpath near twilight beach fishing rod equipment appellant stopped motor vehicle driving parked near victim remained vehicle co offender surrounded victim demanded money co offender attempted conceal identity wearing hood sunglass victim refused comply demand punched back head one co offender force blow knocked ground victim sustained minor bruising head neck jumper torn victim bag contained fishing equipment car key multi tool later recovered stolen 14 aggravated robbery subject count 1 occurred later afternoon 23 september 2012 committing count 8 appellant co offender returned house esperance continued drinking alcohol appellant drove three co offender around esperance endeavouring identify someone suitable rob 5 25 pm appellant co offender saw victim 17 year old youth slim build driving esperance followed home victim 16 year old brother alight vehicle co offender surrounded demanded money asserted victim owed friend 100 would assaulted pay victim attempted retain wallet mobile telephone wrestled grasp co offender commission offence appellant remained driver seat vehicle co offender returned vehicle appellant drove away victim home victim wallet mobile telephone recovered 15 later day 6 30 pm 11 00 pm appellant co offender committed count 2 7 went caravan park number occasion stole camping equipment personal item six different victim holidaying caravan park stolen property recovered fact circumstance offence subject thes 32notice16 appellant committed offence subject thes 32notice 23 september 2012 offending subject indictment 17 appellant drove motor vehicle used commission count indictment along road castletown co offender relation count indictment passenger mentioned appellant co offender drinking alcohol throughout day appellant accelerated heavily wheel vehicle lost traction emitted smoke made loud screeching sound observed police activated emergency light vehicle attempted stop appellant refused stop accelerated appellant attempted evade police driving high speed making sharp right turn without indication braked heavily police vehicle collided rear vehicle appellant ran away vehicle rolled hill co offender inside vehicle stopped 50 hill attempt locate appellant unsuccessful next morning attended esperance police station made full admission time driving motor driver licence knowledge suspended non payment fine primary judge sentencing remarks18 primary judge recounted sentencing remark fact circumstance offending 19 honour also noted appellant personal circumstance antecedent 20 appellant born 8 september 1991 aged 21 time offending sentenced 21 appellant dysfunctional upbringing left school end year 9 result association anti social peer experimentation illicit substance however credit later completed year 10 appellant employed occasionally unskilled occupation relied primarily centrelink benefit income expressed interest working indigenous child remote community 22 appellant long history drug alcohol abuse commenced using methylamphetamine age 14 also used cannabis ecstasy heroin 23 14 july 2009 22 september 2009 5 february 2010 15 december 2011 appellant participated intensive residential rehabilitation programme teen challenge grace academy esperance appellant told m romana lee clinical psychologist prepared report dated 16 july 2013 primary judge interval two period horrible confusing time commenced ingesting oxycontin relapsed amphetamine use recently used alcohol excess avoid abuse illicit drug 24 m lee offered following comment report appellant offending although may appear appellant lack ability transfer learning two rehabilitation stint teen challenge likely lack emotional maturity need acceptance poor sense self lack support absence pro social activity positive peer well limited emotional coping make difficult appellant cope daily life without form substance use self medicate given lack constructive activity boredom lack purpose life led hanging around antisocial peer group drinking alcohol around time offence appellant would benefit exploring opportunity traineeship employment training constructively occupied opportunity gainfully employed would increase limited protective factor additional self improvement activity gaining valid motor driver licence may also increase protective factor well increasing chance gainfully employed andgiven lack support family independent housing appellant would benefit assistance secure supportive accommodation stable living condition 25 appellant suffers anxiety depression immature year termination recent relationship young woman caused grief loss requires psychological treatment 26 primary judge allowed appellant sentencing discount 25 9aa thesentencing actfor plea guilty generous discount guilty plea fast track system first pleaded guilty magistrate court 11 june 2013 eight half month committing offence 27 appellant made substantial admission relation offending video recorded interview police day offence committed 28 honour said appellant shown remorse offending also noted appellant youthful made effort towards rehabilitation attending drug arm january june 2013 29 appellant prior criminal record previous conviction adult comprise assault occasioning bodily harm possessing thing applying graffiti breach bail undertaking offence punished fine 30 primary judge found appellant high risk reoffending 31 author pre sentence report said appellant failed engage max employment psychologist failed attend two scheduled interview connection preparation assessment report author view indicated fluctuating motivation appellant dealing personal issue 32 appellant co offender mr peach mr clark wac sentenced appellant primary judge noted sentence received personal circumstance antecedent referred parity principle 33 honour decided immediate imprisonment sentencing option open circumstance emphasised seriousness offending need personal general deterrence sentencing mr peach34 6 february 2013 scott dcj sentenced mr peach 35 honour imposed individual sentence immediate imprisonment follows count 1 16 month b count 2 7 3 month c count 8 20 month 36 scott dcj ordered sentence count 1 8 served cumulatively sentence count 2 7 served concurrently sentence count 1 8 total effective sentence therefore 3 year immediate imprisonment parole eligibility order made 37 mr peach entered fast track plea guilty honour allowed sentencing discount 25 9aa thesentencing actfor guilty plea 38 mr peach born 4 july 1993 aged 19 time offending sentenced 39 honour recounted fact circumstance offending count 8 honour found one co offender mr peach punched victim back head 40 scott dcj noted mr peach positive upbringing b one prior serious relationship commenced 16 c mr peach suffered low grade depression serious issue alcohol abuse two month period offending drinking every day sometimes early morning associating negative peer group e mr peach left school year 11 employed time time planned return work fishing industry 41 mr peach prior criminal record adult two previous conviction unlawful assault occasioning bodily harm circumstance aggravation one conviction stealing 20 may 2012 mr peach assaulted partner intoxicated september 2012 assaulted person made disparaging reference facebook three previous conviction adult punished fine juvenile mr peach convicted 28 april 2011 one count aggravated robbery committed 23 october 2010 sentenced 4 month detention mr peach sentenced scott dcj offence expunged unders 189 2 theyoung offender act 1994 wa 42 psychological report indicated mr peach moderate risk reoffending abuse reliance alcohol particular concern 43 scott dcj accepted mr peach remorseful offending insight seriousness occurred impact victim sentencing mr clark44 6 february 2013 scott dcj also sentenced mr clark 45 honour imposed individual sentence immediate imprisonment follows count 1 12 month b count 2 7 3 month c count 8 20 month 46 scott dcj ordered sentence count 1 8 served cumulatively sentence count 2 7 served concurrently sentence count 1 8 honour reduced individual sentence count 1 16 month 12 month application totality principle total effective sentence therefore 2 year 8 month immediate imprisonment parole eligibility order made 47 mr clark entered fast track plea guilty honour allowed sentencing discount 25 9aa thesentencing actfor guilty plea 48 mr clark born 10 april 1989 aged 23 time offending sentenced 49 honour recounted fact circumstance offending count 8 honour make finding mr clark punched victim back head 50 scott dcj noted although parent separated 15 16 doubt affected nothing mr clark upbringing relevant offending b commenced using cannabis age 16 alcohol main problem c mr clark left school completing year 11 since irregular employment told author pre sentence report offending question attempted self harm two separate occasion referred esperance community mental health seen youth counsellor 10 19 27 september 2012 4 october 2012 scheduled appointment visiting psychiatrist community drug service team however unable keep appointment remanded custody connection relevant offence 51 mr clark prior criminal record adult previous conviction two offence stealing one offence unlawful damage trespass one offence breaching community based order number offence involving traffic infringement possession prohibited drug previous offending punished fine community based order 52 scott dcj accepted mr clark plea guilty offence question indicated remorse appeared insight offending also appeared minimise involvement 53 honour differentiated mr peach mr clark sentencing outcome mr peach prior conviction involved violence honour view played similar role commission relevant offence sentencing wac54 unnecessary refer sentence imposed wac personal circumstance antecedent hearing appeal counsel appellant expressly disclaimed complaint parity appellant wac appeal t 3 parity principle55 object parity principle ensure appropriate consistency sentencing co offender critical question whether disparity lack disparity sentencing outcome capable giving rise legitimate justifiable sense grievance give appearance mind objective observer justice done seelowe v queen 1984 hca 46 1984 154 clr 606 610 gibbs cj 613 mason j 623 624 dawson j postiglione v queen 1997 hca 26 1997 189 clr 295 301 302 dawson gaudron jj r v taudevin 1996 2 vr 402 404 callaway ja winneke p agreeing applicable test objective subjective application effect relevant sentencing principle must taken account determining whether legitimate justifiable sense grievance seejardim v state western australia 2011 wasca 83 12 13 mclure p pullin ja agreeing 56 appellate court may interfere ground marked unjustifiable disparity ground absence marked justifiable disparity sentencing judge exercise sentencing discretion even though sentence question viewed isolation would necessarily regarded manifestly excessive otherwise open challenge parity sentencing require sentencing judge lenient shock public conscience imposing sentence entirely disproportionate offence question seebilling v state western australia 2 2008 wasca 11 11 12 steytler p mclure ja agreeing 57 recently ingreen v queen 2011 hca 49 2011 244 clr 462 french cj crennan kiefel jj said parity principle based upon norm equality law 28 b equal justice according law requires far law permit like case treated alike 28 c equal justice also requires law permit differential treatment person according difference relevant scope purpose subject matter law 28 58 honour also said appellate court refuse intervene basis parity principle disparity justified difference co offender example difference relation age background criminal history general character part co offender played relevant criminal conduct enterprise 31 59 often said highly desirable co offender sentenced sentencing judge alternatively practicable second sentencing judge fully informed sentence imposed first sentencing judge seelowe 617 622 postiglione 320 60 present case apparent appellant sentenced judge sentenced mr peach mr clark however apparent primary judge fully informed sentence imposed mr peach mr clark appellant submissions61 counsel appellant submitted appellant deserving lesser sentence mr peach mr clark count 1 count 8 total effective sentence following reason appellant remained motor vehicle count 1 8 committed b use actual violence victim count 8 c appellant wish rob people suggested co offender steal caravan park younger mr clark e appellant previously sentenced term imprisonment f personal circumstance antecedent favourable mr peach mr clark merit ground appeal62 persuaded primary judge erred alleged appellant 63 although appellant remained motor vehicle mr peach mr clark wac made demand threatened victim count 1 8 used actual violence victim count 8 appellant role getaway driver central commission offence 64 although appellant may initiated offending directly involved confronting victim level culpability materially le mr peach mr clark appellant facilitated offending driving co offender identified victim stopping vehicle needed waiting offence committed ensuring offender able leave scene quickly threatened actual violence used co offender aggravated robbery probable consequence prosecution unlawful purpose engaged appellant co offender counsel appellant accepted appellant understood would violence degree inflicted victim facilitate stealing money property appeal t 4 65 count 1 8 involved premeditation planning offence committed distance place appellant co offender resided vehicle essential part commission offence 66 mentioned 25 discount given primary judge appellant 9aa thesentencing actwas generous unlike mr peach mr clark appellant enter fast track plea guilty 67 age difference appellant mr peach mr clark significant none previously sentenced adult term imprisonment 68 appellant found high risk reoffending whereas mr peach assessed moderate risk reoffending mr peach prior criminal record worse appellant mr clark appellant mr peach prior offending included violence whereas mr clark previous offence involve violence otherwise personal circumstance andantecedents appellant mr peach mr clark significantly different 69 appellant unlike mr peach mr clark sentenced additional offending namely serious driving offence listed thes 32notice appellant reckless driving consumed alcohol endangered safety passenger police officer demonstrated wanton disregard law authority necessary sentence imprisonment reckless driving charge made cumulative upon sentence count 1 8 order properly mark seriousness appellant overall offending 70 satisfied examining weighing relevant fact circumstance relevant sentencing factor pertaining appellant mr peach mr clark absence disparity appellant perspective sentencing outcome appellant one hand mr peach mr clark infringe parity principle principle equal justice absence disparity appellant perspective sentencing outcome marked unjustified give rise legitimate justifiable sense grievance appellant part give appearance mind objective observer justice done appellant mr peach mr clark generally appellant deserving materially lesser sentence count 1 count 8 materially lesser total effective sentence mr peach mr clark conclusion71 ground appeal without merit would therefore refuse grant extension time appeal application dismissed 72mazza ja agree bus ja |
SZSRM v Minister for Immigration and Border Protection [2014] FCA 221 (25 February 2014).txt | szsrm v minister immigration border protection 2014 fca 221 25 february 2014 last updated 14 march 2014federal court australiaszsrm v minister immigration border protection 2014 fca 221citation szsrm v minister immigration border protection 2014 fca 221appeal szsrm v minister immigration 2013 fcca 1613parties szsrm v minister immigration border protection refugee review tribunalfile number nsd 2129 2013judge rares jdate judgment 25 february 2014legislation federal circuit court rules2001 cth migration act 1958 cth case cited bienstein v bienstein 2003 hca 7 2003 195 alr 225appliedjackamarra v krakouer 1998 195 clr 516appliedr vsecretary state home department ex parte mehta 1975 1 wlr 1087 appliedre luck 2003 hca 70 2003 203 alr 1referred toszsrm v minister immigration 2013 fcca 1340referred toszsrm v minister immigration 2013 fcca 1613referred todate hearing 25 february 2014place sydneydivision general divisioncategory catchwordsnumber paragraph 22counsel appellant appellant appeared personsolicitor first respondent australian government solicitorin federal court australianew south wale district registrygeneral divisionnsd 2129 2013on appeal federal circuit court australiabetween szsrmappellantand minister immigration border protectionfirst respondentrefugee review tribunalsecond respondentjudge rares jdate order 25 february 2014where made sydneythe court order appeal dismissed incompetent appellant pay first respondent cost note entry order dealt rule 39 32 thefederal court rule 2011 federal court australianew south wale district registrygeneral divisionnsd 2129 2013on appeal federal circuit court australiabetween szsrmappellantand minister immigration border protectionfirst respondentrefugee review tribunalsecond respondentjudge rares jdate 25 february 2014place sydneyreasons judgment revised transcript proceeding commenced 16 october 2013 appellant filed notice appeal court decision federal circuit court given 25 september 2013 szsrm v minister immigration 2013 fcca 1613 however decision dismissed appellant application case sought proceeding federal circuit court opened failed appear original hearing application constitutional writ relief decision refugee review tribunal given 21 february 2013 earlier 30 august 2013 honour dismissed application r 13 03c 1 c thefederal circuit court rules2001 cth appellant failed appear hearing application szsrm v minister immigration 2013 fcca 1340 appellant filed application case basis sick 30 august 2013 day original hearing time appellant filed notice appeal also filed affidavit dated 16 october 2013 sought extension time basis arguable case tribunal decisionthe appellant citizen republic india tribunal noted spoke understood english well completed master degree first class honour information system university new england appellant made variety claim based political activity student india claimed reason activity member congress party student federation associated feared persecution hand member bjp rival political party organisation claimed brother family member harassed visited received threat concerning claimed father borrowed considerable sum money finance education australia money lender also source threat family debt interest due repaid tribunal found prior filing application protection visa appellant spent 21 000 pursuing attempt first obtain sufficient qualification english support skilled visa application secondly rejection application reviewed migration review tribunal thereafter federal magistrate court court high court noted amount appellant invested endeavour exceeded amount claimed owing money lender india repaid tribunal also noted considerable delay almost seven year arrival australia april 2005 march 2012 appellant made application protection visa tribunal accept appellant credible witness considered evidence neither reliable truthful accordingly accept claim past event india fear would suffer persecution convention reason return india reasonably foreseeable future found basis appellant claim fear persecution satisfied returned india real chance harmed political opinion imputed political opinion convention based reason also found would real chance would risk persecution convention based reason return india foreseeable future would subjected significant harm country tribunal concluded appellant eligible granted protection visa satisfy complementary protection criterion ins 36 2 aa themigration act 1958 cth therefore affirmed minister delegate decision grant protection visa proceeding federal circuit courtas mentioned trial judge dismissed application review seeking constitutional relief tribunal decision 30 august 2013 25 september 2013 considered whether reinstate matter based application case honour found medical certificate appellant relied excusing non attendance unsatisfactory explanation making attempt contact court indicate difficulty trial judge found appellant established condition suffered prevented able travel court participate effectively hearing 30 august 2013 nonetheless honour went consider whether appellant claim relief possible merit determined appellant amended application review federal circuit court raised three ground first two repeated ground appeal court namely tribunal acted without jurisdiction excess jurisdiction failing take account relevant consideration taking account irrelevant one andhad made jurisdictional error based assumption probability failed apply correct test persecution accordance act particular first ground simply boilerplate particular identified obligation tribunal act consider whether appellant met criterion grant protection visa without particularising tribunal either failed take account relevant consideration took account irrelevant one honour noted sought appellant clarify asserted tribunal failed consider able explain clarify assertion trial judge concluded substance ground 1 amended application agree honour reason gave second ground particularised assertion tribunal minister ignored rule procedural fairness made decision without giving consideration danger appellant claimed fear money lender others failed apply correctly test whether appellant well founded fear persecution convention reason particular asserted tribunal formed opinion limited information possible harm ignored independent information misconstrued fact honour found nothing material including tribunal decision record appellant submission support even arguable claim jurisdictional error basis alleged found evidence suggest tribunal misunderstood misapplied criterion grant protection visa complementary protection visa accordingly held substance second ground honour noted submission minister solicitor suggested third possible ground may included way particular second ground framed namely tribunal formed determinative opinion limited information honour said contention effectively attempt seek merit review judicial review proceeding trial judge found correctly permissible rejected argument noted also correctly appellant provided particular information tribunal allegedly ignored primary judge also found appellant given particularisation identification assertion tribunal misconstrued fact concluded correctly opinion assertion raised arguable case jurisdictional error honour also noted affidavit appellant alleged tribunal become biased due misunderstanding evidence honour held nothing material support assertion actual apprehended bias tribunal honour concluded regard matter including appellant explanation non attendance previous occasion satisfied interest justice set aside earlier interlocutory order dismissing proceeding default appearance accordingly honour dismissed application case appealthis morning appellant submitted confident would win appeal needed lawyer argued told tribunal sent back india would killed listened satisfied notice appeal incompetent decision made federal circuit court 30 august 2013 25 september 2013 interlocutory finally decide right party bienstein v bienstein 2003 hca 7 2003 195 alr 225at 230 25 per mchugh kirby callinan jj see luck 2003 hca 70 2003 203 alr 1at 2 4 4 9 per mchugh acj gummow heydon jj first order made following procedural default appellant attended court case heard determined honour merit second decision given interlocutory application made appellant earlier interlocutory order set aside could hearing merit minister properly contended notice appeal treated application leave appeal extension time considering whether grant extension time person file appeal court must bear mind respondent application vested right retain judgment subject proposed appeal accordingly court applies approach taken lord denning mr inr vsecretary state home department ex parte mehta 1975 1 wlr 1087 1091 applied injackamarra v krakouer 1998 195 clr 516at 519 520 3 4 per brennan cj mchugh j 540 541 66 4 per kirby j namely often like know outline case appears case strong merit ought heard fairness party may think proper case allowed proceed extend time accordingly appears flimsy case weak merit may extend time never go much detail merit like know something case deciding whether extend time appellant could forgiven confused distinction interlocutory final order federal circuit court dealing case notice appeal filed 21st day second decision would therefore time appeal right however reason given able discern arguable case appellant could mount either decision honour court suggest jurisdictional error affected decision tribunal heart appellant substantive complaint tribunal simply believe story matter parliament left entirely tribunal considered decision tribunal purpose satisfying unrepresented appellant arguable claim based ground notice appeal court argued honour otherwise comfortably satisfied arguable case conclusionfor reason given appeal must dismissed incompetent certify preceding twenty two 22 numbered paragraph true copy reason judgment herein honourable justice rares associate dated 13 march 2014 |
Brad James Winmar v Callacabardee Aboriginal Coroporation Inc. (ABN 38664 495 651) and Department of Housing and Works - Government of WA [2004] WAIRComm 13281 (22 October 2004).txt | brad james winmar v callacabardee aboriginal coroporation inc abn 38664 495 651 department housing work government wa 2004 waircomm 13281 22 october 2004 last updated 9 july 2007western australian industrial relation commissionpartiesbrad james winmarapplicant v callacabardee aboriginal coroporation inc department housing worksrespondentcoramsenior commissioner r beechdatethursday 11 november 2004file sappl 252 2003citation 2004 wairc 13281resultapplication dismissed want prosecutionrepresentationapplicantno appearancerespondentsmr r andretich counsel behalf department housing worksno appearance behalf callacabardee aboriginal corporation incorderhaving heard mr r andretich counsel behalf department housing work appearance behalf applicant appearance behalf callacabardee aboriginal corporation inc commission pursuant power conferred theindustrial relation act 1979hereby order application dismissed want prosecution senior commissioner r beech |
Williams and Minister for Immigration and Citizenship [2013] AATA 16 (16 January 2013).txt | williams minister immigration citizenship 2013 aata 16 16 january 2013 last updated 16 january 2013 2013 aata 16 ul none list style none divisiongeneral administrative divisionfile number2012 5004remarouna williamsapplicantandminister immigration citizenshiprespondentdecisiontribunalg friedman senior memberdate16 january 2013placemelbournethe tribunal affirms decision review sgd g friedman senior membermigration new zealand citizen cancellation special category temporary visa conviction causing serious injury offence character test exercise discretionmigration act 1958ss 499 1 499 2a 501 2 501 6 501 7 direction 55 visa refusal cancellation unders 501minister immigration local government ethnic affair v batey 1993 fca 75 1993 112 alr 198re stone minister immigration ethnic affair 1981 3 aln 81reasons decisiong friedman senior member16 january 2013marouna williams citizen new zealand born 1989 arrived australia family 11 december 1998 class ty subclass 444 special category temporary visa spending early childhood cook island living australia since 15 october 2012 delegate respondent found mr williams pas character test due criminal record australia decided exercise discretion cancel visa mr williams seek review decision legislative backgroundunders 501 2 themigration act 1958 act minister may cancel visa granted person ifthe minister reasonably suspect person pas character test 501 2 andthe person satisfy minister person pass character test 501 2 b character test set in 501 6 provides person pas character test one number ground in 501 6 met section 501 6 act provides person substantial criminal record defined subsection 7 section 501 7 c provides person asubstantial criminal recordifthe person sentenced term imprisonment 12 month unders 499 1 act minister may give direction person body performing function exercising power act accordance withs 499 2a person body must comply 25 july 2012 minister exercising power unders 499 1 act issueddirection 55 visa refusal cancellation unders 501 direction55 came operation 1 september 2012 direction provides guidance decision maker making decision refuse cancel visa unders 501of act including exercise discretion decide whether non citizen permitted enter remain australia circumstance person pas character test paragraph 7 direction 55 set exercise discretion paragraph 8 requires decision maker take account primary consideration relevant individual case paragraph 8 4 direction 55 state primary consideration generally given greater weight consideration issuesthe issue tribunal mr williams pas character test primary consideration consideration apply mr williams discretion cancel visa exercised mr williams pas character test mr williams following criminal history courtdateoffencecourt resultheidelberg magistrate court14 december 2011drive speed dangerousimprisonment 6 month concurrent licence disqualified 6 month refuse undergo breath testimprisonment 4 month concurrent licence disqualified 4 year refuse remain station breath testdrive whilst exceeding prescribed concentration alcoholimprisonment 4 month licence disqualified 20 month theft motor vehicleimprisonment 4 month concurrent burglaryimprisonment 3 month concurrent theftimprisonment 2 month concurrent breach community based order imposed 01 december 2008breach proved imprisonment 2 month concurrent drive whilst disqualifiedon charge imprisonment 1 month concurrent fail answer bail grantedbreach community based order imposed 01 december 2008breach proven imprisonment 1 month concurrent drive whilst disqualifiedon charge imprisonment 14 day concurrent unlicensed driving 2 charge failure comply community based orderproved penalty melbourne county court16 august 2011intentionally cause serious injuryimprisonment 36 month aggravated burglary person presentimprisonment 15 month 12 month sentence served concurrently recklessly cause serious injuryimprisonment 12 month 9 month sentence served concurrently common law assaultimprisonment 3 month 2 month served concurrently theftimprisonment 1 month concurrent heidelberg magistrate court01 december 2008exceed prescribed concentration 3 hour breath drive vehicleon charge without conviction community based order 12 month perform 50 hour licence disqualified 13 month drive whilst disqualifiedheidelberg child court25 january 2008possess liquor 18 yearson charge without conviction fined 300 consume liquor 18 yearsresist policemelbourne child court05 march 2007intentionally cause injuryon charge without conviction probation order 6 month state false name requestedmelbourne child court27 april 2006affray 2 charge charge convicted detention youth training centre 6 month intentionally cause serious injury 2 charge recklessly cause serious injurymelbourne child court07 february 2005recklessly cause serious injurywithout conviction adjourned bond 250 good behaviour 12 month pay 250 court fund heidelberg child court25 june 2004theft motor vehicle 2 charge charge without conviction probation order 4 month pay compensation 250 unlicensed driving 4 charge fail give way stop sign linefail render assistance accidentfail give name address property damagedtheft motor vehicleburglarytheftmr williams currently immigration detention served sentence imprisonment conceded tribunal find pas character test primary secondary consideration apply mr williams assessment primary considerationsthe four primary consideration set paragraph 9 1 direction 55 protection australian community criminal serious conduct b strength duration nature person tie australia c best interest minor child australia whether australia international non refoulement obligation person protection australian community criminal serious conductparagraph 9 1 1 direction 55 state considering protection australian community decision maker regard principle government committed protecting australian community harm result criminal activity serious conduct non citizen remaining australia privilege australia confers non citizen expectation law abiding respect important institution cause threaten harm individual australian community paragraph 9 1 2 state decision maker also give consideration nature seriousness person conduct date andb risk australian community person commit offence engage serious conduct nature seriousness mr williams conductparagraph 9 1 1 1 direction 55 list number factor must taken account considering nature seriousness criminal offending conduct date principle without limiting range offence may considered serious violent sexual crime viewed seriously sentencing remark county court victoria 16 august 2011 judge noted october 2008 mr williams older brother two cousin drinking mr williams punched one victim car window apparent reason violently assaulted another stranger street leaving victim terrified seriously injured also entered house belonging another victim intention stealing item house judge described offence serious particular intentionally causing serious injury view serious example judge said one assault absolutely gratuitous totally defenceless person judge referred prior conviction involving violence causing serious injury resulting sentence six month youth training centre judge took account plea guilty charge noted mr williams reduced alcohol consumption stable employment record offended three year although fact mr williams committed offence april 2010 mr williams told tribunal offence occurred intoxicated admitted injury inflicted serious two victim lost consciousness kicked one victim lying ground breaking person jaw three place judge remark made mr williams appeared heidelberg magistrate court 14 december 2011 number charge including traffic driving matter theft burglary breach community based order failure answer bail sentenced 27 month imprisonment served concurrently sentence imposed county court released prison 12 november 2012 placed immigration detention visa cancelled b principle crime committed vulnerable member community minor elderly disabled government representative official due position hold performance duty serious serious mr williams crime committed vulnerable member community offence unprovoked attack innocent member community c person australia crime committed person immigration detention escape immigration detention person escaped immigration detention person taken immigration detention serious offence section 197a act mr williams crime committed placed immigration detention principle conduct form basis finding person pas character test s501 6 b good character s501 6 c considered serious conduct mr williams committing crime serious e sentence imposed court crime crime respect serious offence mr williams sentenced 16 august 2011 imprisonment 43 month minimum 15 month f frequency person offending whether trend increasing seriousness mr williams commenced offending age 14 year five year arrival australia appeared court following four year range charge including violence driving offence theft g cumulative effect repeated offending mr williams latest court appearance december 2011 continued pattern driving offence breach previous order resulted term imprisonment h whether person provided false misleading information department including disclosing prior criminal offending material suggest mr williams provided false misleading information department whether person offended since formally warned since otherwise made aware writing consequence offending term person migration status noting absence warning could considered person favour record mr williams reoffended receiving formal warning immigration authority j offence conduct committed another country whether offence conduct classified offence australia mr williams offence committed australia conclusion regarding seriousness offencesthe tribunal concludes offence serious b risk australian community mr williams commit offence engage serious conductparagraph 9 1 2 direction 55 state 1 considering whether person represents unacceptable risk harm individual group institution australian community decision maker regard principle australian community tolerance risk future harm becomes lower seriousness potential harm increase conduct harm would caused repeated serious risk may repeated may unacceptable making assessment decision maker must regard cumulatively nature harm individual australian community person engage criminal serious conduct taking account nature prior conviction offence involving violence traffic matter would significant harm individual australian community mr williams engage criminal serious conduct b likelihood person engaging criminal serious conduct taking account information evidence risk person reoffending andii evidence rehabilitation achieved time decision giving weight time spent community since recent offence noting decision delayed order rehabilitative course undertaken 16 august 2011 sentencing judge referred report forensic psychologist outlined history mr williams family originating cook island parent returned new zealand time offending led serious charge sentencing remark judge noted mr williams plea guilty accompanied appropriate remorse mr williams understood wrong judge also stated mr williams made significant attempt turn life around good work ethic report correction victoria dated 26 august 2011 using victorian intervention screening assessment tool visat concluded mr williams high general risk offending recommended participate integration program address negative social environment assessed participation drug alcohol treatment program assessed suitability participate offending behaviour program reduce risk offending report department justice dated 23 march 2012 following mr williams completion theviolence intervention programconcluded considered fall themoderate riskcategory offending higher probability male committing violent offence report recommended mr williams undertake themoderate intensity violence intervention programor themaking choice program men mr williams completed themaking choice programfor menand completion report dated 7 june 2012 noted initially passive participant due anxiety low self esteem became confident engaging attended 40 group based session showed willingness work peer manage program commitment report concluded mr williams need address number variable manage risk offending include work ethic contact criminal peer substance abuse violence cycle recommendation included reinforcement avoidance high risk situation monitoring peer association particular avoidance heavy drinking family member encouragement become assertive interpersonal conflict mr williams completed semi intensive drug alcohol treatment program 3 october 2012 visat report dated 15 october 2012 shortly mr williams release parole assessed high risk offending specific risk involvement criminal associate violence substance use although report recognised mr williams displayed insight violent offending concern indicated potential future contact co offender mr williams spent time community since recent incarceration told tribunal obtained full time employment wish chance make previous wrongdoing acknowledged past young naive taken advantage opportunity australia offer admitted take full responsibility action completed number program prison deal offending behaviour mr williams explained offence subject court appearance 14 december 2011 committed prior appearance county court 16 august 2011 occurred april 2010 drinking borrowed friend car reported stolen sentence way sentencing earlier matter placed community based order agreed also pleaded guilty careless driving unlicensed driving refusing remain police station breath test emphasised major offence occurred october 2008 time sentencing august 2011 lived community held full time employment concreter also noted sentencing judge reduced sentence early plea guilty accompanied remorse regret plea guilty assistance crown case delay nearly three year sentencing removed possibility youth justice centre detention order judge recognized reduced level drinking taken step rehabilitate minimum sentence imposed significantly le would otherwise case mr williams stated risk offending low said drug free longer abuse alcohol commit offence misconduct term imprisonment completed several course custody offence committed teenager 23 year age gained insight offending behaviour attendance contribution course favourable maintained close relationship partner strong network family support within australian community sound employment prospect relation assessment written incarceration mr williams maintained visat report dated 26 august 2011 based assessment time offending opposed time release detention emphasised report noted willingness participate education drug alcohol program violence program reduced ceased use cannabis alcohol pointed writer report access judge sentencing remark compiling report relation visat report dated 15 october 2012 said assessment acknowledged remorse previous offending recommendation attend moderate intensityviolence intervention programrather high intensity program m g taruia told tribunal known mr williams ten year partner since february 2010 explained mr williams living together imprisonment made plan save purchase house m taruia described mr williams extremely supportive emotionally financially said supportive assisted rehabilitation m taruia stated mr williams expressed many occasion remorse criminal conduct regret harm caused said observed transformation foolish youth amazing mature passionate man want nothing great thing life give back others added time spent way given new perspective life lie ahead said found place live mr williams likely obtain employment said deserves remain australia would wish anywhere else cross examination m taruia agreed april 2010 mr williams committed offence living afterwards separated briefly demonstrate displeasure stated mr williams learnt lesson longer abuse alcohol offend mr j williams told tribunal mr williams brother family member living melbourne said mr williams matured hard working family oriented man remorseful learnt past mistake said mr williams would welcomed back concreting business worked previously cross examination agreed co offender serious offence committed october 2008 sentenced 13 month imprisonment wholly suspended 18 month mr j williams maintained longer abuse alcohol committed offence good role model mr williams reverend williams told tribunal mr williams father minister cook island christian church said wife posted parish hastings new zealand 2007 intend return australia completion term 2015 rev williams stated mr williams together unmarried child left family home posting new zealand commenced difficult mr williams contributed criminal behaviour however indicated circumstance changed mr williams unlikely offend mr williams stated mr williams older brother described mr williams honest loyal hardworking part trait served good sometimes loyalty honesty around landed wrong side law said mr williams committed crime boy man mind set successful lawful life letter support also received sister sister law inre stone minister immigration ethnic affair 1981 3 aln 81davies j held even risk recidivism high strongly support deportation visa cancellation recidivism occur may cause great harm inminister immigration local government ethnic affair v batey 1993 fca 75 1993 112 alr 198the full court federal court held real risk recidivism one far fetched fanciful include low minimal risk tribunal take account mr williams expressed remorse criminal activity undertaken course prison stated unlikely offend mature adult learnt mistake partner family member also given assurance offend however pattern offending 2004 2010 including numerous breach court order consequence offending made clear yet continued offend despite family support stable employment tribunal also take account finding several objective report including visat assessment one shortly release assessed risk offending moderate high specific risk identified including contact criminal peer tribunal take account apart m taruia family member living melbourne mr j williams considers role model mr williams co offender serious offence one person identified several assessment acriminal peerwith mr williams refrain contact basis material tribunal find mr williams risk offending least moderate together finding offence nature conduct extremely serious lead tribunal conclude first primary consideration weighs strongly favour cancellation visa b strength duration nature person tie australia paragraph 9 2 1 direction 55 state decision maker must regard following long person resided australia including whether person arrived young child noting le weight given person began offending soon arriving australia andii weight given time person spent contributing positively australian communitymr williams born new zealand age two moved parent cook island arrived australia age nine year resided since commenced offending four year arrival continued offend 2010 b strength duration nature family social employment link australian citizen australian permanent resident people indefinite right remain australia m taruia australian citizen mr william parent australian citizen currently live new zealand youngest sibling four sibling live australia apart mr j williams located queensland western australia rural victoria extended family member live australia mr jackson told tribunal known mr williams worked two year foreman concrete construction company said mr williams asset company shown positive work ethic potential lead team mr jackson said mr williams would welcome return company mr shehata stated known mr williams 12 year described loving caring person developed young man high integrity respectful honest caring person m rexter stated family regard mr williams family extended family said mr williams grown nice young man always respectful courteous considerate willing help tribunal take account mr williams spent part childhood formative year country began offending four year arriving australia largely full time employment since 2004 machine operator spray painting apprentice concreter highly regarded recent employer tribunal concludes mr williams close tie australia lived 13 year partner almost three year regular employment plus presence four sibling extended family australia circumstance primary consideration weighs cancellation visa c best interest minor child australiamr williams told tribunal minor child australia whose best interest significantly affected cancellation visa youngest sibling australian citizen minor although life new zealand present tribunal find primary consideration weighs neither cancellation visa whether australia international non refoulement obligation person paragraph 9 4 1 direction 55 state case claim may give rise international non refoulement obligation relating returning person may face risk type set various international treaty raised person clear fact case must given consideration person australia mr williams make claim require assessment relation australia international non refoulement obligation claim apparent material available tribunal consequently tribunal find primary consideration weighs neither cancellation visa assessment considerationsparagraph 10 1 direction 55 provides list non exhaustive consideration must taken account relevant effect cancellation person visa person immediate family australia family member australian citizen permanent resident people right remain australia indefinitely m taruia told tribunal stable employment accommodation family friend australia spent life said cancellation visa would devastating simply cannot move another country leave behind would absolutely traumatize deal without marouna australia would impossible rev williams stated wife would unable return australia conclusion posting mr williams visa cancelled would required assist establish new life new zealand would difficulty finding employment mr williams suitable accommodation posting end tribunal concludes cancellation mr williams visa would adverse effect partner parent sibling extended family living australia b impact australian business intereststhere appear impact australian business interest cancellation mr williams visa c impact decision cancel visa member australian community including victim person criminal behaviour family member victim victim information available person considered visa cancellation afforded procedural fairness decision cancel mr williams visa may adverse impact member australian community including victim criminal behaviour family member victim might fear mr williams would offend extent impediment person may face removed australia home country establishing maintaining basic living standard context generally available citizen country taking account person age health ii whether substantial language cultural barrier andiii social medical economic support available country mr williams told tribunal would face extreme impediment removed new zealand stated option move back new zealand force grace move neither u employment home high prospect finding employment contact rev williams stated despite assistance wife would able provide mr williams know new zealand aged two year left said mr williams would face difficulty finding employment hastings work seasonal tribunal take account mr williams lived new zealand adult limited education would face challenge beginning new life country partner stated would locate new zealand however young person apparent good health sound employment record prospect allow maintain basic living standard new zealand similar culture society australia would serious language cultural barrier facing return basic social medical economic support available new zealand citizen would apply parent live new zealand present indicated would assist accommodation finding employment balance tribunal find mr williams would face significant impediment establishing new zealand conclusion regarding considerationsalthough parent live new zealand would able establish find employment mr williams sibling partner australia would suffer hardship removed tribunal concludes consideration weigh cancellation visa discretion cancel visa exercised tribunal concluded first primary consideration concerning protection australian community weighs strongly favour cancellation second primary consideration concerning mr williams tie australia weighs cancellation third fourth primary consideration practical application tribunal concluded primary consideration weigh cancellation tribunal take account generally consideration given le weight given primary consideration considering circumstance primary consideration consideration tribunal find particularly respect seriousness offence nature mr williams offending history risk offending factor favour cancellation visa outweigh factor cancellation discretion cancel visa exercised decisionthe tribunal affirms decision review certify preceding 70 seventy paragraph true copy reason decision g friedman senior member sgd associatedated 16 january 2013date hearing14 january 2013counsel applicantmr g hughansolicitors applicantcarina ford immigration lawyersadvocate respondentmr brownsolicitors respondentaustralian government solicitor |
R v SHULTZ, Allen Edwin [2016] NSWDC 392 (8 September 2016).txt | r v shultz allen edwin 2016 nswdc 392 8 september 2016 last updated 22 february 2017district courtnew south walescase name r v shultz allen edwinmedium neutral citation 2016 nswdc 392hearing date 8 september 2016decision date 8 september 2016jurisdiction criminalbefore norrish dcjdecision tendancy evidence inadmissiblecatchwords criminal law admissibility complaint evidence tendancylegislation cited evidence act nsw 1995cases cited dao v r 2011 nswcca 63dsj v r n v r 2012 nswcca 9gardiner v queen 2006 nswcca 190hughes v r 2015 nswcca 330imm v r 2016 hca 14pfennig v r 1995 hca 7r v fletcher 2005 nswcca 338r v ford 2009 nswcca 306r v lockyer 1996 89 crim r 457r v shamouil 2006 nswcca 112sokolowskyj v r 2014 nswcca 55xy v r 2013 nswcca 121category principal judgmentparties regina crown allen edwin shultz offender representation counsel mr cooley crown mr jankowski defendant file number 2014 00368026publication restriction publication information identifies likely lead identification complainant proceeding judgmenthis honour crown framed indictment relating accused allen edwin schultz alleging six count indecent assault upon child age 16 year count 1 2 concerned complainant refer ak initial may later need changing disguise true identity matter discus party four count relate complainant gc using initial today yesterday initial referred course submission offence relating ak well offence relating gc committed place called cobark apparently location hamlet vicinity gloucester region mid north coast hunter valley quite sure regional description offence committed circumstance complainant attending type horse training horse riding school property either controlled administered accused offence involving ak committed 1 november 2012 30 december 2012 respect count 1 complainant 13 year age count 2 19 september 2014 25 september 2014 complainant 15 year age allegation relating gc relate event occurring one day course conduct might use expression alleged complainant 5 february 2014 complainant 13 year age suggested two complainant knew circumstance matter issue raised context matter asked decide relatively short notice potential concoction issue discussed considerable length court criminal appeal range way particularly last five six year case typical one court matter frustration judge sitting one trial one minute handed file five minute later two different counsel front one happened yesterday confronted obviously complex difficult issue one regard various judgement court criminal appeal recent decision high court australia referred submission counsel accused ofimm v r 2016 hca 14 little time consider issue one could draw parallel sentencing well good say happened determination particular matter circumstance similar case heard appeal course always difference identified warrant individual consideration case bar turn principle applied relevant legislation respect party extensively referred decision court criminal appeal inhughes v r 2015 nswcca 330 decision court criminal appeal 21 december 2015 believe understood something read day ago although sick leave quite number week lost track information absorbed last week mr hughes made application high court granted special leave issue know purpose judgment adopt reasoning court criminal appeal hughes need refer specific detail must bound decision court delivering joint judgment event much hughes without getting merit issue high court resolve due course matter subject discussion well understood considerable period time beforehand since shortly enactment theevidence actin september 1995 example made clear helpful submission counsel accused decision aslockyer 1996 89 acr 457in judgment hunt cj cl issue relevantly constitutes probative value constitutes unfair prejudice still stand various subsequent qualification another decision age referred learned counsel accused understand still stand essence although matter contained within particularly pertinent appeal decision offletcher 2005 nswcca 338where honour simpson j noted various step required taken assessing admissibility tendency evidence character exercise predictive evaluative exercise particular matter identified judgment para 6 6 helpful written submission counsel accused pointed course context may considered court 2005 debate raging various intermediate court appeal course first instance range circumstance judge role evaluating probative value evidence settled decision ofimm v r 2016 hca 14 high court australia adopted essentially reasoning nsw decision ofr v shamouil 2006 nswcca 112 part reflected subsequent decision court appeal ofxy v r 2013 nswcca 121 judge role evaluating probative value extend assessing credibility evidence rule matter came context motion filed 3 august 2016 seeking tendency evidence sought relied upon crown determined inadmissible thereby excluded trial related ground motion seeking severance count indictment relating different complainant regard appreciate crown pointed form indictment presented yesterday upon accused arraigned changed quite considerably period time particular matter relating particular complainant billed particular allegation relating third complainant considered learned director appropriate tried separately six count relating matter concerned crown notice pursuant theevidence actof intention rely upon tendency evidence produced crown defence come moment particular respective count identified respect count 1 concerning complainant ak context instructing supervising complainant course presence horse training facility accused placed arm victim described put hand bra held hand slightly bra top breast allegation event 2012 count 2 concerned allegation september 2014 summarised particular advised accused placing finger inside front complainant buttoned shirt front complainant shirt respect gc count 3 concerned accused touching complainant hip bottom context understand endeavouring get onto placed upon horse count 4 allegation accused placing hand complainant thigh lower back particularly sliding hand pant underwear gripping bottom count 5 concerned accused grabbing sic complainant bottom described likewise relation count 6 must say although matter great deal understanding detail complainant actually say recorded interview touching rather grabbing way wording appeared particular nothing turn upon furthermore addition particular given electronic interview conducted respective complainant portion electronic interview identified relevant issue claimed tendency accused respect complainant ak gave interview 24 november 2014 respect complainant gc gave two interview one date interviewed different police another interview 5 december 2014 would appear second interview much longer first interview extent overlap first interview contains number additional allegation contained within first interview giving rise count indictment respect notice crown claimed tendency part accused context required identified 97 1 evidence act1995 |
R v Lechmana [2010] NSWSC 849 (9 July 2010).txt | r v lechmana 2010 nswsc 849 9 july 2010 last updated 4 august 2010new south wale supreme courtcitation r v lechmana 2010 nswsc 849this decision amended please see end judgment list amendment jurisdiction file number 2008 19511hearing date 30th november 1 2 3 4 7 8 9 10 14 15 december 2009 12th february 9th april 11th june 2010judgment date 9 july 2010parties regina crownnanthagopal lechmana offenderjudgment latham jlower court jurisdiction applicablelower court file number applicablelower court judicial officer applicablecounsel cunneen sc reginag scragg offendersolicitors kavanagh solicitor public prosectutionsjeffreys associate offendercatchwords criminal law sentence relevant factor nature circumstance offender depressive illness nature circumstance offence whether intention killlegislation cited crime sentencing procedure act 1999 nsw category sentencecases cited text cited decision convicted murder pharzana nathagopal sentenced non parole period 17 year 3 month date 25 february 2008 expiring 24 may 2025 balance term 5 year 9 month expiring 24 february 2031 eligible release 25 may 2025judgment supreme courtof new south walescommon law divisionlatham j9 july 20102008 19511 r v nanthagopal lechmanasentence1 honour offender found guilty trial murder wife pharzana 25 february 2008 never dispute caused death strangulation partial defence trial substantial impairment jury rejected sense offender depression considered substantial warranted reduction verdict murder manslaughter 2 verdict opinion completely understandable given nature relationship offender wife deterioration relationship month leading death including previous assault upon offender couple effort towards salvaging marriage victim final decision separate offender offender could accept offender violence towards wife night died act man deep grip depression unable control act man could see wife longer loved beyond authority husband determined separate taking child nothing could prevent 3 satisfied beyond reasonable doubt offender assaulted wife night 25 february 2008 intention killing reason finding set persuaded offence premeditated circumstance surrounding commission offence suggest offender frustration anger arising prospect losing wife child sense alienation wife family community found spontaneous expression violence meted wife culminated death 4 evidence trial established offender victim met 1997 whilst offender holiday australia married 2002 offender migrated malaysia australia day offence offender victim married approximately six year daughter reya nanthagopal born 21 november 2003 therefore five year old 5 appears relationship initially happy deteriorated birth daughter clear offender found moving malaysia difficult struggled adapt new life australia also found difficult maintaining consistent employment australia although difficulty securing employment offender changed job number time partly due perception part skill undervalued partly due difficulty encountered interaction work colleague offender mother reported exhibit e frequently felt uncomfortable workplace perception unpopular co worker also struggled wife sense independence particularly friendship men became convinced affair work colleague mr antony vitiello 6 29 october 2007 four month offence victim raised prospect separation result offender placed hand around throat attempted choke occasion stopped approached victim knife orange said word following effect would feel put knife stomach want victim later told mr vitiello event prompting advise victim report police take course fact encouraged offender attend counselling relationship australia expressed concern mental health offender mother 7 contrary offender belief evidence trial mr vitiello victim family member victim close affectionate relationship mr vitiello extend sexual one offender told much mr vitiello receptionist victim workplace offender delivered flower wife valentine day 14 february 2008 however remained unshaken belief wife unfaithful 8 difficult determine whether offender mistaken view wife fidelity product depression whether simply expression possessive nature difficulty arises offender post conviction account wife behaviour towards marriage provided number professional responsible preparation report purpose sentence particular offender told probation parole officer report dated 11 may 2010 wife always obsessive controlling tendency increased pregnancy stated always hotheaded temperamental change relationship result fact changed claimed 2006 change wife became pronounced cold distant time started suspect may affair co worker offender claimed january 2008 wife admitted affair night offence informed affair progressed physical relationship 9 offender told mr diment 7 june 2010 exhibit 2 two week wife death started hitting child often victim sometimes provocative hot tempered person friendship men one previous relationship guy work 10 course letter addressed court dated 21 april 2010 offender apologises affected accident offender state made many sacrifice wife never cheated hoped offender state wife drifted boundary marriage ridiculed subjected vulgar remark stressor mental illness rendered victim underlying vulnerability notwithstanding statement offender claimed trying find excuse action explaining situation exhibit 1 11 statement weight evidence trial completely contradict observation made family member friend nature relationship importantly victim general disposition particular fact victim enlisted help offender mother late 2007 attempt persuade offender resume medication prescribed dose completely odds wife longer cared husband interested welfare 12 false assertion offender part cannot regarded product mental illness view fact according report dr nielssen dated 26 february 2010 offender especially depressed receiving adequate treatment depression appears offender improved markedly structured treatment regime since taken custody 25 february 2008 initial cessation medication offender hoarding tablet preparation alleged suicide attempt compliance since resumption medication allowed undertake occupational educational course prison system good effect 13 view offender conscious deliberate misrepresentation marriage since conviction demonstrates willingness go considerable length avoid responsibility offence augur well prospect rehabilitation importantly tends undermine proposition depression root violent outburst towards wife one would expect improvement mental health lead acceptance part view marriage wife behaviour product distortion thinking brought illness yet far case 14 offender conduct immediately commission offence alter assessment regard fact offender drove car vaucluse consumed large quantity whisky sleeping tablet made telephone call mother expressing intention take life equally consistent realisation facing arrest imprisonment bringing dishonour upon member family offender sufficiently composed telephone victim mother immediately wife death inform pharzana dead collect reya alone unit 15 reason incline view offender depression albeit limited bearing commission offence exacerbated trait pre existing rigid possessive personality cannot doubted offender suffered depression history depressive illness family many respect offender author misfortune reluctant obtain treatment follow appointment consistently take prescribed medication absence reliable evidence supporting diagnosis attention deficit hyperactivity disorder offender depression serious pervasive diminishes moral culpability murder significant extent 16 duration severity assault upon victim subject considerable evidence trial submission sentence photograph bedroom victim discovered parent depicted various clump black hair blood stain floor cause death compression neck due manual strangulation including fracture greater horn voicebox also evidence bruising right side jaw minor injury left angle jaw region blunt trauma head bruising externally scalp fracture nasal bone bruising back limb 17 evidence dr langlois conducted post mortem examination fracture superior horn thyroid cartilage indicated substantial significant compression neck 5 kg pressure described moderate degree force pressure would stop blood circulating brain rendering victim unconscious lapse 15 30 second approximately four minute victim would died dr langlois concluded injury observed victim together photograph scene indicated existence struggle including infliction blow injury observed left right side neck form fingernail abrasion suggested victim attempted relieve pressure upon neck pulling offender hand lapsing unconsciousness injury around mouth jaw throat also consistent struggle 18 mr scragg submitted behalf offender injury consistent impulsive attack short duration offender absence evidence offender claim recollection assault court left draw inference nature victim injury physical evidence represented photograph evidence m satala neighbour heard three four loud bang murmuring noise time assault weight height victim 50 kg 159 cm must also factored exercise 19 concluded offender commenced assault upon victim bedroom striking face causing fracture nose bleeding thus resulting dispersion blood drop around room either striking pulled hair prevent escape striking offender applied consistent pressure victim neck whilst fought remove hand position victim clothed top bed parent arrived consistent strangulation occurring offender pinned reject proposition advanced mr scragg address offender victim engaged sexual activity argued argument compression victim neck resulted victim somehow falling floor thus sustaining injury nose abrasion noted dr langlois scenario take account number loud bang heard neighbour consistent tuft victim hair lying room 20 however long offender maintained pressure victim neck obvious mortal danger loosen grip yet persisted understood consequence conduct previously attempted choke effect threatened kill victim slight build factor support conclusion offender assaulted victim 25 february 2008 intention killing 21 crown submitted offence committed presence child pursuant section 21a 2 ea thecrime sentencing procedure act 1999 nsw evidence suggest reya room time offender committed offence aware taken place accordingly reject submission 22 reason ass objective gravity offence falling marginally mid range follows standard non parole period apply remains relevant sentence imposed event would decline apply circumstance offender prior good character offence committed context depressive illness 23 turn offender subjective circumstance 24 offender born malaysia lived 31 year old married victim migrated australia offender raised biological parent approximately four year old parent separated mother subsequently entered different relationship polygamous nature offender raised blended family unit second eldest child 25 apparently difficult environment tension mother stepfather first wife stepfather alcoholic subjected daily physical violence 16 year old 26 offender stepfather died 20 year old offender close mother relocated australia support proceeding maintains contact father offender also close half sibling 27 offender completed schooling age 18 year obtaining equivalent higher school certificate went federal institute technology malaysia attained diploma electrical engineering 1993 2000 awarded bachelor science degree electronic electrical engineering robert gordon university scotland malaysia offender completed study qualification since moving australia whilst custody 28 large number reference tendered provide evidence offender background personality work history many reference speak offence completely character 29 subjective factor suggest offender prospect rehabilitation sound complete absence remorse however matter concern already noted content pre sentence report tenor reinforced offender letter court 30 decline find special circumstance notwithstanding offender first time prison requires treatment depression treatment currently provided account adequate offender responded well date consideration depressive illness purpose determining length supervision community would represent double counting factor 31 ultimately court cannot lose sight fact life loving mother daughter sister friend many snatched away victim family member spoke victim generous gentle nature intense grief young child deprived mother hand father long term effect upon incalculable matter course justify increase upon sentence otherwise warranted according law however serve reminder value human life loss community large 32 taking matter account propose sentencing offender follows nanthagopal lechmana convicted murder pharzana nathagopal sentenced non parole period 17 year 3 month date 25 february 2008 expiring 24 may 2025 balance term 5 year 9 month expiring 24 february 2031 eligible release 25 may 2025 amendment 03 08 2010 amendment coversheet paragraph nil coversheet alteredlast updated 3 august 2010 |
ASTON, Marjorie Irene - Inquest Number 02_2015 (0051_2013) [2015] SACorC 11 (17 July 2015).txt | aston marjorie irene inquest number 02 2015 0051 2013 2015 sacorc 11 17 july 2015 coroner act 2003south australiafinding inquestan inquest taken behalf sovereign lady queen adelaide state south australia 31stday march 2015 1st 2ndand 7thdays april 2015 17thday july 2015 coroner court said state constituted anthony ernest schapel deputy state coroner death marjorie irene aston said court find marjorie irene aston aged 86 year late 28 branwhite street woodville south south australia died royal adelaide hospital north terrace adelaide south australia 5thday january 2013 result right subdural haematoma due blunt head trauma contributing excessive warfarin anticoagulation said court find circumstance death follows introduction cause death1 1 marjorie irene aston 86 year age died evening 5 january 2013 royal adelaide hospital rah admitted hospital earlier day mr aston lived alone house situated 28 branwhite street woodville south morning mr aston son mr barry aston spoken mother phone told suffered fall hit head end bed mr aston present 11am wife angela spoken phone mother would last conversation mr aston either son barry wife later day around 5pm mr aston wife attended mr aston premise woodville south answer door let found mr aston slumped armchair alive unresponsive ambulance called conveyed rah died approximately 8 45pm hospital 1 2 mr aston previous medical history included frequent atrial extrasystole asymptomatic also experienced bowel cancer 2010 mr aston seen cardiologist atrial fibrillation af end 2012 determined condition unremitting reason first time prescribed anticoagulant drug warfarin prescribed substitution cartia aspirin taking condition point mr aston prescribed warfarin 19 december 2012 dosage 5mg per day appears took one tablet every day 3 january 2013 general practitioner advised stop taking would die two day later period 3 january 5 january mr aston suffered fall circumstance came prescribed warfarin circumstance would consume pattern described subject discussion finding 1 3 post mortem examination conducted respect mr aston dr john gilbert forensic pathologist forensic science south australia report dr gilbert express cause mr aston death right subdural haematoma due blunt head trauma contributing excessive warfarin anticoagulation 1 salient pathological finding mr aston large right subdural haematoma consistent originated 24 48 hour prior death dr gilbert attributed mr aston death right subdural haematoma appears arisen relatively minor head trauma due fall home 4 january 2013 specialist brain examination neuropathologist 2 dr grace scott also revealed presence subarachnoid haemorrhage within brain relevant finding including submucosal haemorrhage renal pelvicalyceal system mediastinal renal haemorrhage present attributable excessive anticoagulation warfarin histological examination renal hilar haemorrhage indicated approximately five seven day old thus pre dated subdural haematoma dr gilbert express opinion subdural bleeding likely contributed excessive anticoagulation warfarin dr gilbert noted recent history frank blood mr aston urine appeared result submucosal haemorrhage renal pelvicalyceal system 1 4 notion mr aston intracranial bleeding precipitated fall supported dr gilbert finding 3cm diameter area subcutaneous subgaleal bruising midline occipital region scalp 5cm area similar bruising right parietal eminence evidence trauma head 1 5 found cause mr aston death right subdural haematoma due blunt head trauma contributing excessive warfarin anticoagulation background2 1 referred mr aston history af fact prescribed warfarin condition af condition heart involves abnormal rhythm respect heart atrium diagnosed mr aston case way constant electrocardiogram period 24 hour af necessarily fatal condition however rhythmic disturbance cause blood clot form atrium heart clot part clot dislodged atrium may advance bloodstream lodge within blood vessel brain may result stroke order prevent minimise rapidity clotting within atrium anticoagulant drug warfarin prescribed patient suffering af told course inquest since event le harmful drug become available control complication af placement patient warfarin regime serious clinical development patient wellbeing result condition known anticoagulation coagulation process blood clot clotting natural feature body process reduces stop bleeding anticoagulation occurs blood clotting capability altered effect warfarin upon blood clotting property lengthen time clotting occur mean bleeding may le controllable patient anticoagulated site bleeding might occur include bladder may evidenced blood urine also brain bleed within brain elderly person caused say trauma may result catastrophic fatal brain haemorrhage subdural haemorrhage subarachnoid haemorrhage person undergoing warfarin regime exhibiting blood within urine would pose clinical question whether person anticoagulation level properly controlled 2 2 warfarin administration undertaken patient generally administered way daily tablet prescribed medical practitioner supplied pharmacist usual manner mr aston case prescribed form 5mg tablet taken daily night mr aston supplied 50 tablet pharmacist findon drug labelled container state marevan 5mg warfarin tablet information bottle state originally contained 50 tablet direction container state follows take one tablet night strictly directed doctor pattern consumption maintained literal accordance prescription extended period time mr aston case dangerous situation regarding patient health would likely arise patient anticoagulation might develop catastrophic level reason strict careful supervision medical practitioner patient anticoagulation level instigated first available opportunity warfarin consumption commences closely monitored 2 3 enable warfarinised patient anticoagulation level measured blood test establishes referred patient inr level conducted inr patient reflects rate patient blood coagulate higher level slower blood coagulation inr stated numerical figure evidence normal inr level 1 however therapeutic anticoagulation level patient experiencing af 2 3 warfarin taken quantity dosage designed maintain patient within inr range said evidence level excess 5 considered dangerous level 12 certainly considered dangerous would require medical intervention 2 4 order maintain appropriate therapeutic level anticoagulation initial stage anticoagulation therapy medical practitioner would need check inr level number occasion first week therapy adjust dose warfarin accordingly due course recommended dosage identified hopefully maintain patient within therapeutic level thereafter inr check might required le frequently 2 5 method anticoagulation caused warfarin therapy reversed would first instance require consumption warfarin ceased certain reversal measure would implemented administration vitamin k would conducted hospital setting need active reversal anticoagulation distinct temporary cessation warfarin consumption would depend clinical presentation patient patient existing inr level 2 6 seen earlier mr aston prescribed warfarin 19 december 2012 according information bottle acquired pharmacist day think highly likely nature thing consumed first tablet evening time death 5 january 2013 apparent mr aston self administered 16 tablet 50 tablet supplied chemist 19 december 2012 34 tablet remain within container consumed first warfarin tablet 19 december thereafter consumed accordance prescription rate one tablet per day sixteenth tablet would taken thursday 3 january 2013 day mr aston advised medical practitioner cease taking warfarin advice tendered circumstance describe referred inr testing mr aston underwent inr test 21 december 2012 according sa pathology formerly known imvs institute medical veterinary science request form relating test blood specimen testing taken 10 40am day mr aston taken warfarin accordance dosage instruction time specimen collected would taken one tablet evening 19 december another evening 20 december 2012 inr 21 december determined 1 9 lower end therapeutic spectrum af evidence inr level reflective relatively rapid onset anticoagulation mr aston would undergo inr testing admitted rah 5 january 2013 catastrophic bleed brain undoubtedly contributed excessive anticoagulation inr hospital measured 12 indicated probable mr aston consuming 5mg warfarin tablet daily basis 19 december 3 january 2013 told stop taking view find pattern consumption undoubtedly resulted grossly excessive anticoagulation period inr unquestionably monitored dosage warfarin either varied temporarily suspended inr level stabilised within appropriate therapeutic range 2 7 inquest examined circumstance mr aston prescribed warfarin circumstance began taking circumstance conspired see mr aston monitored inr level 21 december 2012 5 january 2013 admitted hospital extremis died mr aston seen professor john horowitz3 1 professor horowitz cardiologist clinical pharmacologist graduated medicine adelaide university 1971 phd clinical pharmacology qualified specialist physician cardiology clinical pharmacology 1979 spent two year harvard university research fellow cardiology clinical pharmacology practised cardiologist clinical pharmacologist since 1979 published widely respect issue connected drug heart disease particular interest management af director cardiology queen elizabeth hospital since 1988 professor cardiology adelaide university well university south australia aberdeen university scotland also director cardiology lyell mcewin hospital 15 year period ending 2007 3 2 director cardiology unit queen elizabeth hospital qeh professor horowitz manages range heart disease present hospital available consult difficult drug problem arising within hospital particularly related cardiac drug qeh cardiology unit letterhead depicted letter written professor horowitz respect patient mr aston reveal large professional membership unit 3 3 professor horowitz reviewed mr aston qeh wednesday 19 december 2012 occasion professor horowitz determined mr aston needed warfarin respect chronic af revealed 24 hour period holter monitor occasion professor horowitz also ceased mr aston previous drug cartia 3 4 professor horowitz provided statement police 18 january 2013 3 well gave oral evidence inquest 3 5 course inquest question raised whether may appropriate safer professor horowitz advised mr aston general practitioner mr aston required warfarin regime left general practitioner initiate prescribe manage warfarin regime including monitoring inr level titration dosage return discussion issue due course well state regardless medical practitioner initiated warfarin regime professor horowitz mr aston general practitioner suggestion mr aston warfarin regime af inappropriate fact court find warfarin regime appropriate initial dosage 3 6 professor horowitz told court 19 december consultation mr aston presence dictated letter general practitioner dr fong liew woodville south medical centre situated 4 woodville road woodville south letter dr liew dated 19 december 2012 probably typed day stated mr aston gone af circumstance needed warfarin letter advised professor horowitz ceased mr aston cartia administration arbitrarily started 5mg day warfarin letter advised mr aston would undergo first inr test two day time would 21 december 2012 letter also asserted professor horowitz explained mr aston would need monitoring dose right implication dr liew responsible monitoring 3 7 letter would reach dr liew ordinary mail 9 january 2013 transmitted mean heard evidence location dr liew general practice close proximity qeh professor horowitz saw mr aston separated car park also understood evidence mr aston used walking frame travelled taxi part seen earlier lived alone 3 8 oral evidence professor horowitz told court 19 december impressed upon mr aston need monitoring reinforce wrote note hand designed bring home danger associated warfarin administration note simply said atrial fibrillation warfarin rat poison reference rat poison reference professor horowitz told mr aston active component warfarin used rat poison advice tendered association advice needed inr level monitored regularly general practitioner regard professor horowitz told mr aston needed first inr test two day time make appointment see general practitioner day note 21 december 2012 friday professor horowitz also provided mr aston sa pathology request form enable secure inr test 4 request form stated originating practitioner professor horowitz clinical note simply stated warfarin test requested simply inr request form dated 19 12 12 bear priority stamp box marked urgent ticked provision form result test copied entity nominated requesting practitioner copy box form completed issue inquest arose whether dr fong liew mr aston general practitioner copied process dr liew could furnished result inr test soon possible quite apart professor horowitz letter dr liew would alerted dr liew fact mr aston placed warfarin professor horowitz inr test taken place would need mr aston general practitioner ensure contact made purpose monitoring 3 9 return question professor horowitz letter dr liew professor horowitz told court although dictated letter mr aston presence 19 december 2012 would expected typed day would necessarily posted qeh system day typed end result fact expectation would letter would reach dr liew ordinary post several day letter would neither faxed emailed intended recipient modern mean transmission routine practice seen letter would received wednesday 9 january 2013 date stamped letter within dr liew practice dr liew endorsed letter date 9 1 13 receipt four day mr aston death add however despite non receipt letter date dr liew made aware mr aston warfarinisation first time thursday 3 january 2013 visited home circumstance describe due course nevertheless accept dr liew received letter professor horowitz thursday 3 january 2013 still fortnight dictated receipt letter dr liew room 9 january 2013 keeping general expectation professor horowitz described respect letter dictated sent general practitioner delay case particular letter may elongated christmas new year period note however earlier correspondence professor horowitz dr liew november 2010 consisting letter dated 2 november 2010 stamped received dr liew room 11 november 2010 consistent usual pattern dispatch receipt letter professor horowitz dr liew thus letter dictated professor horowitz stood good chance overtaken event would tragically transpired mr aston reason become apparent archaic mean transmission professor horowitz letter contributing factor mr aston death 3 10 digress state court furnished audio recording telephone conversation mr aston healthdirect australia healthdirect telephone medical service telephone conversation last several minute occurred morning day mr aston death namely saturday 5 january 2013 time mr aston dramatic clinical deterioration later day brain haemorrhage impression mr aston conversation coherent woman could impart relevant information clearly could understand readily told mention suggestion mr aston least capacity understand professor horowitz advice regard warfarin dangerous substance required monitoring attend sa pathology inr test arrange see general practitioner day event know mr aston attend imvs inr test 21 december 2012 equally clear see general practitioner instructed professor horowitz may lot nature mr aston clinical relationship dr liew 3 11 therefore necessary point describe relationship mr aston general practitioner dr liew transpired dr liew period followed consultation professor horowitz dr liew explained relationship course oral evidence dr liew stated mr aston patient since 26 may 2010 far knew mr aston actually attended woodville south practice time consultation involved dr liew visiting home told court many visit instigation therefore possible mr aston told professor horowitz arrange consultation dr liew heard professor horowitz dictate letter dr liew mr aston expectation dr liew would soon contact initiate required monitoring regime accordance usual practice one would entitled expect letter dictated one presence would reach intended recipient within something le three week mr aston waiting dr liew initiate contact supported evidence son barry aston mr aston told court following mother initial blood test consultation professor horowitz seemed waiting dr liew contact 3 12 event known revealed telephone record mr aston ultimately phoned dr liew room 3 january 2013 dr liew later day saw mr aston home however apparent mr aston seen blood urine well may also experienced constipation could raised concern mind regard previous history bowel cancer also clear consultation mr aston dr liew time 19 december 2012 professor horowitz saw dictated letter dr liew 3 january 2013 mr aston contacted dr liew practice phone resulted dr liew visiting home evening thus professor horowitz expectation mr aston would arrange see dr liew friday 21 december 2012 may somewhat misplaced regard type clinical relationship dr liew involving probable expectation mr aston part dr liew would initiate contact despite professor horowitz advice arrange see dr liew blood test may well mr aston reasonable expectation professor horowitz letter would reach dr liew within reasonable time regard fact wednesday week dictated contrary reasonable expectation letter took unreasonable length time reach dr liew due methodology professor horowitz letter general practitioner processed sent one cannot help wonder point professor horowitz letter expect received well dr liew informed mr aston warfarinisation mr aston indicated earlier receipt letter always going overtaken event mr aston chosen initiate contact dr liew professor horowitz instructed receipt letter january would informed dr liew anything would already gleaned patient augmented whatever enquiry would need make initiative 3 13 statement professor horowitz acknowledged knew letter dictated sent dr liew could take ten day reach possibly take long two week thing went badly reason trust letter handwrote note mr aston believed said something like started warfarin please monitor already seen letter say anything monitoring said entertained doubt mr aston intellectual capacity would telephoned general practitioner case seen reason 3 14 aspect professor horowitz evidence methodology communicating general practitioner open question repeatedly insisted common uniform practice specialist communicate general practitioner way mr aston case say sending letter ordinary post providing oral advice patient pain argue manner endeavoured ensure mr aston monitored general practitioner involving direct communication general practitioner case practice around world norm suggest way egregious condemn general practice regarding use warfarin worldwide 5 stated way different norm specialist practice reproachfully suggested counsel assisting m kereru arguing whether deviated normal standard care 6 asked whether endeavoured ascertain professional colleague within cardiology unit qeh listed letterhead whether practice accepted practice time therefore practice well professor horowitz insisted practitioner people trained implying one supposes would perhaps even subscribe methodology 7 3 15 court bound say 20 20 hindsight required reach conclusion professor horowitz practice practice fraught imprecision bound fail due course one circumstance heartily deprecated would grave difficulty describing professional clinical practice method communication general practitioner kind discussion mind simply administrative practice one taking advantage available modern technology 3 16 statement professor horowitz frankly acknowledged mr aston inr gone unchecked slow metaboliser warfarin 5mg per day two half week period small old lady would result inr level dangerously high underlying base assertion accurate sense accurately describes mr aston unchecked pattern warfarin consumption regard rapidity achieved inr 1 9 good reason believe rapid metaboliser reason mention moment entirely certain professor horowitz oral evidence issue bore level candour 3 17 statement professor horowitz acknowledged blood urine person could imply need hospitalisation patient inr 4 instead 2 5 stopping warfarin couple day dropping dose might sufficient inr 8 patient would need sent hospital 3 18 clear professor horowitz statement oral evidence consultation 19 december 2012 knowledge development respect mr aston inr monitoring lack dr liew 3 19 professor horowitz oral evidence told court mr aston inr 1 9 21 december 2012 meant already almost loaded warfarin would expected level 1 7 l 8 meaning seen inr 1 9 two day would lowered dosage 3mg 4mg professor horowitz also stated inr 4 start become dangerous 5 worth reversing 8 fact went later say inr 5 actual bleeding would caused use reversal agent professor horowitz said would nervous sitting 5mg dosage two day mr aston almost therapeutic 3 20 professor horowitz oral evidence insisted although would concerned mr aston inr exceeded 5 known high inr level actually ultimately achieved added important court realise saying evident pointed court professor horowitz known mr aston presented rah 5 january 2013 inr recorded 12 9 said would astonished someone inr 1 9 two day would end steady state inr 12 used word bizarre said would need additional factor liver failure evidence professor horowitz gave neatly sit assertion witness statement effect period two half week inr level would become dangerously high rate consumption 5mg per day unchecked consisted dogmatic assertion patient two day inr 1 9 16 day inr reached plateau said plateau would reached seven day would high 10 suggested plateau may level 3 5 said 5 mg yes give official say would like know started 5 mg day level two day 1 9 reasonable expectation steady state inr would somewhere 2 5 3 5 10 asked would achieved said whenever 10 day 10 day 20 day 20 year reason become apparent rejected evidence 3 21 observed professor horowitz plateau 3 5 figure therapeutic range af evidence one would viewed dangerous one would account mr aston catastrophic brain haemorrhage professor horowitz add second drug might altered pattern regard seen dr liew would ultimately prescribe mr aston antibiotic trimethoprim suspected urinary tract infection professor horowitz believed would significant effect evidence independent expert dr peter joyner whose evidence deal herein amounted assertion counsel dr liew mr henchliffe reminded professor horowitz said witness statement inr level becoming dangerously high monitored 5mg per day professor countered saying dangerously high meant level 5 nevertheless regardless estimate level plain acknowledged witness statement potential unmonitored inr level become dangerously high woman mr aston consistent daily dosage 5mg warfarin period question flavour oral evidence topic robust add evidence powerfully effect regardless inr number mr aston ultimately would reached must reached dangerously high level caused brain haemorrhage plateau reached one excess mr aston could safely tolerate preferred evidence also prefer professor horowitz analysis situation described witness statement said oral evidence mr aston see dr liew 3 4 january4 1 dr liew general practitioner obtained medical qualification university singapore 1968 practised kuala lumpur australian defence force army doctor time house doctor general motor holden worked five year lyell mcewin hospital accident emergency time inquest concerned practising within woodville south medical centre another doctor working practice dr ng practice open monday friday dr liew work saturday sunday dr ng normally worked saturday morning midday however weekend following dr liew consultation mr aston namely weekend 5 6 january 2013 dr ng working 4 2 dr liew explained clinical relationship mr aston term already described occasion consultation 3 january 2013 dr liew said could recall whether asked visit whether visited simply check seems probable mr aston called 4 3 thursday 3 january 2013 clear mr aston experiencing blood urine appears along another possible concern bowel cancer provided impetus mr aston initiate contact dr liew mr aston telephone record call home telephone dr liew surgery 2 14pm 3 january 2013 would consistent mr aston period since 19 december 2012 waited dr liew either call visit home seen son barry impression mother fact waiting dr liew make contact mr aston told son could work taken cartia happy indicated happy warfarin mr aston said evidence know unhappy new drug mr aston believed knew mother undergone one blood test time know reading mother never mentioned result 11 3 january 2013 mr aston became aware phone call call mother felt unwell blood urine said constipation felt sick information seems imparted mr aston dr liew seen mr aston evening mr aston gave evidence accepted assertion effect 3 january 2013 imperfect understanding significance warfarin administration although appears january 3 understood dr liew intended commence testing mr aston inr level advised take warfarin time appreciation present danger mother may 4 4 dr liew provided statement 12 police gave oral evidence inquest dr liew handwritten clinical note 13 consultation tendered inquest 4 5 clinical note dated 11 december 2012 demonstrates dr liew knew mr aston would seeing professor horowitz holter monitor test however note suggest dr liew knew result test prior attendance mr aston home 3 january 2013 indicated earlier professor horowitz letter date stamped received 9 january 2013 indication file dr liew copied inr result 21 december 2012 seen professor horowitz request form ask dr liew copied result evidence dr liew testified knew nothing fact mr aston placed warfarin required monitor administration accept evidence clinical note 3 january 2013 made hand begin referring fact mr aston started warfarin 5mg 19 12 12 professor horowitz much could either gleaned mr aston container tablet described marevan container clearly marked marevan 5mg significantly dr liew noted clinical record know nothing underlined suggestion added event mr aston death comfortably satisfied prior 3 january dr liew know anything mr aston placed warfarin required monitor best may within dr liew contemplation point might eventuality actual knowledge view 4 6 dr liew note 3 january go refer complaint constipation three day note also refers frank haematuria reference visible blood within urine note also refers dr liew suspension warfarin meaning advised take consultation appears commenced 7 10pm mr aston gave dr liew indication due take next warfarin tablet 9pm would administration would avoided would seem unlikely would take nightly tablet contrary advice given dr liew dr liew noted advised mr aston implication warfarin administration requirement maintain inr correct range 2 3 reference need obtain inr following day 4 7 oral evidence dr liew elaborated upon notation clinical note told court mr aston said professor put medication making bleed naturally referring warfarin appeared association mind medication bleeding dr liew performed dipstick urine test confirmed blood urine dr liew appears equally concerned possibility urinary tract infection dipstick test appeared indicate white cell consistent infection urine result suspicion urinary tract infection prescribed antibiotic trimethoprim 4 8 dr liew told court also suspected blood mr aston urine related consumption warfarin reason advised stop taking said surprised learn mr aston warfarin since 19 december 2012 without personally advised professor horowitz said would expected advised immediately could assume close monitoring dosage 14 although dr liew wanted take blood sample mr aston order inr level ascertained soon possible regard hour decided would take sample following day considered whether mr aston situation required hospitalisation think necessary 4 9 following day friday 4 january 2012 dr liew returned mr aston house attendance occurred 1 50pm day dr liew observed mr aston urine much lighter bloody note however within written clinical note described blood still like rose syrup formed opinion bleeding diminishing took blood sample dr liew used particular type tube take blood sample ultimately sample would tested sa pathology sample received determined insufficient blood tube come back moment 4 10 dr liew completed sa pathology request form type professor horowitz used december form would accompanied blood sample sa pathology stated requested test inr clinical note simply stated warfarin request form marked urgent salient feature request form completed dr liew precisely manner routine inr blood test would requested would read sa pathology manner difficulty routine inr blood test inr test requested clinical presentation suspected urinary bleeding result warfarin anticoagulation lack inr testing since one test 21 december 2012 occurred two day following initial administration warfarin sa pathology know nothing additional key matter relevance 4 11 course dr liew evidence number standout issue closely questioned firstly friday 4 january sunday 6 january 2013 dr liew chased result inr test secondly whether dr liew full appreciation fact since 19 december 2012 mr aston consuming 5mg warfarin daily basis without interruption save except inr test 21 december 2012 without monitoring thirdly included within sa pathology request form crucial additional matter identified preceding paragraph4 12 first issue necessary describe occurred relation blood sample dr liew took mr aston friday afternoon regard heard evidence mr adrian griffith section head automated haematology sa pathology although mr griffith personal involvement processing blood sample question able speak certain record maintained respect processing sample doubt sample request form collected dr liew surgery friday afternoon equally doubt technician test sample reason sample considered inadequate direct evidence asserted inadequacy equally reason suppose view taken sample incorrect matter need taken consideration earlier indicated request form suggest particular urgency associated request analysis actual importance testing blood sample inr would appreciated within sa pathology face request form routine inr test meaning sample thought inadequate sample could requested taken without need urgency hand request described urgent reason inr testing term actual clinical need identified document may well different approach particular sample 4 13 mr griffith dealt number matter evidence firstly documentation referred demonstrated attempt made case call dr liew let know tube submitted filled apparent work undertaken relation sample around 4pm afternoon friday 4 january 2013 filling identified reference computerised record sa pathology sample considered filled attempt made contact dr liew surgery afternoon matter contact unsuccessful note left sa pathology saturday morning staff attempt phone surgery morning reference unsuccessful attempt 11am surgery said closed note left attempt made monday morning question whether attempt made ought made contact dr liew home satisfied circumstance known sa pathology staff would pressing need done event dr liew would become aware assessment blood sample filled mr aston death returned work following week 4 14 secondly question remains may transpired sample properly filled tested alternatively request form signified sa pathology sense urgency mr griffith suggested latter situation slight filling sample may ignored sample analysed inr reading dangerous level result would worthwhile reporting least effort would made contact doctor ensure something could done critical inr level might even involve contacting police doctor patient could contacted direct indeed anything therapeutic range would telephoned understood urgency signified result would available within hour dr liew may well contacted 4 january 2013 15 effect mr griffith evidence sample properly filled requesting document indicated urgency reason urgency sa pathology would taken step contact dr liew friday 4 15 course begged question dr liew would chased result inr test regard mr aston circumstance said simply slipped mind ensuing weekend 16 agreed received result blood test friday possible would receive monday agreed waited inr result period would long 17 said failure chase result omission part 18 asked explain word slipped mind said followed result said normally yes yes went mind mind would yes would done keep close normally explain weekend like excuse 19 4 16 dr liew tick urgent box request form offered may bit rush acknowledged marked urgent also acknowledged included information fact mr aston blood urine 20 agreed another omission part 21 4 17 one particular aspect dr liew evidence troubled court concerned dr liew level awareness 3 4 december 2013 mr aston warfarin consumption pattern since 19 december fact inr monitored 21 december said begin detected undue tone evasiveness part dr liew respect issue said never entered mind whether warfarin checked since started 19 december 2012 22 wholly unlikely statement regard fact would one first thing concerned medical practitioner dr liew circumstance would ask patient also said know professor horowitz commenced warfarin administration would another important question ask matter could easily established simply looking date warfarin tablet container 19 december 2012 dr liew suggested important matter mind bleeding urine naturally important another important consideration dr liew would establish whether appreciable risk catastrophic bleed amount warfarin mr aston taking unchecked would relevant evidence dr liew eventually suggested probably would asked mr aston warfarin commenced could remember 23 dr liew also stated calculate number tablet mr aston may taken since started could easily established asking mr aston whether taken one per day even way counting number tablet remaining bottle asked whether concerned whether mr aston monitored since placed warfarin said would expect monitored anybody started warfarin would monitored closely next week assertion contrary assertion within written statement given 23 january 2013 concerned mr aston taking 5mg warfarin without regular monitoring 24 dr liew suggested meant imply knew monitored went tell court presumed monitored known nothing pressed said fact concerned definitely monitored court part surprised dr liew would readily acknowledged obvious namely must known mr aston monitored inr taking warfarin full accordance prescription since 19 december 4 18 two matter dr liew gave evidence referred issue whether dr liew considered hospitalisation mr aston light clinical presentation history warfarinisation topic dr liew statement oral evidence referred previous experience another elderly patient warfarin presented blood urine sent patient hospital warfarin stopped bleeding ceased patient commenced warfarin sent home contacted dr liew say bleeding started dr liew told patient stop taking warfarin notice bleeding stopped mr aston case dr liew suspected bleeding occurring lining bladder wall stopping warfarin would stop bleeding previous patient however distinguishing feature mr aston case dr liew previous experience mr aston case consuming 5mg warfarin daily basis without monitoring period approximately two half week meant dr liew knew could accumulated catastrophic inr fact would turn case whereas previous case suggestion patient warfarinised inr exceeded accepted limit simply bled bleeding stopped warfarin stopped respect difficult discern comfort dr liew could derived previous experience believe dr liew equated two set differing circumstance 4 19 matter possible significance dr liew prescription antibiotic extract mims publication tendered court 25 said antibiotic question trimethoprim may potentiate anticoagulant activity warfarin state careful control anticoagulant therapy treatment trimethoprim advisable hand professor horowitz expressed belief think would interact significantly warfarin independent expert whose evidence mention presently similar view suffice say antibiotic contraindicated far literature concerned would better left unprescribed clearly overwhelming consideration mr aston presentation dr liew bleeding urine fact commenced consuming daily basis unchecked quantity warfarin anticoagulation level also gone unchecked possibility urinary tract infection something side issue event 5 january 20135 1 1 saturday 5 january 2013 number phone conversation mr aston son wife occurred one call mr aston said experienced fall hit head end bed mr aston advised attempt call doctor apparent unsuccessfully attempted event able speak person healthdirect call commenced 10 22am lasted several minute audio recording call played court transcript conversation tendered evidence 26 referred conversation earlier mr aston began informing operator christmas placed warfarin blood urine referred dr liew treated asked whether doctor aware blood urine said aware come home treat said experienced fall 10 30 previous evening said leg gone wobbly hit head end bed said struck head back side although described dull sort head time said really headache said also large bruise arm plain mr aston associated bleeding urine warfarin administration made association clear operator said breathing normal currently bleeding although bruise experienced seizure confused ambulating speech clear alert described alarming symptom said lose consciousness time fall said would able keep eye advised son daughter law would coming house birthday luncheon advised operator call 000 ambulance developed sleepiness vomiting difficulty walking double vision advised drink alcohol mr aston also advised symptom worsened experienced dizziness call back call doctor immediately conversation concluded mr aston telling operator going spend day watching cricket 5 2 salient feature conversation mr aston experienced fall experienced blow head warfarin experiencing blood urine otherwise asymptomatic importantly conversation established seen doctor issue concerning blood urine son daughter law would attending premise later day one matter discussed conversation whether mr aston inr monitored matter operator healthdirect appreciation hand may reasonable operator assumed inr monitoring ongoing fact mr aston said doctor coming treating could well engendered mind operator belief anticoagulation monitoring matter place anticoagulation subject proper control notwithstanding haematuria evidence dr peter joyner independent expert6 1 dr joyner bachelor medicine bachelor surgery adelaide university 1969 diploma obstetrics also fellowship college rural remote medicine period practice metropolitan adelaide dr joyner moved mannum 1976 since general practice dr joyner director emergency service country health sa responsibility country health sa include oversight emergency service chair credentialing committee respect application medical practitioner practise country hospital given expert evidence medico legal matter number jurisdiction state regarded dr joyner expert practice general medicine add also regarded professor horowitz dr liew expert respective field 6 2 dr joyner general practitioner independently reviewed circumstance mr aston death dr joyner provided written report 27 gave oral evidence 6 3 dr joyner critical number aspect mr aston management professor horowitz dr liew dealing matter mention dr joyner firm opinion assumption mr aston taken 5mg warfarin per day 3 january 2013 inr would reached potentially dangerous level 10 15 even 28 suggested initial response consumption warfarin taken consideration difficult imagine level would dangerous level even one week dr joyner agree mr aston inr might plateau suggested plateau would occur dangerous level 10 reached fact dr joyner stated encountered patient plateauing normal expected range experience always occurred toxic range 29 cross examination counsel dr liew mr henchliffe invited dr joyner comment professor horowitz expectation inr would plateaued 2 5 3 5 dr joyner told court agree conclusion told court treated many patient year initiating monitoring inr level reason regarded dr joyner equally qualified professor horowitz speak expected inr level dr joyner pointed professor horowitz view supported literature guideline relate manner inr level monitored dosage warfarin titrated dr joyner expressed firm view one could accurately predict dose 5mg per day would plateau safe level added compelling observation otherwise standard recommendation repeat testing carefully first couple week need 30 6 4 asked possible effect prescription antibiotic trimethoprim dr joyner told court would used antibiotic primary issue far mr aston concerned need establish inr told court therapeutic guideline would indicate antibiotic cause increase inr level people take five day occur take amount time antibiotic affect enzyme liver turn affect action warfarin view mr aston taken antibiotic following prescription dr liew would necessarily altered thing regard dr joyner evidence dissimilar professor horowitz insofar professor believe antibiotic would made significant contribution mr aston anticoagulation 6 5 dr joyner express surprise 5 january 2013 mr aston inr level 12 regarded extremely dangerous level moreover given level recorded following probable period abstinence dr liew advised stop taking inr level would least 12 even higher experienced fall event preferred accepted dr joyner evidence find professor horowitz evidence one would expect plateauing inr occur range 2 5 3 5 highly unlikely would bring question need monitoring dosage 5mg le prescribed first instance compelling point made dr joyner dr joyner independent expert also view lends support notion evidence preferred accordingly found 3 january 2013 dr liew saw mr aston inr dangerous level whatever number may excessive level anticoagulation significant contributing factor bleed within urine brain haemorrhage well 6 6 dr joyner view following matter associated mr aston clinical management questionable professor horowitz reliance upon mr aston initiate contact general practitioner purpose monitoring dr joyner believed letter dr liew inadequate simple phone call dr liew would appropriate would prevented whole cascade event similarly facsimile could sent court part email also would sufficient dr joyner regarded professor horowitz method communication unsafe practice regardless whether standard practice mitigation dr joyner recognised mr aston may presented professor horowitz coherent organised person reason may misled relying completely court would add mr aston clinical relationship dr liew whereby would expected contact may appreciated professor horowitz dr joyner thought would sensible idea professor horowitz initiated warfarin administration requested general practitioner undertake initiation follow way monitoring however court would make observation professor horowitz initiation warfarin therapy could questioned direct speedy effective communication mr aston general practitioner professor horowitz copied dr liew inr request dr liew advised inr result 21 december 2012 inr 1 9 two day warfarin therapy raised concern mr aston sensitive medication warfarin dosage reduced stage period time 21 december 2012 3 january 2013 mr aston consuming warfarin inr monitored completely variance recommendation warfarin usage several inr estimation first week obtained information within dr liew sa pathology request form inadequate marked urgent addition form signified existing clinical presentation haematuria raised possibility high inr regard fact patient inr gone unmonitored two week dr liew taken trouble ensure inr result requested made available positive step would revealed need take another blood sample mr aston question whether mr aston may required hospitalisation reverse high inr needed resolved weekend resolved 6 7 dr joyner also asked comment upon interaction mr aston healthdirect telephone conversation took place morning saturday 5 january 2013 certain dr joyner sense critical manner healthdirect operator dealt mr aston however say view combination circumstance namely fall head injury fact patient older person patient warfarin already sign bleeding urine conspired place mr aston high risk could given rise recommendation healthdirect operator mr aston present hospital evaluated 31 one could possibly add observation need operator circumstance specifically establish questioning whether patient properly monitored inr level recent past 6 8 finally dr joyner expressed view mr aston death preventable number level death would preventable subject appropriate inr monitoring 21 december 2012 3 january 2013 32 secondly correct recognition critical level either night seen dr liew following day took blood sample dr joyner view generally speaking inr level mr aston could reversed relatively straightforward manner opined follows would say would every expectation level taken day referred queen elizabeth hospital would survived ill effect 33 dr joyner also expressed view even mr aston fall regard fact coherent clear telephone morning 5 january 2013 death may even preventable point said time telephone conversation healthdirect brain haemorrhage occurred started increasing slowly point presented hospital high inr could identified reversed ct mr aston head would conducted bleeding stable clot formed significant problem existed time condition could watched probably left alone mr aston deteriorated may possible drain haemorrhage prevent pressure build believed may last window opportunity mr aston life saved dr joyner however added rider circumstance saving life would necessarily guaranteed 6 9 accepted dr joyner evidence conclusions7 1 5 january 2013 mr marjorie aston died royal adelaide hospital cause death right subdural haematoma due blunt head trauma contributing excessive warfarin anticoagulation 7 2 19 december 2012 mr aston placed warfarin therapy professor john horowitz thereafter mr aston consumed one 5mg warfarin tablet succeeding day 3 january 2013 consumption warfarin period caused state anticoagulation mr aston blood reached dangerous level result mr aston first experienced blood urine 3 january advice general practitioner dr liew mr aston ceased taking warfarin evening 4 january 2013 mr aston struck head end bed find impact conjunction mr aston dangerous level anticoagulation resulted experiencing right subdural haematoma would prove fatal find balance probability level anticoagulation caused consumption warfarin substantial causative factor mr aston death 7 3 3 january 2013 mr aston prescribed antibiotic trimethoprim drug potential increase anticoagulant activity warfarin find contribute significantly mr aston level anticoagulation contribute substantially cause mr aston death 7 4 21 december 2012 mr aston undergone inr test revealed inr 1 9 time mr aston blood sample taken purpose test consumed two 5mg tablet warfarin inr level 1 9 nearly twice normal inr level almost within therapeutic range condition atrial fibrillation prescribed thereafter inr level tested identified mr aston admitted hospital acute subdural haematoma 5 january 2013 time inr level 12 inr level one presented extreme danger mr aston wellbeing regard potential give rise fatal haemorrhage within skull mr aston inr level monitored 21 december 2012 5 january 2013 accordance usual requisite medical practice find inr level monitored accordance usual clinical requirement monitoring warfarin administration warfarin dosage would adjusted view establishing maintaining mr aston inr level within therapeutic range proper adjustment dosage would prevented inr level entering dangerous life threatening range death thereby would prevented 7 5 failure mr aston inr level monitored 21 december 2012 5 january 2013 due following circumstance professor horowitz questionable reliance mr aston ability inclination contact general practitioner dr liew first appropriate opportunity mr aston failure contact dr liew instructed professor horowitz soon 21 december 2012 order advise dr liew fact placed warfarin therapy mr aston reliance upon usual practice developed dr liew dr liew would normally contact giving rise expectation part dr liew would initiate contact relation question inr monitoring coupled dr liew lack knowledge source mr aston placed warfarin therapy professor horowitz failure copy dr liew request form respect initial sa pathology inr test professor horowitz failure communicate dr liew soon 19 december 2012 phone facsimile email advise dr liew placed mr aston warfarin therapy would need dr liew monitor mr aston inr level inordinate time took professor horowitz letter 19 december 2012 addressed dr liew seen dr liew time mr aston died dr liew failure fill blood sample tube level could unequivocally regarded sufficient purpose inr testing dr liew failure 3 4 january 2013 proper regard give sufficient weight combined circumstance mr aston experiencing blood urine consuming warfarin 5mg per day every day since 19 december 2012 intervening period mr aston inr level properly monitored therefore serious consideration needed given need anticoagulation reversal hospital dr liew failure identify within sa pathology request form inr testing patient mr aston experiencing blood urine inr level tested since commencement warfarin therapy 19 december 2012 thereby implying within document routine inr test absent underlying concerning clinical circumstance dr liew failure make enquiry either friday 4 january saturday 5 january 2013 result inr test requested 7 6 view mr aston death could prevented either implementation appropriate inr monitoring following placement warfarin therapy taking timely appropriate action 3 january 5 january 2013 establish inr action could resulted mr aston admitted hospital anticoagulation reversal 7 7 believe act omission part healthdirect contributed mr aston death healthdirect operator enquired mr aston established mr aston inr level properly monitored since commencement warfarin therapy 19 december 2012 may prompted operator advise mr aston admit hospital soon possible however mind would counsel perfection suggest enquiry inevitably made draw observation attention healthdirect well observation made dr joyner course evidence outlined recommendations8 1 pursuant tosection 25 2 thecoroners act 2003i empowered make recommendation opinion court might prevent reduce likelihood recurrence event similar event subject inquest 8 2 making following recommendation court recognises due advent drug used management anticoagulation use warfarin may diminish 8 3 court make followingrecommendations finding recommendation brought attention chief executive officer royal australian college general practitioner chair south australian state committee royal australian college physician president australian medical association sa consideration given revision practice whereby specialist medical practitioner first instance prescribe warfarin expectation general practitioner thereafter manage patient warfarin therapy consideration given issue whether general practitioner advice specialist initiate manage patient warfarin therapy specialist advised place undue reliance patient advising general practitioner warfarin therapy initiated specialist circumstance specialist initiate warfarin therapy intend manage therapy specialist immediately advise patient general practitioner efficient method communication available warfarin therapy initiated general practitioner expected manage therapy regard practice communicating general practitioner way ordinary post curtailed replaced mean communication would include email facsimile transmission communication contain request general practitioner return acknowledge communication may necessary case specialist communicate general practitioner phone case warfarin therapy may indicated general practitioner refer patient specialist advise specialist expect informed initiation warfarin therapy efficient rapid mean available also advise specialist expect copied inr test result obtained specialist medical specialist initiating warfarin therapy also initiate inr testing ensure patient general practitioner copied result inr test general practitioner reminded patient undergoing warfarin therapy display unexplained bleeding especially case inr monitoring conducted satisfactory basis need carefully consider whether patient undergo reversal anticoagulation earliest possible opportunity case doubt general practitioner seek second opinion medical practitioner advised include request form inr testing information relative clinical presentation patient might exhibit consistent possible excessive anticoagulation also include information previous inr testing taken place may case key word warfarin inr monitoring witness whereof said coroner hereunto set subscribed hand andseal 17thday july 2015 deputy state coronerinquest number 2 2015 0051 2013 1 exhibit c2a 2 exhibit c4a 3 exhibit c15 4 exhibit 10 page 25 5 transcript page 91 6 transcript page 92 7 transcript page 99 8 transcript page 62 9 transcript page 64 10 transcript page 71 11 transcript page 20 12 exhibit c17 13 exhibit c11 14 transcript page 171 15 transcript page 137 16 transcript page 174 180 17 transcript page 209 18 transcript page 210 19 transcript page 210 20 transcript page 208 21 transcript page 208 22 transcript page 194 23 transcript page 197 198 24 exhibit c17 page 5 25 exhibit c17a 26 exhibit c18b 27 exhibit c18a 28 transcript page 242 29 transcript page 243 30 transcript page 267 31 transcript page 259 32 transcript page 38 33 transcript page 251 |
Steven Henry Wallace v Downer Connect Pty Ltd [2005] WAIRComm 2910 (27 October 2005).txt | steven henry wallace v downer connect pty ltd 2005 waircomm 2910 27 october 2005 last updated 9 july 2007western australian industrial relation commissionpartiessteven henry wallaceapplicant v downer connect pty ltdrespondentcoramsenior commissioner j f gregordatethursday 27 october 2005file sappl 478 2005citation 2005 wairc 02910resultprogramming discovery andfurther better particularsorderwhereas conference senior commissioner 24thoctober 2005 application order programming discovery better particular made pursuant tosection 27of theindustrial relation act 1979 andwhereas 24thoctober 2005 heard applicant respondent regarding filing serving list witness filing serving list document heard applicant regarding amending claim prior hearing 14thnovember 2005 andwhereas commission decided make order party file commission serve list witness le 7 clear day prior hearing party file commission serve list document le 7 day date order applicant file amended claim close business 4thnovember 2005 respondent file amended answer thereto 10thnovember 2005 therefore commission pursuant power conferred theindustrial relation act 1979 hereby order party file commission serve list witness le 7 clear day prior hearing party file commission serve list document le 7 day date order applicant file amended claim close business 4thnovember 2005 respondent file amended answer thereto 10thnovember 2005 senior commissioner j f gregor |
Ocean Air Apartments [2011] QBCCMCmr 318 (27 July 2011).txt | ocean air apartment 2011 qbccmcmr 318 27 july 2011 last updated 18 august 2011adjudicator orderoffice commissionerfor body corporate community managementcitation ocean air apartment 2011 qbccmcmr 318parties colin heckenberg applicant body corporate respondent lincoln smith helen smith occupier lot 6 affectedpersons scheme ocean air apartment ct 33545jurisdiction section 227 1 b and229 3 thebody corporate community management act 1997 act thebody corporate community management standard module regulation 2008 standardmodule application 0670 2011decision date 27th july 2011decision j underdown adjudicatorcatchwords interim application purporting passing law committee preventing applicant tenant sending receiving delivery course business applicant seek suspend operation new law final outcome determined section 179 180 182act section 167actinterim ordersmade hereby orderthat body corporate may rely resolution committee carried 3rdjune 2011 10thjune 2011 owner occupier shall use part common property type business purpose use new house rule suspended orderthat interim order expires interim order issued application finally determined discontinued upon expiry 12 month date order whichever earliest reason decisionapplication 1 application dated 15thjuly 2011 amended 18thjuly 2011 colin heckenberg applicant owner lot 6 body corporate ocean air apartment ct 33545 body corporate order specific body corporate law law house rule enforceable law unreasonable 2 applicant also seek interim order prevent body corporate taking action law 26 enforce new rule adopted committee committee meeting held 3rdjune 2011 determination application jurisdiction 3 ocean air apartment ct 33545 community title scheme governed thebody corporate community management act1997 |
Bahar & Sohrab [2016] FamCA 627 (21 July 2016).txt | bahar sohrab 2016 famca 627 21 july 2016 last updated 11 august 2016family court australiabahar sohrab 2016 famca 627family law interim costsapplicant m baharrespondent mr sohrabfile number cac1429of2014date delivered 21 july 2016place delivered sydneyplace heard sydneyjudgment watt jhearing date 21 july 2016representationsolicitor applicant farra gesini dunnsolicitor respondent yeend associatesorderswithin 28 day husband pay wife sum 1 500 relation cost associated preparation application case filed 22 june 2016 note form order subject entry order court record notedthat publication judgment court pseudonymbahar sohrabhas approved chief justice pursuant tos 121 9 g thefamily law act 1975 cth note copy court reason judgment may subject review remedy minor typographical grammatical error r 17 02a b thefamily law rule 2004 cth record variation order pursuant r 17 02family law rule 2004 cth family court australia atfile number cac 1429 2014ms baharapplicantandmr sohrabrespondentex tempore reason judgmentthe wife filed application case 22 june 2016 seeking effect order consistent 11 1 b australian passport act 2005 putting aside difficulty way proposed order drafted intent order clear controversy resolved husband providing wife signed document satisfies provision ofs 11 1 theaustralian passport act 2005 controversy resolved prior today event wife seek cost application cannot include today event agreeing husband proposal cost reserved party bear cost relation application wife press application cost basically relying upon husband conduct three request wife made husband consent issuing passport younger child first august 2015 husband give excuse non responsive fact time suffering major depression second march 2016 husband asserts reason failed give consent unsure specific proposal relation wife travel plan couple difficulty proposition matter fact first husband put contest page 16 wife affidavit accurately set part document sent child support agency misrepresents department foreign affair trade done document child support agency say delegate australia foreign minister april 2016 refused issue son australian passport ground concern wife brother intention exploit identity continuing money laundering activity around world annexure e make plain reason dfat issue passport wife application simply unable obtain husband consent issuing passport difficulty evidence given 17 wife affidavit would lead conclusion husband condition consenting passport wanting reconnect way conversation condition providing consent circumstance refused conversation father husband thereafter withheld consent third occasion request made husband consent passport may accept husband lawyer take responsibility breakdown communication client visit blame husband husband served application case filed 26 june 2016 timely way consented result wife attempting achieve application given husband two earlier refusal sign application passport husband pay cost preparation application case affidavit support application make order husband order avoid issue relation assessment cost given lawyer husband agrees wife estimate reasonable cost 1 500 appropriate make order husband within 28 day pay wife sum 1 500 relation cost associated preparation application affidavit filed 22 june 2016 certify preceding twelve 12 paragraph true copy ex tempore reason judgment honourable justice watt delivered 21 july 2016associate date 25 7 16 |
Love v Department of Education (Review and Regulation) (Corrected) [2023] VCAT 123 (9 February 2023).txt | love v department education review regulation corrected 2023 vcat 123 9 february 2023 love v department education review regulation corrected 2023 vcat 123 9 february 2023 last updated 6 march 2023victorian civil administrative tribunaladministrative divisionreview regulation listvcat reference z861 2021catchwordsreview regulation list freedom information act 1982 vic s 25and33 review decision refuse access 22 photo primary school class school applicant attended whether would unreasonable disclose photo name teacher student class whether practicable provide edited copy applicantrobin loverespondentdepartment educationwhere heldmelbournebeforer tang acting senior memberhearing typevideoconference hearingdate hearing25 january 2023date original order reasons9 february 2023date correction order reasons6 march 2023citationlove v department education review regulation corrected 2023 vcat 123orderthe decision public access deputy commissioner made 11 october 2021 refusing access full class photo number 1 6 10 11 14 15 18 20 22 set aside replaced decision photo released part following information disclosed revealed background image text disclose name student teacher b image name teacher student photo whose image name revealed disclosed photo class mr love student note tribunal note applicant longer seek access class photo relating 1998 1999 year photo highlighted annexure reason r tang amacting senior memberappearances applicantmr r love personfor respondentmr batskos solicitororders theopen court act 2013 vic 6 march 2023 tribunal ordered report whole part proceeding information derived proceeding might discloses specific medical condition applicant must published otherwise disclosed order applies throughout australia basis vcat reason decision final order published austlii website may accessed throughout australia order operates death applicant reasonsby application dated 15 october 2021 mr robin love applied review decision refuse access several photo prep grade 1 class 1994 1999 year kangaroo flat primary school school school mr love attended 1994 1997 mr love submitted freedom information foi request department education time known department education training department july 2021 foi request 1 context foi request mr love belief student wrongly held back one year part conspiracy principal artificially inflate class number view keeping school open alleged wrongdoing 20 august 2021 department made decision foi request department decision granting access three school photo 1994 1995 1997 year class included mr love department unable locate photo mr love prep 1 2 class 1996 already copy photo included tribunal book tb page 167 denying access 22 photosfor prep grade 1 class basis image teacher student name exempt release undersection 33of thefreedom information act 1982 vic foi act department decision subsequently confirmed public access deputy commissioner 11 october 2021 padc decision padc decision subject review proceeding hearing mr love indicated longer seek access eight photo relating class 1998 1999 year left school however confirmed continues seek access remaining 14 class photo 1994 1997 year remaining photo section 33 foi act applies exempt document disclose personal affair third party circumstance disclosure would unreasonable mr love accepts image name student teacher personal affair information contends release information unreasonable regarding purpose seek access reason follow determined disclosure remaining photo would beunreasonableto extent photo reveal disclose face name person teacher student mr love class school 1994 1997 however consider would practicable 2 grant access edited copy photo reveals background image eg building landscape text photo disclose name person personal affair information andthe name image certain teacher student disclosure wouldnot unreasonable name principal school photo facial image name teacher student photo whose face name revealed disclosed photo mr love class outline exemption personal affair informationa document exempt section 33 1 foi act includes information relates personal affair person andthe disclosure information would unreasonable information relating personal affair personincludesinformation identifies person discloses address location person identity address location reasonably determined 3 vcat previously decided 4 phrase personal information given wide meaning information concern affect person individual personal information andthe fact information fairly benign deprive information personal character intucker v commissioner state revenue tucker 5 quigley j observed determining whether disclosure personal affair unreasonable involves balancing interest namely individual right personal privacy general right access information foi act honour summarised following matter potential relevance 6 interest applicant information purpose access sought b nature information would disclosed c circumstance information obtained extent possible dissemination information e likelihood material information person concerned would wish disclose without consent f whether information current relevance g whether public interest would promoted release information section 25 foi act document exempt practicable grant access copy deletion make copy exempt document appears applicant would wish access copy agency must grant access copy question practicability regard effort involved whether document still meaningful editing evidence tribunalthe witness give evidence hearing mr gaven sturma team leader department foi unit andmr love set summary evidence mr sturmain examination chief mr sturma confirmed witness statement 4 february 2022 sturma w 7 true correct statement mr sturma asserts 8 time photograph taken applicant family would entitlement purchase copy contain image applicant considered photograph remain private sensitive individual concerned privacy individual concerned ought protected even though student would adult mr sturma go observe withholding access consistent privacy policy department school 9 10 reasonable former staff student expect class photograph taken purpose student family able purchase photograph would used purpose disclosure foi act otherwise former student photograph would reasonably expected referring certain statement made mr love context foi request review padc application vcat 11 including reference mr love tracking victim witness alleged wrongdoing mr sturma suggests 12 palpable risk applicant seek contact people contained photograph pursue allegation department understand substantiated department external organisation modern communication social medium chance applicant pursuing people unnecessarily unreasonably contacting likely considered highly likely individual photograph would consent personal affair information released applicant circumstance highly possible disclosure photograph applicant subsequent unsolicited contact applicant would likely cause number individual stress anxiety embarrassment would clearly contrary privacy interest individual cross examination mr sturma asked statement mr love claim regarding alleged wrongdoing substantiated circumstance mr love asserts department made offer compensation although mr love rejected mr sturma indicated aware offer compensation made department stood comment likelihood mr love contacting student teacher remaining photo response query mr sturma confirmed sought contact student teacher remaining photo ascertain view basis reasonably practicable considered would unreasonable release disclose image name teacher taught class including mr love student class mr love basis moved different class mr love information solely relates individual mr love entitlement photo nothing andasserted assessing likelihood teacher student would object disclosure information photo weight given mr love word past see 16 suggested people might alarmed brought matter mr love apparently pursuing 20 year examination mr sturma confirmed received consent people remaining photo personal affair information released mr love mr lovemr love file witness statement proceeding however made various statement context foi request ongoing interest remaining photo also gave evidence background context mr love foi request set complaint form mr love sent information commissioner regarding failure department locate photo 1996 prep 1 2 class 13 document mr love suggests corruption former school principal involving inappropriate grade retention student inflate number student school keep open never investigated mr love claim raising matter department fraud corruption unit 2019 acknowledgement psychological trauma disability leading offer compensation however say rejected offer department refused investigate matter publicly acknowledge occurred seeking separate submission information commissioner 14 mr love explains sought access class photo foi regard mention 2020 made request name student prep grade 1 1992 1998 department told request invalid presumably basis class list longer held decided seek information obtaining class photo instead mr love claim photo would provide photographic evidence crime show department suppressed covered mr love explains prior making foi request sought copy photo company took school known victim attempt unsuccessful varying reason mr love also asserts instead issued subpoena document course would pose higher risk photo going missing going foi unit evidence tribunal mr love added following reason pursuing remaining photo information applicant medical condition redacted accordance order theopen court act 2013 vic made 6 march 2023 would able provide photo investigative body pursue allegation misappropriation government money mr love denied intention contacting anyone remaining photo answer question mr love confirmed medical evidence suggest provided access photo therapeutic benefit suggested would able obtain evidence would wish shared department received verbal written consent victim reluctant provide information threat suggests received solicitor representing department desire protect victim conduct although considers photo 1996 prep 1 2 class provides proof alleged wrongdoing continues seek access remaining evidence evidence better added person impacted alleged wrongdoing suggesting 60 child attended school dozen held back submissionsdepartment submissionsin written submission department set number principle contends relevant proceeding including name individual comprises information relating personal affair including agency officer teacher 15 person appearance including face discloses part person identity information relating personal affair person 16 consideration whether disclosure information unreasonable requires consideration disclosure release particular applicant albeit potential disclosure applicant world large relevant 17 purpose applicant seek disclosure relevant consideration 18 disclosure le likely unreasonable applicant motif commendable likely unreasonable applicant reason seeking access particular personal crusade 19 impracticability notifying person identified document consequent inability person express concern may disclosure information relevant 20 department submits disclosure remaining photo would unreasonable taking account following matter 21 likelihood mr love attempting contact individual photo pursue allegation department knowledge substantiated regulatory investigatory body part particular personal crusade sensitivity photo closing mr batskos observed photo junior student prep grade 1 sensitive notwithstanding age student need protect privacy individual circumstance practicable contact seek view likelihood individual would consent disclosure given limited purpose photo taken limited distribution time likelihood individual would reasonably expect department release class photograph former student class concerned expectation former student teacher would information kept private confidential line department policy guideline privacy legislation absence public interest disclosure contrast applicant private interest potential disclosure seen arbitrary interference privacy individual concerned closing submission mr batskos noted mr love accepted disclosure 1998 1999 photo would unreasonable basis related photo class taken left school mr batskos observed despite fact student teacher 1998 1999 photo might shared class mr love school mr batskos suggested issue respect unreasonableness arose photo class period mr love school term reason proffered mr love seeking access mr batskos observed medical evidence support disclosure photo therapeutic benefit mr love contrary counter intuitive someone suffering trauma associated schooling would want remember time logical connection established access photo acknowledgement apology mr love seek department extent mr love made request test whether department would refuse photo class included provided three photo class attended copy fourth provision access remaining photo would assist purpose extent mr love wish assist victim could seek access class photo applicant assume role crusader behalf others particularly without consent noting evidence tribunal verbal consent concerned mr love previously indicated tracked victim said raise serious question motivation purpose extent mr love wish provide evidence alleged wrongdoing investigatory body body extensive coercive power access information noting written material mr love also raised another purpose ensure photo retained 22 mr batskos submitted way determine mr love true purpose event insufficient evidence suggest purpose would met disclosure photo mr love submissionsit apparent time writing submission mr love labouring misapprehension denied document 1996 class photo 23 document include one class photo 1996 relates grade 1 2 clearly different class prep 1 2 class depicted photo mr love already nevertheless mr love considers absence photo suspicious consistent department failure provide redress respect alleged wrongdoing generally mr love contends disclosure remaining photo might cause stress anxiety harm interest department stress anxiety irrelevant disclosure would cause stress anxiety individual depicted photo harm interest 24 contrary mr love submits denial access prevent victim receiving redress likely causing stress anxiety 25 denying access basis would use photo potential litigation evidentiary purpose acknowledgement fact department withholding evidence crime abuse prevent fair trial investigation 26 fact already photo 1996 prep 1 2 class negates department baseless assertion applicant would pursue contact third party identified photograph 27 department able provide school yearbook requested located exact information class photo could provided foi act year attended school 28 closing mr love suggested last two year already tracked people need contact teacher school council member like rather victim submitted false suggest would seek contact teacher student photo observing evidence done rather victim contacted merely best help seek justice good person opposed pursuing personal crusade department suggests said understand character judged mr love submitted integrity body investigate without evidence provision remaining photo presumably turn body would help choose whether investigate alleged wrongdoing analysisdo remaining photo contain personal affair information section 33 9 foi act provides information relating personal affair person includes information identifies person person identity reasonably determined accept department submission name image teacher student remaining photo information identify would enable identity determined therefore personal affair information consider background photo presumably location around school personal affair information similarly photo contain text name school relevant year relevant class consider personal affair information particular student teacher event already revealed mr love proceeding 29 would disclosure personal affair information contained remaining photo unreasonable turning consideration identified quigley j intucker interest applicant information purpose access sought mr love proffered number reason seek access remaining photo based evidence consider main reason gather evidence child held back class order buttress claim regarding alleged wrongdoing absence independent health evidence accept proposition provision photo would enable mr love bring back good memory time school provision photo reveals student also held back simply confirm view victim corrupt activity would good memory would query potential impact mr love photo support theory also unable accept provision photo necessary enable investigatory body determine whether corrupt conduct ought investigated mr love assertion around 20 student school subject inappropriate grade retention see 25 could largely supported examination photo already ie class victim contacted could seek photo class required establish systemic issue school department submission reference made case ofgunawan v department education gunawan 30 case concerned review decision refuse access document relating investigation teacher alleged engaged abuse child tribunal member observed 31 disclosure le likely unreasonable applicant motif commendable disclosure likely unreasonable applicant reason seeking access particular personal crusade purpose embarrassing otherwise harming third person concerned light fact teacher acquitted tribunal member wasnotsatisfied applicant motif seeking publicly expose allegation outcome investigation commendable similarly mr love entitled pursue claim regarding alleged wrongdoing commendable seek draw others raised similar concern may interest matter whether subject grade retention b nature information would disclosed accept department submission photo primary school child inherently sensitive sensitivity necessarily diminishes people become adult also accept people would wish maintain privacy control release information reveals identity third party c circumstance information obtained photo taken school third party likely basis child required participate parent choice purchasing photo child class evidence suggest photo made publicly available eg someone sharing social medium extent possible dissemination information evidence suggest mr love seek publish photo online public large however accept substantial risk seek locate approach student disseminate information others investigatory body identifies subject grade retention e likelihood material information person concerned would wish disclosed without consent accept department submission teacher student photo unlikely consent disclosure information mr love regard except unnamed victim mr love suggested approached may may photo nothing suggest majority student photo raised similar concern would interest pursuing alleged wrongdoing even subject grade retention contrary mr love submission consider real possibility bringing matter many year passed would cause student distress anxiety appears done mr love mr love indicated made contact relevant teacher identified spoken unlikely teacher would remember much event question wish drawn claim mr love department many year later f whether information current relevance consider although photo around 25 year old would still relevance extent evidence practice grade retention school g whether public interest would promoted release information although mr love indicated already raised concern alleged wrongdoing investigatory body approached victim although identified evidence suggest broad public interest matter raise would promoted release information side coin accept general public interest maintaining personal privacy teacher student primary school regard foregoing analysis find would unreasonable disclose name image teacher student remaining photo thanthe name image teacher student taught shared class mr love school well name principal latter regard mr love already name teacher student well principal nothing stop approaching already minded see unreasonable release information similarly doubt change teacher student physical appearance year year disclosure later photo reveal anything new different identity would make disclosure unreasonable redacted version photo released satisfied would practicable department undertake cross referencing exercise identify teacher student remaining photo teacher student identified photo mr love class redact image name student example examined photo number 4 1997 year 1 rb reveals teacher integration aide class also taught 1996 prep 1 2 class mr love attended similarly three student one side teacher ninth student middle row also 1996 prep 1 2 class whether done manually software used medium company showing school photo consider would difficult exercise black image name 22 student class consider although redacted photo might reveal name many teacher student would render meaningless mr love could still consider information working whether student class school subject grade retention indeed provision information may stop mr love approaching fellow student subject grade retention also satisfied mr love indicated willingness receive redacted copy photo indicated one stage hearing might willing accept photo name teacher student redacted r tang amacting senior memberannexure list photograph disputeno year description1996 grade 1 2 room 131997 year 1 2 room 141997 year 1 2 ra1997 year 1 2 rb1997 year prep room 11997 year prep room 21998 year 1 21998 year 1 2 room 121998 year 1 2 c1994 grade 11994 prep 21998 year prep1998 year prep b1995 prep rm 11995 prep rm 11999 prep room 101999 prep room 111995 grade1 2 rm 121995 grade1 2 rm 131994 grade1 2 rm 141999 grade 1 2 room 151994 grade1 2 rm 13note highlighted item longer sought applicant 1 part request mr love also sought copy yearbook containing information department unable find document satisfying part request also made separate request material relating complaint department school subsequently abandoned request 2 foi act 25 3 foi act 33 9 4 marke v department justice regulation 2019 vcat 479 43 5 2019 vcat 2018 6 ibid 150 7 tb 132 158 including attachment exhibit r 1 8 sturma w 18 9 ibid 19 10 ibid 20 11 ibid 21 12 ibid 23 25 13 tb 157 hearing mr love confirmed gist explanation correct although since discovered detail name principal erroneous 14 tb 107 108 15 respondent statement legal contention dated 4 february 2022 rslc 2 5 16 ibid 2 7 17 ibid 2 11 b citingvictoria police v marke 2008 vsca 218 99 18 ibid 2 13 g 19 ibid 2 13 b citinggunawan v department education 1999 vcat 665 20 ibid 2 13 f citingwillner v dept economic development job training resource 2015 vcat 669 28 21 ibid 2 14 22 applicant point claim dated 4 february 2022 apoc 29 23 apoc 12 24 ibid 14 2 1 25 ibid 14 2 2 14 3 1 26 ibid 17 2 27 ibid 20 2 28 ibid 29 29 see list photograph dispute tb 181 30 1999 vcat 665 31 ibid 17 |
Dufty and Comcare [2008] AATA 1103 (10 December 2008).txt | dufty comcare 2008 aata 1103 10 december 2008 last updated 11 december 2008administrative appeal tribunaldecision reason decision 2008 aata 1103administrative appeal tribunal 200500119general administrative division redonna duftyapplicantandcomcarerespondentdecisiontribunalj w constance senior memberdr p wilkins mbe memberdate10 december 2008placecanberradecisionthe reviewable decision comcare made 3 may 2005 relating m dufty claim compensation pursuant tosection 24of thesafety rehabilitation compensation act 1988 cth set aside substitution decision set aside decided comcare liable pay m dufty compensation pursuant tosection 24of thesafety rehabilitation compensation act 1988 cth respect injury headache arose employment centrelink 22 november 2002 degree whole person impairment resulting injury referred preceding sub paragraph 10 comcare liable pay m dufty amount compensation pursuant tosection 24of thesafety rehabilitation compensation act 1988 cth respect injury cervical cervicodorsal myalgia party liberty apply within 14 day relation cost application made comcare shall pay cost proceeding incurred m dufty signed j w constance senior membercatchwordscompensation two separate injury permanent impairment whether applicant suffered impairment permanent degree impairment decision set aside safety rehabilitation compensation act 1988 cth s 4 24abrahams v comcare 2006 fca 1829canute v comcare 2006 hca 47dufty comcare 2008 aata 1011reasons decisionintroductionin application m dufty seeking review decision comcare made 3 may 2005 decision comcare refused claim compensation injury claimed resulted permanent impairment claim made undersection 24of thesafety rehabilitation compensation act 1988 cth related several sprain injury suffered m dufty fall november 2002 comcare previously accepted liability compensate m dufty respect sprain injury letter 15 august 2006 m dufty lodged claim injury claimed suffered fell injury included cervical cervicodorsal myalgia headache myalgia claimed separate injury headache 10 november 2009 decided 16 december 2004 date decision m dufty ceased suffer effect sprain injury decided also m dufty suffered continued suffer cervical cervicodorsal myalgia headache claimed application review decision relating injury ceasing compensation payment respect previously accepted injury claim compensation permanent impairment heard together delayed making decision relation permanent impairment claim give party opportunity make submission submission sought tribunal jurisdiction make decision relation permanent impairment resulting myalgia headache considered appropriate claim permanent impairment made year claim injury respect compensation permanent impairment sought party submitted tribunal jurisdiction decide permanent impairment claim satisfied jurisdiction m dufty referred headache myalgia original permanent impairment claim formthis accordance principle set federal court inabrahams v comcare 2006 fca 1829 many fact upon reached decision application set reason decision published application a2005 118 2007 327 reference 2008 aata 1011 reason read conjunction already issued unless otherwise stated additional finding fact based evidence m dufty satisfied fact found balance probability legislative frameworkthe relevant provision act follows 24 compensation injury resulting permanent impairment 1 injury employee result permanent impairment comcare liable pay compensation employee respect injury 2 purpose determining whether impairment permanent comcare shall regard duration impairment b likelihood improvement employee condition c whether employee undertaken reasonable rehabilitative treatment impairment relevant matter 5 comcare shall determine degree permanent impairment employee resulting injury provision approved guide 6 degree permanent impairment shall expressed percentage 7 subject tosection 25 b comcare determines degree permanent impairment le 10 amount compensation payable employee section issue decisionthe issue decision relation injury m dufty suffered impairment permanent degree impairment consideration myalgia injuryhas m dufty suffered impairment permanent impairment defined act mean loss loss use damage malfunction part body bodily system function part system function 1 satisfied pain restriction movement neck found m dufty suffers impairment malfunction loss use part body accepted m dufty evidence suffered condition albeit varying degree severity since accident also take account dr griffith examined m dufty march 2008 reported continued suffer myalgia may persist year 2 basis evidence satisfied m dufty suffer impairment permanent considered impairment continued since november 2002 continuing taken account also based dr griffith opinion unlikely substantial improvement m dufty condition year satisfied m dufty undertaken reasonable rehabilitative treatment reached conclusion basis m dufty evidence treatment undertaken satisfied treatment could assist m dufty degree permanent impairment table 9 6 set degree impairment relation spine minor restriction movement cervical spine attract 5 whole person impairment rating next higher rating 10 loss half normal range movement m dufty gave evidence pain turning head right swimming initial need assessment report dated 5 june 2003 m trevenar occupational therapist reported bad day neck stiff painful 3 dr griffith first examined m dufty january 2004 reported time cervical region persisting stiffness painful restriction movement turning right lateral flexion 4 march 2008 dr griffith measured m dufty cervical movement listed report 11 april 2008 show loss 55 degree movement possible 340 degree assessed minor restriction 5 examined september 2004 professor nade reported identified slight restriction range movement m dufty neck 6 although professor opinion likely result spondylosis confirm existence restriction movement time evidence referred satisfied m dufty suffered 5 whole person impairment respect cervical cervicodorsal myalgia injury applyingsubsection 24 7 act compensation payable consideration headache injuryhas m dufty suffered impairment permanent found since accident m dufty continued suffer frequent severe headache prior accident take medication relieve headache also experience relief physiotherapy applying provision act already referred satisfied headache suffered m dufty impairment satisfied headache continued period six year since accident continuing evidence u satisfied reasonable likelihood condition improve foreseeable future satisfied m dufty undertaken reasonable rehabilitative treatment respect condition satisfied headache resulted permanent impairment m dufty degree permanent impairment since accident m dufty suffered headache twice per week migraine every 4 6 week prior accident suffered headache approximately twice per year migraine headache per year basis evidence satisfied attack occur 12 time per year cause minor interference activity daily living table 13 1 guide equates 10 whole person impairment compensation payable m dufty undersection 24of act combined value chart applicable counsel m dufty argued injury related neck appropriate apply combined value chart included guide however clear fromsection 24that permanent impairment assessed permanent impairment arises injury rather combination one injury whenaninjury result one impairment value added combined using combined value table 7 case claim made m dufty behalf two separate injury decided suffered two separate injury situation impairment injury separately assessed assessment combined incanute v comcare 8 high court emphasised comcare liability pursuant tos 24 1 arises respect injury result permanent impairment 9 later court said guide approached prism injury 10 decisionthe reviewable decision comcare made 3 may 2005 relating m dufty claim compensation pursuant tosection 24of thesafety rehabilitation compensation act 1988 cth set aside substitution decision set aside decided comcare liable pay m dufty compensation pursuant tosection 24of thesafety rehabilitation compensation act 1988 cth respect injury headache arose employment centrelink 22 november 2002 degree whole person impairment resulting injury referred preceding sub paragraph 10 comcare liable pay m dufty amount compensation pursuant tosection 24of thesafety rehabilitation compensation act 1988 cth respect injury cervical cervicodorsal myalgia party liberty apply within 14 day relation cost application made comcare shall pay cost proceeding incurred m dufty certify the35preceding paragraph true copy reason decision herein ofmr j w constance senior member signed peter horobinassociatedate hearing 1 2 4 september 2008date decision 10 december 2008counsel applicant david richardssolicitor applicant jonathon mayslater gordon inc garry robb assoc counsel respondent philip walkersolicitor respondent kate watsonaustralian government solicitor 1 section 4 2 ex a6 3 ex r7 4 ex a2 5 ex a6 6 ex r13 7 guide assessment degree permanent impairment p 5 8 2006 hca 47 9 para 8 10 para 15 |
JAMES LEONARD SOUTHWELL v NOMINAL DEFENDANT No. SCGRG 91_2112 Judgment No. 4512 Number of pages - 19 Damages - insurance [1994] SASC 4512 (20 April 1994).txt | james leonard southwell v nominal defendant scgrg 91 2112 judgment 4512 number page 19 damage insurance 1994 sasc 4512 20 april 1994 court full court supreme court south australia matheson 1 prior 2 olsson 3 jj cwds damage measure remoteness damage action tort appeal award future economic loss appellant struck unidentified vehicle sustaining injury right knee later independently developed arthritis knee whilst remained symptomatic arthritis main disabling factor arthritis remission time trial possible recurrence arthritis non compensable contingency award increased particularly light young age 35 appellant insurance third party liability insurance proceeding nominal defendant cross appeal refusal dismiss claim failure comply s115motor vehicle act whether due inquiry search ritual futile step required whether notice claim soon reasonably practicable nominal defendant unable establish prejudice arising delay giving notice motor vehicle act 115 jobling v associated dairy limited 1981 ukhl 3 1982 ac 794 walker v briddon king cj 1 september 1986 unreported plesa v griffith 1977 15 sasr 434 applied hrng adelaide 9 march 1994 date 20 4 1994 counsel appellant mr n niarchos solicitor appellant niarchos co counsel respondent mr c robertson solicitor respondent piper alderman order appeal allowed cross appeal dismissed judge1 matheson j 12 september 1988 appellant sustained serious permanent injury right knee struck unidentified motor vehicle car park sued respondent appeal assessment master court 80 000 future loss earning capacity assessment complicated fact late 1989 appellant developed rheumatoid arthritis joint learned master made comprehensive finding fact relation appellant injury relation rheumatoid arthritis appellant challenge finding 2 assessment made 19 october 1993 appellant would 35 year age 11 december 1993 somewhat chequered work record undertook spray painting course tafe college elizabeth 1987 employed gmh spray painter october 1987 date accident several month accident attempted resume work lasted day worked since work spray painter consisted working production line team spray painting new vehicle work performed standing position would move squat bend carry spray painting procedure reached first year secondary education left half way year aged fifteen year repeated couple year primary school learned master concluded would unable retrain clerical work referring evidence three orthopaedic surgeon learned master concluded ignoring effect rheumatoid arthritis appellant would unable return previous work spray painter would restricted semi sedentary position honour referred evidence rheumatologist said clear evidence significant period prior trial plaintiff disabled rheumatoid arthritis extent even sustained knee injury would able work evidence also relevant future economic loss opinion expressed likelihood otherwise rheumatoid arthritis recurring basis evidence plaintiff wife shortly refer opinion expressed rheumatologist find late 1989 late 1992 plaintiff disabled onset continuance condition rheumatoid arthritis period october 1992 date trial find plaintiff rheumatoid arthritis quiescent working incapacity attributable injury right knee find plaintiff precluded carrying light work sedentary nature october 1992 date trial result disability caused right knee injury experienced september 1988 however must take account probable would taken plaintiff time could enter work force october 1992 possible may able obtain continuous employment october 1992 date trial future find balance probability result disability experienced plaintiff referrable condition right knee permanently precluded light sedentary work lack education difficulty experienced school lead believe future able obtain work clerical nature therefore limited light work unskilled nature remainder working life evidence given plaintiff would ceased work injured suffered rheumatoid arthritis infer would worked least 60 year age draw inference fact plaintiff work record prior incident september 1988 disclosed history intermittent work although accept plaintiff evidence obtained qualification spray painter enjoyed work gmh therefore consider although previous work history may spasmodic probable would continued full time employment remainder working life subject course possibility retrenchment must also take account considering future economic loss fact plaintiff cured condition rheumatoid arthritis abundantly clear medical evidence may recur future rheumatologist gave evidence regard accepting evidence find established balance probability possible rheumatoid arthritis may recur within next 5 year probable condition recur 5 10 year recurrence plaintiff condition find least disabling first occurred reasonable possibility condition brought control medication possibility later year may occur find extent condition occurs future disable plaintiff unable carry light sedentary work independently remaining disability right knee caused trauma september 1988 3 finally honour said future loss earning capacity plaintiff submitted apply multiplier 799 current net weekly loss earnings sustained plaintiff 464 15 allow contingency whilst many case approach produce reasonably satisfactory result limited assistance matter many imponderable multiplier 799 based calculation age 65 whereas think plaintiff would probably worked beyond aged 60 plaintiff also residual working capacity consider much significance would able work clerical nature open labour market unlikely would future obtain work light unskilled nature circumstance consider damage future loss earning capacity assessed sum 80 000 4 assessment future loss earning capacity always difficult necessarily imprecise especially difficult appellant supervening rheumatoid arthritis joint fact finally cured given matter anxious consideration concluded 80 000 manifestly inadequate 5 time assessment appellant would earning 464 15 net per week spray painter gmh counsel appellant pointed 80 000 represents approximately three year four month loss earnings acknowledge present value 464 15 per week period would substantially le 80 000 nevertheless consider argument persuasive 6 next honour entirely consistent appellant working life one place say infers would worked least 60 year age towards end judgment say think plaintiff would probably worked beyond aged 60 accepting suppose must latter opinion consider nevertheless weighing contingency allowance must made real possibility would worked beyond 60 multiplier australian life table man purpose aged 35 786 age 65 730 age 60 choice make significant difference finally stress plaintiff comparative youth inexorable advance medical science consider allowance made favourable contingency better drug better treatment effectively control appellant rheumatoid arthritis recurs 7 circumstance would allow appeal increase allowance future loss earning capacity 120 000 far cross appeal concerned agree reason given prior olsson jj dismissed judge2 prior j appellant successfully sued respondent damage appeal amount awarded future economic loss said manifestly inadequate respondent challenge judgment ground due inquiry search identity vehicle causing appellant loss made notice claim given soon reasonably practicable became apparent identity vehicle readily ascertainable motor vehicle act 1959 s115 1 b 3 4 2 12 september 1988 appellant walking carpark struck unidentified motor vehicle sustained injury right knee accident developed rheumatoid arthritis number joint indeed late 1989 late 1992 disabled condition unable work date trial appellant 35 year age working spray painter general motor holdens previously worked various low skilled job left school age 15 judgment master court referred evidence three rheumatologist saying material difference evidence considered whole master said finding conclusion important particularly question damage economic loss past future clear evidence significant period prior trial plaintiff disabled rheumatoid arthritis extent even sustained knee injury would able work evidence also relevant future economic loss opinion expressed likelihood otherwise rheumatoid arthritis recurring basis evidence plaintiff wife shortly refer opinion expressed rheumatologist find late 1989 late 1992 plaintiff disabled onset continuance condition rheumatoid arthritis period october 1992 date trial find plaintiff rheumatoid arthritis quiescent working incapacity attributable injury right knee find plaintiff precluded carrying light work sedentary nature october 1992 date trial result disability caused right knee injury experienced september 1988 however must take account probable would taken plaintiff time could enter work force october 1992 possible may able obtain continuous employment october 1992 date trial future find balance probability result disability experienced plaintiff referrable condition right knee permanently precluded light sedentary work lack education difficulty experienced school lead believe future able obtain work clerical nature therefore limited light work unskilled nature remainder working life evidence given plaintiff would ceased work injured suffered rheumatoid arthritis infer would worked least 60 year age draw inference fact plaintiff work record prior incident september 1988 disclosed history intermittent work although accept plaintiff evidence obtained qualification spray painter enjoyed work gmh therefore consider although previous work history may spasmodic probable would continued full time employment remainder working life subject course possibility retrenchment must also take account considering future economic loss fact plaintiff cured condition rheumatoid arthritis abundantly clear medical evidence may recur future rheumatologist gave evidence regard accepting evidence find established balance probability possible rheumatoid arthritis may recur within next 5 year probable condition recur 5 10 year recurrence plaintiff condition find least disabling first occurred reasonable possibility condition brought control medication possibility later year may occur find extent condition occurs future disable plaintiff unable carry light sedentary work independently remaining disability right knee caused trauma september 1988 3 reviewing evidence appellant wife master said 1 relation past loss earning capacity fact plaintiff experienced pain disability right knee date accident date trial independently onset condition rheumatoid arthritis b 3 year period referred condition rheumatoid arthritis constituted main disabling factor consequence disease compensable c since october 1992 rheumatoid arthritis remission consequently pain disability experienced plaintiff referrable knee injury 2 relation future loss earning capacity reasonable prospect rheumatoid arthritis remain acquiescent 5 year b likely 5 10 year rheumatoid arthritis recur disabling beyond disablement solely attributable injury right knee 4 assessment past economic loss master agreed submission take account appellant disabled period three year onset continuation rheumatoid arthritis making allowance factor awarded 40 000 past loss earning capacity said future loss earning capacity plaintiff submitted apply multiplier 799 current net weekly loss earnings sustained plaintiff 464 15 allow contingency whilst many case approach produce reasonably satisfactory result limited assistance matter many imponderable multiplier 799 based calculation age 65 whereas think plaintiff would probably worked beyond aged 60 plaintiff suffers rheumatoid arthritis presently quiescent may occur within next 5 year view medical evidence probably recur within next 5 10 5 year recur least disabling initially mean plaintiff subject period unemployment future uncertain possibly long duration due cause relevant injury sustained september 1988 earlier set finding reason relation factor taken account assessing future loss plaintiff also residual working capacity consider much significance would able work clerical nature open labour market unlikely would future obtain work light unskilled nature circumstance consider damage future loss earning capacity assessed sum 80 000 5 appellant submits assessment 80 000 represents approximately three year four month loss earnings appellant net weekly economic loss time trial manifestly inadequate entirely erroneous assessment damage future economic loss respondent submitted circumstance assessment manifestly inadequate submitted sufficient evidence master find appellant condition rheumatoid arthritis unrelated injury suffered appellant arising accident condition may recur five year probably would recur five ten year disabling appellant would able carry work light sedentary work independently remaining disability right knee due accident put rheumatoid arthritis supervening condition respondent liable compensate appellant jobling v associated dairy ltd 1981 ukhl 3 1982 ac 794was relied upon case supervening illness overtook plaintiff way connected accident plaintiff claimed damage principle case properly applied master respect claim past economic loss seem directly applicable respect future respondent liability case confined effect injury sustained accident liability extend disability result pre existing condition alone disability would supervene irrespective occurrence accident particular respondent liable impairment working capacity would supervene irrespective occurrence accident king cj walker v briddon unreported full court 1 9 86 6 passage quoted master judgment master accepted acted upon evidence dr begg consistent demand malec v jc hutton pty ltd 1990 hca 20 1990 169 clr 638 established high degree probability within five ten year appellant would lost capacity earn rheumatoid arthritis irrespective injury sustained car accident upon basis assessment master correct objection taken appeal incorrect amount assessed seems adequate certainly manifestly inadequate calling interference court 7 remains issue raised cross appeal evidence accident appellant went carpark several occasion see could identify vehicle also asked friend mr dixon keep look car dixon waiting appellant accident occurred gave evidence seeing car able take number appellant reported incident employer police advertisement placed newspaper september 1989 four month solicitor instructed relation incident argued master submitted cross appeal appellant failed make due inquiry search given report incident security officer carpark night injury master said difference reporting third party incident taken place making inquiry identity vehicle unless clear reporting incident gmh security might assist ascertaining identity vehicle point making report purpose due search inquiry section 115 matter accident reported plaintiff employer investigation undertaken produce result 8 another matter relied upon appellant pursue possible witness master said even attempt made locate others carpark night question would led obtaining relevant information respect failure report incident police master opinion even matter reported police inquiry police would obtained relevant information contention due search inquiry made rejected master said apart knowing make approximate model vehicle plaintiff borrow bray cj plesa v griffith without clue inquiry made beyond actually carried would futile ritualistic find fact plaintiff made due search inquiry 9 counsel challenge proposition summarised present chief justice plesa v griffith 1977 15 sasr 442 443 within proposition present chief justice point whether due inquiry search occurred question fact affirmative finding one court appeal rarely able set aside think plaintiff inquiry described fairly bare nonetheless seem consistent observation bray cj plesa case satisfy statute demand given finding master also complained notice appellant claim given nominal defendant soon reasonably practicable became apparent identity vehicle readily ascertainable justice case required court dismiss action nominal defendant prejudiced conduct defence appellant case ascertained would unable identify driver car time first arthroscopy october 1988 notice given eight month later master satisfied balance probability nominal defendant prejudiced conduct defence failure said view probability even plaintiff reported incident nominal defendant day occurred defendant would able obtain information would altered course defence proceeding eye witness incident plaintiff mr dixon unable identify vehicle consider step defendant may taken even notified day accident would probably produced negative result obtained plaintiff 10 see proper basis upon court interfere finding master appeal cross appeal dismissed judge3 olsson j full court appeal cross appeal relation judgment damage entered master court 19 october 1993 favour plaintiff shall refer plaintiff first instance appellant defendant respondent appellant complains quantum damage awarded future economic loss manifestly inadequate whilst respondent asserts learned master fell error declining dismiss action virtue alleged failure appellant satisfy requirement section 115 motor vehicle act 1959 act 2 appellant brought action respondent nominal defendant act relation injury allegedly sustained 11 55 pm 12 september 1988 pedestrian car park situated within premise general motor holdens automotive limited gmh struck dark brown hj holden motor vehicle disputed appellant struck sustained significant personal injury 3 common ground relevant time appellant employed gmh spray painter elizabeth plant afternoon shift finished 11 40 pm driven work fellow employee adrian dixon return home 4 arrival prior commencement shift dixon vehicle parked southern car park gmh complex portion set aside afternoon shift worker gate northern boundary car park afforded pedestrian access plant 5 conclusion shift 12 september 1988 appellant walked back gate turned left open aisleway car park either side parked car making way back dixon car parked 6 walking easterly direction noticed car ahead right headlight engine running car unidentified car parked rear away aisle could drive straight forward parked position 7 whilst one vehicle distant car appellant observed interior light number person inside noted ornamental device suspended internal rear vision mirror fitting thought person driver seat might italian extraction although learned master prepared accept valid proposition first saw driver latter appeared kneeling front seat twisted around speaking rear passenger seemed middle aged person light grey hair 8 appellant continued walk forward normal pace almost past unidentified vehicle felt impact right knee spun around clockwise direction experienced great deal pain bent gripped knee hand whilst looked saw unidentified car travelling westerly direction along aisle vehicle stop one stage appellant noted rear window front passenger turned around front seat pointing back 9 although appellant attempted read registration number unidentified car far away able time appellant handicapped severe pain effectively could observe car exit gateway john rice avenue 10 known independent eyewitness impact time appellant swore loudly adrian dixon actually car heard noise could well appellant exclamation lost sight unidentified car appellant managed assistance walk dixon vehicle east 11 dixon called witness said got vehicle appellant sitting heard noise right looking saw appellant bent hand clutching right knee time dixon saw must unidentified car 200 metre west position could read registration number distance dixon thought car gold brown colour hj hx model 12 dixon got vehicle walked forward assist appellant saw unidentified vehicle proceed car park although considerable movement vehicle 13 joined appellant dixon told happened debate model vehicle dixon insisted hj model 14 learned master accepted narrative outlined 15 another employee one mcateer told learned master concluded duty walked car park time must immediately impact approached appellant dixon asked seen occurred replied seen anything 16 fact outlined learned master hesitation finding negligence proved driver unidentified car found basis concluding appellant guilty contributory negligence felt action reasonable prudent circumstance 17 following accident appellant experienced significant symptomatology right knee sought obtained medical assistance learned master carefully analysed evidence score reason decision need retrace ground detail 18 task learned master proceeding assessment complicated medical evidence history appellant exhibited rheumatoid arthritis attributable impact late 1989 successfully treated called gold medication quiescent time trial however disabled arthritis late 1989 late 1992 varying degree extent would unable continue employment period 19 leaving aside moment significance arthritis learned master confronted lack unanimity expert medical witness precise nature initial injury appellant right knee sequela clearly october 1988 arthroscopic examination revealed defect medial femoral condyle articular surface patella seems led development secondary synovitis whatever may true technical situation learned master summed practical situation term appeal book p623 day following incident go work pain swelling right knee mentioned previously saw general practitioner 14th september 1988 remained work number month pain disability right knee said level pain became worse period time incident swelling increased prolonged standing bending take medication relieve pain several month incident attempted resume work able last 1 day worked since said locking sensation knee occurred october 1988 pain right knee constant could walk difficulty knee starting give way referred evidence 3 arthroscopy undertaken also said underwent physiotherapy treatment time time temporary relief obtained saw rehabilitation counsellor m v antoniadis view returning workforce attempt regard unsuccessful accept plaintiff generally wanted enter workforce combination injury right knee later onset rheumatoid arthritis unable 20 course trial learned master received good deal evidence bearing arthritis manifested post accident significance situation point view assessing quantum damage 21 became common ground onset condition late 1989 could medical term attributed accident independent origin 22 issue past loss economic capacity master highlighted factor plaintiff experienced pain disability right knee date accident date trial independently onset condition rheumatoid arthritis 3 year period referred condition rheumatoid arthritis constituted main disabling factor consequence disease compensable since october 1992 rheumatoid arthritis remission consequently pain disability experienced plaintiff referrable knee injury hand felt probability arthritis would recur within 5 10 year important future would probably disabling beyond disablement solely attributable injury right knee 23 bearing feature mind learned master reasoned fashion appeal book pp627 8 future loss earning capacity plaintiff submitted apply multiplier 799 current net weekly loss earnings sustained plaintiff 464 15 allow contingency whilst many case approach produce reasonably satisfactory result limited assistance matter many imponderable multiplier 799 based calculation age 65 whereas think plaintiff would probably worked beyond aged 60 plaintiff suffers rheumatoid arthritis presently quiescent may occur within next 5 year view medical evidence probably recur within next 5 10 year recur least disabling initially mean plaintiff subject period unemployment future uncertain possibly long duration due cause relevant injury sustained september 1988 earlier set finding reason relation factor taken account assessing future loss plaintiff also residual working capacity consider much significance would able work clerical nature open labour market unlikely would future obtain work light unskilled nature circumstance consider damage future loss earning capacity assessed sum 80 000 24 appellant complains manifestly inadequate reflects erroneous appreciation situation clearly established evidence accepted particular mr niarchos counsel appellant drew attention feature evidence plaintiff earning capacity reduced injury suffered accident residual working capacity much significance permanently precluded light sedentary work remainder working life reason injury could work clerical nature open labour market unlikely would future obtain work light unskilled nature employment could carry reason injury aged 35 year trial would worked least 60 year age nett weekly loss earnings 464 15 per week condition rheumatoid arthritis suffered following accident effectively treated time trial reasonable prospect remaining quiescent five year given likely recur within next five ten year reasonable probability rheumatoid arthritis recurs brought control medication possibility may occur extent rheumatoid arthritis recurs controlled disable plaintiff light sedentary work mr niarchos pointed evidence dr cleland treating rheumatologist effect whilst arthritis could well recur 5 10 year may ground guarded optimism appellant could remain good health reasonable period 25 moreover dr cleland deposed range novel treatment investigation horizon may well important impact upon future treatment type condition event said unusual able achieve control implementing original regime former successful drug control 26 dr begg rheumatologist called respondent really dissent proposition conceded quite possible recurring arthritis continue respond gold medication indefinitely many year although general term felt appellant prognosis regarded poor 27 dispute arose hearing appeal learned master seeking convey reason decision mr niarchos strongly contended extent taken imply within 5 10 year disabling symptom arising recurrence arthritis necessarily permanently subsume sequela accident proposition manifestly discord clear medical evidence view submission plainly correct although read whole take reason learned master purport accept proposition absolute criticised mr niarchos page 621 appeal book learned master recorded saying recurrence plaintiff condition find least disabling first occurred reasonable possibility condition brought control medication possibility later year may occur find extent condition occurs future disable plaintiff unable carry light sedentary work independently remaining disability right knee cased trauma september 1988 28 clearly acted basis contingency recurrence would occur within timeframe stipulated 29 mr niarchos sought reference relevant multiplier table demonstrate allowance 80 000 future economic loss represents massive discount baseline figure potential loss flowing appellant injury patently inadequate particularly bearing mind young age appellant actual rate loss sustained trial 30 assessing potential interaction sequela appellant injury impact supervening factor arthritis important bear firmly mind concept emerging jobling v associated dairy limited 1981 ukhl 3 1982 ac 794 perhaps expressed clearly walker v briddon king cj 1 september 1986 unreported given learned chief justice member full court speaking pre existing condition paraphrasing dictum king cj render applicable case bar may said liability respondent confined effect injury sustained relevant accident liability extend disability result supervening independent cause alone disability would supervene irrespective occurrence accident particular respondent liable impairment working capacity result solely causative source would supervene irrespective accident 31 course trite say party set assert practical likely supervening situation time bear onus proving nature likely extent supervening independent condition 32 present case learned master plainly faced difficult task empirical approach feasible due contingency necessarily taken account plainly broad axe wielded doubt situation ample scope several mind reasonably differ appropriate end result 33 however heavily influenced young age appellant substantial impact period incapacity directly due sequela injury must necessarily upon empirical term even making generous allowance appellant adverse non compensable contingency considerable difficulty accepting 80 000 adequately measure relevant loss earning capacity would allow appeal purpose increasing sum 120 000 34 leaf consideration cross appeal mounted respondent 35 mr robertson counsel respondent contended learned master fell error concluding appropriate dismiss action virtue alleged failure part appellant satisfy requirement section 115 act 36 first submitted evidence led trial fell far short establishing appellant made due inquiry search ascertain identity driver unidentified car 37 criterion applied course conveniently summarised judgment king j plesa v griffith 1977 15 sasr 434at 442 3 appellant required demonstrate done reasonable appropriate relevant circumstance required embark upon mere ritual step likely futile 38 course reason decision aspect written context appellant significantly disabled immediately following accident learned master commented appeal book p631 3 accident plaintiff went car park several occasion see could identify vehicle also asked mr dixon keep lookout car also reported incident employer report police plaintiff instructed solicitor relation incident 14th may 1989 september 1989 advertisement placed news advertiser advertisement seeking information inserted newspaper 1st 6th september 1989 response inquiry made mr sharp shop steward gmh plant mr robertson submitted plaintiff reported incident security officer employed gmh night injury accept contention difference reporting third party incident taken place making inquiry identity vehicle unless clear reporting incident gmh security might assist ascertaining identity vehicle point making report purpose due search inquiry section 115 matter accident reported plaintiff employer investigation undertaken produce result contended mr robertson plaintiff followed sharp provided name defendant clear evidence adduced trial nobody gmh stage ever ascertained identity vehicle even driver vehicle following mr sharp would made difference provision name defendant aspect relevant question due search inquiry complaint made relation mr mcateer reason failure part plaintiff obtain information mr mcateer form basis suggestion due search inquiry mr mcateer see incident came upon plaintiff mr dixon incident mr robertson submitted plaintiff obtained information mr dixon cannot see plaintiff failed make relevant inquiry mr dixon plaintiff aware mr dixon see incident merely saw car moving away point collision occurred complaint plaintiff sufficiently instruct dixon relation keeping look car failed inform mr dixon ornament hanging rear view mirror car consider even mr dixon advised fact would made difference ability identify car seen later stage contended plaintiff pursued possible witness worker leaving car park end afternoon shift night question clear evidence plaintiff mr dixon extent corroborated evidence mr mcateer nobody else vicinity incident occurred unlikely anybody else saw incident accordingly consider even attempt made locate others car park night question would lead obtaining relevant information mr robertson submitted plaintiff reported incident police said report element due inquiry search whilst may thought report made police police might come information helping identify vehicle view realistic basis making assumption circumstance case witness incident person might assumed made attempt identify vehicle reference registration number plaintiff mr dixon neither able anybody else car park saw vehicle would known involved collision pedestrian therefore would cause attempt take registration number vehicle consequently think even matter reported police inquiry police would obtained relevant information reject defendant contention due search inquiry made apart knowing make approximate model vehicle plaintiff borrow bray cj plesa v griffith without clue inquiry made beyond actually carried would futile ritualistic find fact plaintiff made due search inquiry 39 reality mr robertson merely sought agitate various factual issue full court stress submission appellant advisor le timely diligent pursuing line endeavour suggested notifying full known fact nominal defendant 40 short answer proposition learned master gave final paragraph cited opinion substance criticism made tend focus shadow substance unrealistic fashion 41 secondly argued appellant failed give notice writing claim nominal defendant soon reasonably practical became apparent identity driver unidentified car readily ascertainable 42 regard due allowance needed made effect injury appellant manner personally could go inquiry need solicitor explore line investigation fairly arose may notice could due diligence reasonably given earlier time situation avail respondent nothing unless discharge onus proving resultant prejudice 43 considered totality evidence learned master constrained say appeal book p634 contended defendant prejudiced failure ie give notice claim ought dismissed disagree submission whether plaintiff failed give notice accordance section 115 3 satisfied balance probability defendant prejudiced conduct defence failure view probability even plaintiff reported incident nominal defendant day occurred defendant would able obtain information would altered course defence proceeding eye witness incident plaintiff mr dixon unable identify vehicle consider step defendant may taken even notified day accident would probably produced negative result obtained plaintiff therefore consider action dismissed pursuant provision section 115 4 motor vehicle act 44 conclusion fairly open fact see reason quarrel conclusion evidence witness m reynolds nominal defendant apparently took active role seems done little act recipient letter box correspondence ill becomes suggest way prejudiced quite apart point made learned master 45 would unhesitatingly dismiss cross appeal |
Chong & Ha (No.2) [2018] FCCA 320 (14 February 2018).txt | chong ha 2 2018 fcca 320 14 february 2018 last updated 11 february 2019federal circuit court australiachong ha 2 2018 fcca 320catchwords family law application open judgment delivered final order made purported 79a application dispute regarding document jointly produced joint tender bundle substantive proceeding functus officio re judicata whether cost paid indemnity solicitor client party party basis assessment cost legislation family law act 1975 s 79a 90sn 117federal circuit court act 1999 86federal circuit court rule 2001 rr 16 05 21 02cases cited chang su 2002 famca 156urban transport authority new south wale nweiser 1992 28 nswlr 471australian security investment commission asic v rich 2006 nswsc 826smith v nsw bar association 1992 176clr 256autodesk inc v dyason 2 1993 hca 6 1993 176 clr 300summitt summitt or opening 2009 famca 365vadisanis vadisanis anor 2015 famcafc 180jackson v goldsmith 1950 81 clr 445blair v curran 1939 clr 464bailey v marinoff 1971 hca 49 1971 125 clr 529pollard v incorporated nominal defendant 1972 vicrp 110penfold v penfold 1980 hca 4 1980 144 clr 311latoudis v casey 1990 hca 59 1990 170 clr 534brown v brown 1998 famca 115collins collins 1985 famca 15 1985 flc 91 603cachia v hanes 1994 hca 14 1994 179 clr 403in marriage briese 1985 famca 23 1986 flc 91 713in marriage rouse 1981 famca 57 1981 flc 91 073robinson higginbotham 1991 famca 4 1991 flc 92 209in marriage murray 1990 flc 92 173browne v green 2002 famca 791 2002 flc 93 115in marriage harris 1987 famca 7 1987 flc 91 822munday v bowman 1997 flc 92 784kohan kohan 1993 flc 92 340yunghanns or yunghanns or yunghanns 2000 famca 681 2000 flc 93 029jel ddf 2 2001 famca 907 2001 flc 93 083prantage v prantage 2013 famcafc 105braithwaite braithwaite 2007 famca 468bolinger v ivy 2008 famca 274applicant mr chongrespondent m hafile number syc 2468 2014judgment judge kemphearing date 9 february 2018date last submission 9 february 2018delivered sydneydelivered 14 february 2018representationcounsel applicant mr othensolicitors applicant linden legalcounsel respondent mr bellsolicitors respondent caroline chung associatesthe court order 1 wife application case filed 16 november 2017 dismissed 2 wife pay husband cost sum 95 014 84 respect proceeding husband application case filed 27 july 2017 opposition wife application case filed 16 november 2017 within 3 month today date 3 husband application case filed 27 july 2017 otherwise dismissed 4 matter otherwise removed active pending case list noted publication judgment pseudonymchong ha 2 approved pursuant tos 121 9 g thefamily law act 1975 cth federal circuit courtof australiaat sydneysyc 2468 2014mr chongapplicantandms harespondentreasons judgmentintroductionon 30 june 2017 judgment delivered court judgment following order order declaration made 1 declaration pursuant tos 90rdof thefamily law act 1975 act party de facto relationship june 2006 february 2012 relationship existed period least 5 year 8 month 2 declaration husband made substantial contribution kind referred 90sm 4 90sm 4 b act 3 within 42 day date order wife act thing execute document necessary transfer husband expense husband whole wife right title interest property situate known property state new south wale whole land contained folio identifier property property subject encumbrance thereon 4 simultaneously order 3 party act thing husband pay sum money discharge joint mortgage secured property property refinance said mortgage sole name 5 specifically provided order party solely entitled exclusion item personal real property respective possession registered proprietor date order including limited money standing credit party bank building society shareholding motor vehicle present future expectation trust estate superannuation entitlement 6 default party either act thing executing document necessary give effect order registrar federal circuit court australia sydney appointed pursuant 106a act execute document name party default act thing necessary give validity operation said order 7 party seek cost appropriate written application may made within 28 day today date supported documentary material filed served within time period copy forwarded chamber court deal matter way written submission unless party wish heard orally application made within time period specified order cost 8 matter otherwise removed active pending case list term judgment included reason fully set herein received exhibit court 1 husband compliance order 7 referred filed application case 27 july 2017 made returnable 13 september 2017 sought following order 1 within 21 day order made respondent pay cost applicant indemnity basis sum 102 216 55 cost paid applicant relation proceeding date 2 alternative order 1 hereof within 21 day order made respondent pay applicant cost relation proceeding date agreed assessed accordance part 19 family law rule 20014 3 within 21 day order made respondent pay cost applicant connection cost application sum 3 833 00 husband relied affidavit solicitor m zippy wen yee chan sworn 19 july 2017 filed 27 july 2017 respondent wife file response abovementioned application case 13 september 2017 following order notation made 1 leave granted husband file court today written submission 2 husband serve wife written submission referred order 1 within 7 day today date 3 wife file serve written submission cost together affidavit response 14 day compliance order 2 4 wife file affidavit term order 3 husband file short affidavit reply 7 day thereafter 5 cost issue dealt chamber upon receipt affidavit submission expiration time order 4 6 husband solicitor notify wife solicitor order made today court note 7 wife solicitor still record respondent appear today 14 september 2017 solicitor wife goh lawyer forwarded husband solicitor court notice intention withdraw filed day 29 september 2017 wife said solicitor filed notice withdrawal lawyer wife solicitor m caroline chung forwarded email court 25 september 2017 requesting extension time file document 26 september 2017 following order notation made chamber 1 time wife file serve written submission cost together affidavit response order 3 13 september 2017 extended within 14 day today date court note 2 wife file affidavit submission accordance order order 4 13 september 2017 allows husband file short affidavit reply 7 day thereafter 27 september 2017 wife filed notice address service confirming new solicitor m caroline chung way order made 10 october 2017 time extended wife written submission filed 13 october 2017 13 october 2017 wife written submission received together affidavit wife sworn 12 october 2017 filed 13 october 2017 18 october 2017 husband written submission reply received wife written submission raised issue whether wife seeking open evidence generally restricted basis question cost order sought wife term either way response husband application case way fresh application case wife 13 november 2017 application case filed wife reopen case court wrote party advising application case filed 12 noon friday 17 november 2017 matter would proceed paper 16 november 2017 wife filed application case seeking following order 1 grant leave wife open evidence including purpose relying material attached affidavit sworn 12 october 2017 filed cost application 2 alternative pursuant 79a act order varied amended revise property pool reflect exclusion bank china account 3 alternatively variation order made reflect exclusion amount forming part pool referrable contended bank china account consequential order 4 cost 5 order direction court deems wife relied also affidavit solicitor m caroline chung sworn 16 november 2017 filed date affidavit seek explain wife filed initiating application term relief sought proposed order 2 paragraph 16 m chung say permitted registrar file document annexure m chung affidavit however note registrar rejected initiating application basis supporting affidavit financial statement filed support 79a act application must dismissed term brought within application case largely responsive husband application cost particular section relevantly applicable party relationship given never married reliance placed 90sn 1 act term miscarriage justice reason suppression evidence hard see would successful given wife evidence time hearing disclosed mr bell substantially conceded wife application provision premature circumstance court view application present form summarily dismissed order referred paragraph 16 would appear order set paragraph 1 order set paragraph 1 subject appeal 2 february 2018 husband filed response wife application case sought following order 1 application case filed wife 16 november 2017 dismissed 2 application wife seeking order pursuant 79a act summarily dismissed 3 wife pay husband cost incidental interim proceeding indemnity basis husband also relied affidavit solicitor m zippy wen yee chan sworn 1 february 2018 filed 2 february 2018 court sought party consent deal matter paper noting position reached 13 september 2017 see paragraph 6 consent provided husband wife sought make submission oral hearing accordingly court allocated 9 february 2018 event 9 february 2018 wife sought rely affidavit sworn affirmed day court reason given day rejected affidavit court received written submission mr othen counsel wife represented mr bell counsel husband mr othen counsel court determination therefore based study document including affidavit identified read submission oral written party legal representative neither party sought adduce oral evidence cross examine accordingly provision extensive hearing evidence matter tested cross examination court make finding fact testing credibility truthfulness respect thereof application openthe wife seek open matter submits number alternative proposition open court articulated using wife lawyer wording follows first alternative wife permitted open generally material considered adjustment property generally well question cost wife permitted open material learned trial judge generally would undermine force husband case relation key aspect balance sheet court received material would open amend order adopt court reasoning applies broad application would affect evaluation issue party criticism wife second alternative wife permitted open material considered question cost court grant leave wife adduce material confines use specific cost application particular matter pressed husband would negate matter raised husband show wife far worse husband contends third alternative leave granted basis application dealt entirely based husband submission wife reply matter raised submitted husband application fail resort conventional principle referred case controversial albeitchang su 2002 famca 156perhaps relevant topic evidence sought relied upon referred paragraph 3 4 5 wife affidavit sworn 12 october 2017 wife refers paragraph 3 trial tender bundle 31 january 2017 page 40 say purported bank china statement account number chinese partly translated copy page 41 wife say account number account number china wife say withdrew rmb 5 000 00 could transact since wife say produced bank china passbook account retaining new solicitor understood new solicitor sent copy husband solicitor annex annexure copy passbook original passbook received conditionally exhibit 1 court receives exhibit wife say compared passbook statement say conflict statement must wrong annex annexure b schedule prepared new solicitor comparing passbook statement transaction period wife say paragraph 4 rarely operated account last withdrawing rmb5 000 00 wife say hard access 2013 say bank wanted identity clarification hard communicating australia wife say 23 september 2016 attended bank china head office meeting manager could withdraw 5 000 00 rmb wife say bank statement record atm withdrawal china say 2016 went china 2 march 2016 12 april 2016 2 september 2016 28 september 2016 5 december 2016 8 december 2016 wife say bank statement record atm withdrawal rmb2 700 000 00 23 february 2016 rmb2 400 000 00 21 april 2016 rmb4 300 000 00 4 may 2016 say date china annex annexure c copy passport wife submits respect following material relates passbook variously described bank china account ending concession asset significance purpose compare statement husband relied wife seek tender schedule prepared new solicitor carefully match item exhibited statement passbook also seek tender exhibit ought excluded given weight least cost convenience wife seek statement properly translated put submission alternatively ambiguity matter cannot resolved wife submission directly put mr bell meant mr bell could amplify wife concede account ought treated asset trial event say similar another amount attributed wife wife submits following context relevancethe court found excess 500 000 00 australian asset wife one two feature identified controversial party court consideration reflected reason identification husband case wife disclosed exhibit national australia bank limited nab subpoenaed documentsmore importantly husband relied upon partially translation purported statement subpoenaed nab document highest document produced nab adopted wife bank anywhere clearly put browne dunn failure court note however document part party joint tender accordingly submission simply make sense may reflect lack confidence reliability transcript discloses cross examination lesser issue including transfer bank china husband asserted bundle continues home loan application note factual matter purported adoption page 8 document cluster dated printing statement whatever may said document customer put good light finance reference substantial money held wife bank china anywhere dishonour reference seen partially translated statement became part nab record unidentified process document purportedly company 1 adopted wife significantly conflict passbook court note conflict never raised wife hearing disclose passbook court husband event translation 30 may 2016 page 41 appears statement source document dated 26 may 2017 identified period 1 february 2016 26 may 2016 tender bundle page 1 refers property b contract front page property b contract dated 22 april 2016 deposit 318 000 00 balance 2 862 000 00 payable cost sale page 2 discloses loan draw 2 225 581 86 15 july 2016 various transaction consistent purchase bundle follows report 27 june 2016 disclosing organisational structure noting sole director secretary appointed role 21 december 2014 trial context generallycertain feature apply regardless alternative important consideration overall picture intended overcritical question answer transcript without participation trial great respect question put shifted time frame reference point topic one example weekly income paid husband ambiguity evidence frequent example advocate witness cross purpose topic alleged 1 000 00 per week witness good english may understand clear question say plain english tax planning similar deemed receiving sum money physically receive way book entry depending detail may may significant alternate clearly husband position tax planning rather physical payment handed across kitchen table directly banked per return could clear confusing husband conflate book entry fact become prior inconsistent statement unduly critical simply wife contributed confusion monopolise property b propertythere considerable agitation property b remains doubt responsibility confusion may implicitly conceded submission learned counsel husband wife ought criticised failure disclose transaction barrister party represented counsel instructing solicitor court distinction unusual distinction counsel solicitor presumably arises wife solicitor acted purchase fairness others appearing joined putting aside speculation clear solicitor aware property b party entitled reasonable guidance relevant obligation event several scenario given wife instructing solicitor notice property incumbent make set implication property client counsel court accepts thrust submission insofar wife solicitor hearing concerned made genuine error whether reasonable would relevant application made worse error applies correct arguably would sound cost suggestion seeking withdraw matter client refusing disclose required matter considerationsas conduct case account matter resolve matter required determination period issue difficulty particularly extensive regard number issue express matter neutrally reasonable range issue contribution quantum property value like impecuniosity hardship husband property value albeit relying valuation recent 2014 case conducted length properly suggestion conduct case eg length bore unreasonably upon cost gravamen appears alleged non disclosure particular bank china account ground cost application finding wife sounded outcome add cost thereto penalty husband opposes openingit submitted husband ought matter principle consent tender given case account number bank exist cannot heard hold possible error drawn attention naturally wish contend calculation aspect wrong opportunity husband opposes reopening submitted fundamentally change whether could seen conducted case reasonably highest husband put case outline applicant value subpoena material 25 05 16 balance rmb 2 765 660 63 aud 548 351 husband argument wife wholly unsuccessful depends account case learned late without resort reductionism follows without could argue wholly unsuccessful term agitates submission unclear import appear critical wife former solicitor evidence called amplify explain criticism submission appear supportive husband position document air one prepared advise wife outcome proceeding new solicitor extent critical former solicitor court accepts wife leave rely affidavit cost proceeding provided pursuant direction made affidavit must relevant cost dispute husband say court reject paragraph 3 5 wife mentioned affidavit husband say affidavit simply represents ill fated attempt open evidence principal proceeding despite fact judgment already handed husband solicitor affidavit sworn 1 february 2018 provides background term production document became agreed indexed bundle document exhibit court 3 substantive proceeding court judgment court noted left position consider document produced without explanation application made wife open order provide explanation document produced behalf supplied bank accordingly noted court could draw conclusion face document party written submission husband solicitor say result preparing draft agreed bundle document receive request wife solicitor include document part tender party way joint letter court signed solicitor forwarded joint tender bundle reliance court page 40 41 tender bundle document related wife bank china account number produced bank nab answer subpoena issued bank document previously produced wife husband part disclosure proceeding account however disclosed referred balance sheet husband asserting 548 351 00 wife asserting 0 contest referred court identification property set paragraph 68 judgment court determined paragraph 87 judgment wife fact sum 548 351 00 account mr bell concedes document prof sum produced nab included tender bundle without explanation mr bell concedes wife tendered passbook clear possession time submission regard prepared solicitor instructing mr bell entirely unclear term appear said drafted critical wife former solicitor mr bell however critical husband failing cross examine wife account criticism could apply husband aware deposit book wife solicitor raising matter concern represented term agreed tender bundle bank statement provided wife bank indeed accurate mr othen would required cross examine wife matter mr bell criticism husband may acted silence allow court misled without foundation evidence court husband knew passbook knew discrepancy passbook document tender bundle person knowledge potential gain knowledge wife mr bell submits court determine whether misled amount bank china account amount materially affect court decision given appropriately conceded court exercise one mathematical precision mr othen concede misleading court mr othen submits document produced exhibit 1 application simply prove wife seek assert court accepts mr othen submission wife view passbook showed something different represented bank bore obligation raise matter deal issue mr bell submits squarely raised wife presumably mr othen mr othen say may number reason wife disclose including particular forensic decision made previous lawyer forensic decision going nature document representation wife someone behalf made bank term provision bank statement relied exhibit court 3 substantive proceeding court asked mr othen whether forensic decision could arisen term bank providing fund potentially misled provision statement court accepts mr bell submission however would appropriate go regard given paucity evidence uncertainty provided statement bank lack evidence based reliance indeed general unfairness wife matter put court therefore simply note forensic decision made court received document way joint tender party legally represented mr bell make criticism court relying document term information contained therein court position anything made document stated face party ball clearly wife court regard importantly neither legal representative time anything weighs heavily application court note accepts mr othen submission wife cannot heard say fair chance produce evidence hearing misunderstanding court process denial fair hearing must noted mr bell retained wife new solicitor involvement conduct substantive proceeding indeed court noted wife provided previous solicitor important information forthcoming disclosure obligation nothing said wife passbook predates hearing seek place much reliance produced pursuant disclosure obligation clearly possession control husband say court permit opening evidence include material wife affidavit given essentially court functus officio matter court largely accepts submission court note however dealing current cost application husband say criticism exhibit document produced mortgagee subpoena exhibit tendered wife consent opening evidence hearing application made lead evidence subject cross examination wife give specific evidence explain document seek rely relied hearing given particularly seems possession control provided new solicitor court decision handed law openingthe court regard decision ofurban transport authority new south wale nweiser 1992 28 nswlr 471as authority proposition guiding principle question whether party allowed open whether interest justice better served allowing rejecting application case may case principle set court appeal mahoney ja clarke ja meagher ja noted follows principle guide court determining whether grant application leave reopen whether interest justice better served allowing rejecting application case may doubt relevant take account number matter likely prejudice party resisting application reason evidence led first place opinion hard fast rule requires court reject application decision call witness plaintiff case deliberate one course mean relevant consideration clarke ja meagher ja agreed mahoney ja inaskew askew 2015 nswsc 192 rein j refers much affidavit material subject application open substantially nature submission honour determined leave given open case relied onurban transit authority nweiser setting guiding principle court determining whether leave open granted honour also referred case ofaustralian security investment commission asic v rich 2006 nswsc 826 austin j summarised 9 matter regard determining outcome application reopen follows nature proceeding ii whether occasion calling evidence ought reasonably foreseen iii consideration fairness defendant entitled know evidence meet taking forensic decision cross examination nature extent evidence adduce matter question iv extent plaintiff embarked upon calling evidence issue question case chief v importance issue evidence sought adduced pleaded issue case vi degree relevance probative value evidence sought adduced potential involve undue waste time vii prejudice defendant term delay completion proceeding consequential cost viii public interest timely conclusion litigation ix explanation offered plaintiff called evidence chief however mentioned law applies application open prior delivery judgment mr bell referred decision justice murphy insummitt summitt or opening 2009 famca 365which related application open time draft judgment complete yet published case reason judgment given formal order yet made guidance relation situation found 2 decision high court australia namely smith v nsw bar association 1992 176clr 256 andautodesk inc v dyason 2 1993 hca 6 1993 176 clr 300 smith case justice brennan dawson toohey gauldron stated pg 266 application made open basis new additional evidence available relevant stage inquire evidence called hearing deliberate decision call ordinarily tell decisively application 9 assuming hurdle passed different consideration may apply depending whether case simply one hearing complete 10 one reason judgment delivered 11 difficult see former situation primary consideration embarrassment prejudice side 12 latter situation appeal rule relating fresh evidence may provide useful guide manner discretion open exercised consideration bearing opening decisive question whether matter opened reason error evidence called theautodeskcase following stated per brennan j paragraph 1 court undoubted jurisdiction recall judgment pronounced least prior formal entry judgment judgment pronounced person without fault part person opportunity heard judgment pronounced 20 state rail authority n w v codelfa construction pty ltd 1982 150 clr29 wentworth v woollahra municipal council 1982 149 clr672 p 684 jurisdiction exercised sparingly important bring litigation finality court per gaudron j paragraph 1 however circumstance justice requires course practice extremely rare particularly opportunity full argument 42 wentworth v woollahra municipal council 1982 hca 41 1982 149 clr 672 p 684 state rail authority n w v codelfa construction pty ltd 1982 hca 51 1982 150 clr 29 pp 38 48 order make clear reason holding interest justice require course case necessary repeat least extent fact involved court accepts general capacity open following even publication reason prior finalisation order capacity exercised exceptional circumstance case requires interest justice matter court one could say wife opportunity putting court material seek lead substantially sound court deal application open following publication court reason making formal order full court family court australia invadisanis vadisanis anor 2015 famcafc 180considered law term opening perfected order consideration set paragraph 31 39 follows perfected order reopened considerable authority proposition family court lack power set aside vary final judgment order perfected djl v central authority 2000 hca 17 2000 201 clr 226the high court determined although family court superior court record 32 created statute therefore lack well undefined power available common law court part inherent jurisdiction 25 high court went state considering thefamily law act 1975 cth act governing statute family court clear act provides express conferral power reopen final order perfected power derived necessary implication statutory structure 45 indeed provision act may fact negative inherent power court may taylor v taylor 1979 hca 38 1979 143 clr 1 8 counsel husband relied following passage bailey v marinoff 1971 hca 49 1971 125 clr 529at 530 per barwick cj support submission court could go behind order 5 otherwise reconsider issue cost order disposing proceeding perfected drawn record court proceeding apart specific relevant statutory provision end court substance opinion beyond recall court noteworthy bailey v marinoff concerned omission mistake order undoubtedly gave effect court intention notwithstanding principle limited circumstance court may reopen order example djl v central authority callinan j acknowledged narrow class exception may warrant reopening matter following judgment perfected order decision majority bailey v marinoff gamser v nominal defendant confirm intermediate appellate certainly statutory court absent clear provision contrary lack inherent power open perfected order disposing proceeding authority doubted court stated exception general rule rarely found practice current authority confined statute apart correction formal error like fraud failure give party hearing case occasion extension narrow properly category exception emphasis added must noted exception general rule rare state rail authority new south wale v codelfa construction pty ltd 2 1982 hca 51 1982 150 clr 29the high court held 38 although doubt power vacate order power exercised great caution circumstance justify rehearing must quite exceptional echoed burrell v queen 2008 hca 34 2008 238 clr 218 high court stated considering whether perfected order reopened underpinning consideration principle finality litigation 15 power family court reopen perfected order party denied opportunity heard confirmed taylor v taylor gibbs j held order made absence party notice hearing ought set aside made breach fundamental principle natural justice 12 rule justice rule common sense court able correct failure essential requirement 10 present case court made order 5 found necessary precondition make order cost certificate including requirement matter one party ought bear cost met however finding made without providing wife opportunity heard issue notwithstanding court indication direction would made facilitating filing exchange submission issue importantly occurred fault wife oversight court view case fall squarely within circumstance contemplated high court djl v central authority 2000 hca 17 constitutes exception general rule court cannot reopen perfected order mistake court denied wife right heard issue cost thus view court ability reason operation r 17 02 correct order 5 revoking order made denial wife right heard mr othen refers torule 16 05of thefederal circuit court rule 2001which refers power court vary set aside judgment order entered rule provides power circumstance order made absence party order interlocutory order injunction appointment receiver order reflect intention court party whose favour order made consent mr othen submits court accepts none matter apply mr bell say depending upon court decision receipt otherwise wife passbook showing different amount subject joint tender party meant final order court reflect intention court term fact matter clearly fall within slip rule court accept mr bell submission regard court accepts mr othen submission wife application seek effect vary fact found court judgment effect sum 548 351 00 fact smaller monies bank china account seek revisit cause action merged court judgment wife clearly fall foul doctrine ofres judicata stated injackson v goldsmith 1950 81 clr 445 466 fullagar j rule re judicata stated sufficiently present purpose saying action bought judgment entered action proceeding thereafter maintained cause action similarly court accepts fact judgment wife seek vary merged judgment stated inblair v curran 1939 clr 464at page 531 dixon j judicial determination directly involving issue fact law disposes issue cannot afterwards raised party privy court made final order order entered onto record would appear implemented noting order enforced 106a act put effect court isfunctus officio role spent court refers paragraph 45 reference tobailey v marinoff 1971 hca 49 1971 125 clr 529and dictum chief justice barwick therein stated regard court note proceeding cannot opened order cannot varied fact cannot determined stated full court supreme court victoria inpollard v incorporated nominal defendant 1972 vicrp 110 winnekecj adam newton jj proceeding determined proceeding may properly treated dead subject appeal course wife regard statutory relief particular one properly constituted 90sn 1 act husband maintains term wife submission respect cost dispute following section second alternative said material wife affidavit show wife far worse contended husband court could satisfied veracity matter claimed wife affidavit even accepted highest finding wealth show wife comfortably well extent financial circumstance would operate prevent cost order made full amount claimed submission property property failure disclose court even wife counsel even though wife solicitor acted sale sat next counsel throughout trial reduce force husband submission cost impact conduct litigation wife fact reinforce evidence wife acted advice somehow innocent fact prepared lie oath examination inform court solicitor know property obviously equally obviously knew next argued special circumstance arising conduct litigation result justify cost order proceeding usual order mind might reasonably differ outcome proceeding could characterised submission address either total loss suffered wife compelling offer writing argued suggestion trial longer necessary due conduct wrong since submission made developed effect husband submission submission cost would penalty finding sounded wife outcome party brings proceeding suffers total loss expect cost order party run case trial rejecting offer writing opponent beat expect cost order cost circumstance penalty compensation litigant put expense legal proceeding circumstance matter court therefore minded receive evidence sought wife term opening evidence hearing simply limited term current cost dispute law coststhe court general power award cost found 86 thefederal circuit court act1999and particular pursuant torule 21 02of thefederal circuit court rules2001 |
Applicant: Morteza Behnampirouz Principal: Mostafa Behnampirouz IRT Reference: N96_02395 #number 10610 [1997] IRTA 10610 (27 October 1997).txt | applicant morteza behnampirouz principal mostafa behnampirouz irt reference n96 02395 number 10610 1997 irta 10610 27 october 1997 decision reason decisionirt reference n96 02395 10610 docapplicant mortezabehnam pirouzprincipal mostafabehnam pirouztribunal m fadjiar senior memberdate 23 october 1997place perthdecision tribunal affirms decision grant mostafa behnam pirouz short stay visitor visa class tr subclass 676 reason decisionon 5 december 1996 morteza behnam pirouz applicant australian permanent resident lodged application tribunal undersection 347of themigration act 1958 theact seek review decision made 8 february 1996 primary decision delegate minister immigration ethnic affair refusing brother mostafa behnam pirouz principal short stay visitor visa class tr subclass 676 visitor visa enable visit australia period three 3 month following receipt application review request tribunal department file 96 01066l take form loose paper file submitted tribunal pursuant tosection 352of theact amongst thing file contains principal application visitor visa together document lodged support well also contains applicant application migration internal review office miro seeking first tier review primary decision application unsuccessful applicant assisted legal aid commission new south wale legal aid application miro well application tribunal detailed written submission dated 14 october 1997 received tribunal content referred become relevant hearing matter first set 15 september 1997 although date time confirmed legal aid solicitor mr james dagnall 28 august 1997 tribunal registry perth received telephone call 11 september 1997 advising unable contact applicant 12 september 1997 tribunal received facsimile mr dagnall requesting hearing cancelled another one scheduled second hearing scheduled 20 october 1997 hearing confirmed mr dagnall telephone writing submission 14 october 1997 mr dagnall confirmed applicant would attending hearing together wife return iran applicant turn hearing appointed time interpreter discharged hour appointed time 2 30 p tribunal make decision regard paper contained department file well document submission lodged support application review principal forty nine year old iranian national married three child aged eleven twenty five year eldest daughter married elder son working mechanic supporting youngest son still school 9 july 1996 lodged application visitor visa form 48r original application overseas post department immigration multicultural affair department australian embassy tehran seeking visit australia period three month order visit brother applicant application accompanied statutory declaration signed applicant 20 november 1995 stating would provide brother financial support accommodation associated health cost australia original application refused 8 february 1996 essentially decision maker satisfied genuine visit intended principal schedule 1 migration regulation regulation set various prescribed class visa specific way non citizen applies visa particular class class one subclass instance class tr item 1218 schedule 1 regulation subclass 676 tourist short stay relevant criterion must met set part schedule 2 bear number subclass accordingly relevant criterion grant subclass 676 visa prescribed part 676 schedule 2 regulation provision relevant present purpose following 676 21 criterion satisfied time application676 211 1 applicant seek visit australia remain australia visitor purpose visiting australian citizen australian permanent resident parent spouse child brother sister applicant b either adequate fund access adequate fund personal support period visit 676 212 application made outside australia period stay australia proposed application exceed 3 month 676 22 criterion satisfied time decision676 221 1 applicant meet requirement subclause 2 3 4 2 applicant meet requirement subclause applicant continues satisfy criterion clause 676 211 b application made outside australia applicant continues satisfy criterion clause 676 212 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 676 6 conditions676 611 case visa granted applicant meet requirement subclause 676 221 4 condition 8201 8205 676 612 case condition 8101 8201 8205 676 613 condition 8503 may imposed certain condition imposed visa mandatory namely 8101 8201 8205 another namely 8503 discretionary specified schedule 8 regulation clause 4001 4004 referred clause 676 221 deal various requirement public interest criterion whilst paragraph 4005 deal health criterion criterion met time decision clause 4012 also relevant present purpose applies applicant age eighteen year clause 4011 read follows 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 sic 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 risk factor referred provision measured form profile comprising common characteristic person according department statistic tendency overstay australia statistic based movement record endorsed secretary department may found relevantprocedures advice manual pam 3 heading generic guideline h visitor visa principal affected risk factor male iranian national age twenty five year mean addition prescribed criterion tribunal must also satisfied little likelihood principal remain australia end proposed stay australia fair say main thrust criterion prescribed grant close family visitor visa centred around bona fides applicant must show proposed visit intended genuine example meant purpose pursuing study employment word genuine defined themacquarie dictionary 2nd revised edition truly real authentic word purpose intended well applicant must also satisfy decision maker sufficient fund access sufficient fund live period proposed visit deciding whether bona fides requirement satisfied tribunal must look circumstance case established evidence evidence must logically probative seeminister immigration ethnic affairsvpochi 1980 fca 85 1980 4 ald 139at 160 tribunal must base finding tribunal decision maker process act mere suspicion speculation pochi decision founded irrelevant consideration absence specific provision migration legislative framework indicating rest onus proving proposed visit principal intended genuine tribunal guided various administrative appeal tribunal aat federal court decision relating question whilst acknowledging administrative tribunal seek determine matter strict application rule related onus proof senior member ballard inre caruana australian telecommunication commission 1982 5aln n30 nevertheless said regard must application rule determining party responsibility satisfying tribunal given fact see alsore elkington minister immigration ethnic affair 1982 5 aln n196 honour fox j inladicvcapital territory health commission 1982 5 aln n60said n61 term onus proof burden proof legal burden requirement could matter common sense said rested party seeking result view endorsed deputy president todd aat decisionre holbrook australian postal commission 1983 5 aln n146when said matter common sense use honour word asserts seek result must prove proof must make possible finding whole evidence balance probability fact fundamental claim emphasis added inmcdonaldvdirector general social security 1984 fca 57 1984 6 ald 6 federal court anxious avoid onus terminology result flowing court sdictahowever appear much different raised decision referred whole evidence considered statutory requirement tribunal left state uncertainty whether fact necessary activate relevant statutory power established must decide exercise power tribunal review matter mindful two policy direction issued pursuant tosection 499of theact minister immigration multicultural affair 17 september 1996 relation australia visitor program policy direction 1 1996 primarily set relevant consideration testing whether applicant intends genuine visit include following 1 level personal financial employment commitment may induce return usual country residence 2 circumstance may induce return usual country residence military service unemployment 3 credibility applicant term character conduct 4 purpose duration proposed visit financial support assistance available nominator australia 5 indication reasonable likelihood applicant abide visa condition 6 history compliance immigration law 7 record sponsor nominator australia respect person previously sponsored nominated supported entry australia recital direction clear primary purpose close monitoring australia visitor program ensure visitor overstay cost detection subsequent enforced departure visitor imposes considerable burden australian taxpayer well visitor generally would undergone relevant health character assessment may therefore pose potential risk australian community policy direction 2 1996 deal primarily cost potential medical treatment hospitalisation visitor covered medicare cost unpaid would ultimately borne australian taxpayer direction aimed ensuring visitor adequate fund made adequate arrangement regard medical emergency travel insurance contingency given direction inconsistent relevant legislative provision given minister specific power provided theact stated honour heerey j inakhatar alivminister immigration local government ethnic affair 1992 fca 453 1992 38 fcr 144 save inconsistent legislative provision binding decision maker indeed tribunal although thealicase concerned different set direction honour finding nevertheless relevant direction originate legislative authority far principal employment situation concerned original application principal ticked box reply question currently employed also declared current occupation retired since submitted legal aid solicitor mr dagnall principal actually employed jet bar transport towing company granted leave visit brother australia translation letter jet bar tendered tribunal together mr dagnall submission 14 october 1997 tribunal place little weight letter make finding issue principal employment submission 14 october 1997 solicitor legal aid contended applicant seen brother seven year according department movement record applicant departed australia two separate occasion 25 november 1993 24 august 1997 applicant destination occasion unclear record tribunal opportunity clarify issue applicant little weight placed legal aid contention finding made issue reason discussed principal bear common sense onus proving balance probability intends genuine visit towards end brother applicant offered opportunity give oral evidence tribunal avail opportunity despite two attempt arranging hearing indeed second occasion failed turn despite solicitor assured tribunal would considered whole evidence tribunal mindful relevant consideration set tribunal unable make finding fact crucial issue whether principal intends genuine visit use word honour mr justice carr full court federal court decision ofester jones v minister immigration ethnic affair 6 december 1995 decision making pendulum remain equilibrium tribunal unable decide one way tribunal unable make positive finding fact relation one prescribed criterion namely expressed intention principal visit australia genuine clause 676 221 regulation application must necessarily fail necessary tribunal consider whether prescribed criterion met prescribed criterion must met visa sought may granted decision review affirmed _____________ms fadjiarsenior memberi certify eight 8 preceding page true copy decision reason decision herein m fadjiar member tribunal assistant registrar23 october 1997 |
Chim and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1340 (19 December 2002).txt | chim minister immigration multicultural indigenous affair 2002 aata 1340 19 december 2002 last updated 8 january 2003decision reason decision 2002 aata 1340administrative appeal tribunal v2002 479general administrative division vith chimapplicantand minister immigration multicultural indigenous affairsrespondentdecisiontribunalmr p estcourt qc deputy president date19 december 2002placemelbournedecisionthe decision review affirmed sgd p estcourt qc deputy presidentcatchwordsimmigration spouse visa whether applicant fails pas character test past general conduct false misleading information whether discretion exercised direction 21 genuine marriage australian citizen best interest child decision refuse affirmed migration act 1958 s501re prasad minister immigration ethnic affair aat decision 9822 7 november 1994 goldie v minister immigration multicultural affair 14 september1999 fca 1277re lachmaiya department immigration ethnic affair 1994 19 aar 115re chau minister immigration multicultural affair 2201 aata 485wan v minister immigration multicultural affair 2001 fca 568re moengangongo department immigration multicultural affair 2001 aata 74re tuiono department immigration multicultural affair 2001 aata 92reasons decision19 december 2002 mr p estcourt qc deputy president 1 application vith chim review applicant review decision made delegate minister immigration multicultural indigenous affair respondent refusing pursuant tos501of themigration act 1958 theact grant review applicant wife nim vann visa applicant sub class 309 spouse provisional visa 2 section 501of theactprovides relevantly 501 1 minister may refuse grant visa person person satisfy minister person pass character test 501 6 purpose section person pas character test c regard either following ii person past general conduct person good character 3 exercise power unders501of theactinvolves firstly consideration whether visa applicant good character second whether discretion refuse grant visa applied nevertheless exercised favour applicant event failure pas character test 4 decision respondent delegate refused grant visa applicant visa unders501 6 c ii basis found visa applicant satisfy passed character test refused exercise residual discretion favour 5 visa applicant born 11 june 1980 cambodia second four child one elder brother vann noeun resides australia 6 visa applicant review applicant married cambodia 29 december 2000 7 respondent refusal visa applicant visa basis five ground involving assertion false misleading conduct part visa applicant dealing australian migration official 8 visa applicant endeavoured explain migration misconduct alleged whilst number respect explanation validity find unnecessary examine view one matter wholly unable accept explanation 9 1996 visa applicant included family application remaining relative visa application made mother 10 common ground order fit criterion grant visa declaration made application visa applicant aunt deceased claim false aunt alive living cambodia 11 remaining relative visa application refused delegate respondent 11 april 2000 thereafter appeal lodged decision migration review tribunal mrt appeal proceeded hearing mrt decision handed 20 november 2001 affirming decision review 12 visa applicant well aware appeal migration review tribunal time married review applicant however advise fact 13 visa applicant application spouse visa signed lodged australian embassy phnom penh question 4 visa application form visa applicant asked person included application currently awaiting decision another visa application answer given visa applicant 14 spouse visa application completed australia mr hong lim whose assistance sought review applicant review applicant took blank visa application form filled plainly review applicant know thus mr hong lim know answer question 4 false 15 review applicant said evidence tribunal little knowledge written english received completed spouse visa application form try read could read said lodged application believed answer would correct trusted husband 16 accept visa applicant entitled justify making false misleading declaration application visa come australia asserting lack knowledge written english reliance upon husband relevant time disclosed pending appeal migration review tribunal rejection visa application included 17 visa applicant signed declaration foot visa application form included following yuml declare information supplied application complete correct date every detail yuml understand give false misleading information application may refused visa granted may cancelled read understood information supplied application declaration cannot circumvented claim application fact read 18 visa applicant sufficiently conscious importance relationship appeal migration review tribunal supervening marriage review applicant ask uncle chhorn chan australia whether migration review tribunal informed fact marriage yet inform husband pending application cannot accept anything conscious decision based either apprehension falsity remaining relative visa application might reflect badly spouse visa application alternatively desire pursue dual application visa australia event one refused 19 either event satisfied answer question 4 first page spouse visa application declaration foot application form amount giving false misleading information either deliberately full knowledge falsity alternatively recklessly caring whether information given false 20 inragni mala prasad minister immigration ethnic affair aat decision 9822 7 november 1994 deputy president mcdonald observed decision whether person good character requires consideration aggregate quality true say however despite many good quality possessed person quality outweighed single adverse incident sufficient weight seriousness respectfully agree 21 notion character within context ofs501of theactwas explained full federal court ingoldie v minister immigration multicultural affair 14 september1999 fca 1277at para 5 7 spender drummond mansfield jj said concept good character ins501is concerned whether applicant entry meet highest standard integrity le exacting standard concerned whether applicant entry character sense enduring moral quality deficient show public good refuse entry 22 ministerial direction 21 provides para 1 11 general conduct also includes recent good conduct good bad conduct must taken consideration obtaining complete picture non citizen character relevantly therefore noted suggestion case visa applicant bad character immigration sense take account openness answered question put interview migration officer phnom penh detection inclusion family remaining relative visa application satisfied however migration misconduct one occasion sufficient weight seriousness cause find visa applicant pas character test 23 turning residual discretion unders501of theactto nevertheless grant visa face failure pas character test ministerial direction 21 requires tribunal adopt balancing process three primary consideration number consideration 24 three primary consideration protection australian community member community b expectation australian community c case involving parental close relationship child child person consideration best interest child child 25 consideration first primary consideration namely protection australian community involves direction 21 consideration seriousness nature conduct e likelihood conduct may repeated f likelihood visa refusal would prevent like offence person 26 ministerial direction 21 make clear australian government regard serious offence themigration actas serious surprising ass234of theactmakes offence connection visa application make false misleading statement provides penalty breach section 10 year imprisonment fine 110 000 satisfied therefore visa applicant conduct serious notwithstanding already observed spoke understood little english acting assistance australian citizen 27 deputy president mcmahon said inre lachmaiya dept immigration ethnic affair 1994 19 aar 115 156 observance truth dealing official migration matter particularly truth known person making statement fundamental importance control mechanism country exercise visa application dealing many reason coming australia 28 likelihood conduct may repeated fact application permanent visa render remote sort behaviour would manifest particularly appears appreciates gravity conduct repercussion 29 question general deterrence satisfied case visa applicant refused entry breach australia migration law person similarly minded may deterred following suit 30 deputy president wright noted inchau minister immigration multicultural affair 2001 aata 485at para 25 opinion effective way announcing loudly clearly prospective migrant cambodia must tell truth application make refusing visa make use fraudulent document untrue representation gain entry australia expectation australian community view expected non citizen open honest migration official relation visa application community would expect person contravenes australia migration law later afforded privilege visa 31 case involved parental relationship child person consideration review applicant son dalwin born earlier marriage aged 5 year dalwin born australia australian citizen started kindergarten year speaks english cambodian cared review applicant mother speaks english whilst review applicant work 32 clear decision inwan v minister immigration multicultural affair 2001 fca 568that tribunal obliged give proper genuine realistic consideration best interest child child consideration bearing mind best interest child primary consideration ministerial direction 21 thus identified best interest child question assessing whether strength consideration cumulative effect consideration outweigh consideration best interest child understood primary consideration 33 review applicant 34 year old lived australia 15 year fled cambodia excess pol pot regime housed thailand refugee camp 1979 1987 coming australia april year becoming australian citizen 4 october 1989 34 review applicant well aware value australian citizenship evidence regarded australia good country freedom available cambodia good employment recognises would able obtain cambodia wage living standard much better australia 35 review applicant specifically asked whether made definite decision return cambodia wife able join australia however gain impression may given evidence cambodia hold nothing really 36 review applicant gave evidence regarded educational opportunity australia dalwin much better cambodia medical social support system much better australia find unlikely therefore even review applicant returned cambodia live visa applicant would remove dalwin benefit australian citizenship loss associated opportunity available dalwin australia find likely dalwin would remain australia raised formative year review applicant mother 37 find made likely whatever decision review applicant make live future virtue fact dalwin mother court ordered access australia although evidence always exercise access usually telephone 38 addition three primary consideration set direction 21 required regard relevant consideration may taken account although generally accorded le individual weight primary consideration 39 respect direction provides follows considerations2 17 considering issue visa refusal cancellation matter although primary consideration may relevant government view relevant appropriate matter taken account generally given le individual weight given primary consideration consideration may include extent disruption non citizen family business tie australian community article 23 1 international covenant civil political right iccpr provides family natural fundamental group unit society entitled protection society state article 17 1 provides one shall subjected arbitrary unlawful interference privacy family home correspondence unlawful attack honour reputation b genuine marriage de facto interdependent relationship australian citizen permanent resident eligible new zealand citizen assessing compassionate claim australian partner australian citizen permanent resident eligible new zealand citizen decision maker must consider circumstance relationship established whether australian partner knew non citizen character concern time entering establishing relationship c degree hardship would caused immediate family member lawfully resident australia including australian citizen including whether immediate family member able travel overseas visit non citizen nature relationship non citizen immediate family member whether immediate family member way dependent non citizen support cannot provided elsewhere family composition non citizen family australia overseas e likelihood non citizen seeking evade outstanding legal matter going liability f likelihood non citizen breaching condition attached outstanding legal going matter cost bilateral implication breach eg extradition g nature seriousness offence alleged offence context seeking evade outstanding legal matter h evidence rehabilitation recent good conduct whether applicant temporary visa permanent visa j purpose intended duration entry stay australia including significant compassionate circumstance k fact non citizen formally advised past officer department immigration multicultural affair conduct brought within deportation provision atsection 200 201of theactor visa refusal cancellation provision atsection 501 40 satisfied review applicant marriage visa applicant genuine marriage time marriage review applicant knowledge migration misconduct part visa applicant indeed time could said fact misconduct 41 compassionate claim review applicant australian partner degree hardship would caused immediate family member doubt including mother visa application refused review applicant chooses go live cambodia powerful consideration compete protection australian community expectation community conclude however case consideration outweigh primary consideration case 42 considered consideration application case whilst satisfied great hardship suffered review applicant visa applicant whatever course chosen refusal visa application relevant primary consideration outweigh hardship 43 one cannot considerable empathy review applicant position given know remaining relative visa application visa applicant married know appeal migration review tribunal spouse visa application rejected however plight innocent australian partner reason alone assuaged grant visa spouse every case compassionate claim australian partner could expected given greater priority ministerial direction 21 44 considering question visa applicant rehabilitation recent conduct note evidence exemplary character except relation migration misconduct 45 recent good conduct held mean recent good conduct immigration sense moengangongo department immigration multicultural affair 2001 aata 74at para 40 46 construction correctly applicable para 2 17 h ministerial direction 21 really evidence recent good conduct apart visa applicant acknowledgment misconduct 47 hand thought possible deputy president block intuiono department immigration multicultural affair 2001 aata 92at para 9 b concept recent good conduct wider conduct immigration sense would appropriate general regard visa applicant good conduct since making visa application difficult however see recent good conduct irrespective true width concept could carry sufficient weight overcome seriousness visa applicant earlier misconduct given relatively short period time elapsed since 48 balanced primary consideration tribunal find case unable exercise residual discretion unders501of theactin favour visa applicant 49 follows decision tribunal decision review affirmed certify 49 preceding paragraph true copy reason decision herein mr p estcourt qc deputy president signed k l milleradministrative assistantdate hearing 1 november 2002date decision 19 december 2002counsel applicant m k andersonsolicitor applicant macpherson kellycounsel respondent mr michael breretonsolicitor respondent australian government solicitor |
Stear (Migration) [2022] AATA 2344 (9 May 2022).txt | stear migration 2022 aata 2344 9 may 2022 last updated 22 july 2022stear migration 2022 aata 2344 9 may 2022 decision recorddivision migration refugee divisionapplicant mr nicola claire stearcase number 2203845home affair reference bcc2020 1944564member meena sripathydate 9 may 2022place decision sydneydecision tribunal remit application new zealand citizen family relationship temporary class visa reconsideration direction applicant meet following criterion subclass 461 visa regulation 2 03aa 2 statement made 09 may 2022 11 09amcatchwordsmigration new zealand citizen family relationship temporary class visa subclass 461 police clearance certificate provided decision review remittedlegislationmigration act 1958 65migration regulation 1994 r 2 03aa 2 schedule 2 c 461 223 schedule3 pic 4001statement decision reasonsapplication reviewthis application review decision made delegate minister home affair refuse grant applicant new zealand citizen family relationship temporary class visa unders 65of themigration act 1958 cth act applicant applied visa 20 july 2020 criterion new zealand citizen family relationship temporary class visa set schedule 2 themigration regulation 1994 cth regulation additional criterion prescribed division 2 1 ofpart 2of regulation regulation 2 03aaof regulation applies person required satisfy public interest criterion pic 4001 4002 reg 2 03aa 1 case cl 461 223 schedule 2 regulation requires applicant meet pic 4001 4002 applicant therefore required satisfy criterion reg 2 03aa 2 regulation 2 03aa 2 requires requested applicant provided statement relevant authority country person resides resided provides evidence whether person criminal history regulation 2 03aa 2 b requires requested applicant provided completed approved form 80 tribunal may waive requirement reg 2 03aa 2 reasonable applicant provide statement reg 2 03aa 3 tribunal cannot waive requirement applicant provide completed form 80 delegate refused grant visa 15 march 2022 basis applicant meet reg 2 03aa applicant provide police certificate requested australia made claim provided evidence satisfy delegate reasonable provide police certificate statement 29 march 2022 tribunal received australian police check issued australian federal police applicant dated 18 march 2022 following reason tribunal concluded matter remitted reconsideration consideration claim evidencethe issue case whether applicant provided statement appropriate authority provides evidence whether person criminal history applicant provided statement appropriate authority 2 february 2022 delegate made request applicant provide police certificate australia response provided time delegate decision application refused basis applicant meet subregulation 2 03aa 2 18 march 2022 applicant wrote tribunal stating never received email referred delegate decision record requesting australian police check stated upon receiving refusal decision immediately applied new police clearance attached afp payment receipt 29 march 2022 tribunal received police certificate issued australian federal police dated 18 march 2022 relating applicant applicant provided statement appropriate authority therefore meet reg 2 03aa 2 tribunal note completed form 80 included department file provided tribunal conclusionthere evidence delegate made request applicant provide completed approved form 80 therefore requirement reg 2 03aa 2 b apply tribunal observes completed form 80 provided application visa basis finding applicant meet reg 2 03aa 2 decisionthe tribunal remit application new zealand citizen family relationship temporary class visa reconsideration direction applicant meet following criterion subclass 461 visa regulation 2 03aa 2 meena sripathymember |
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FWCA 2917 (11 May 2016).txt | communication electrical electronic energy information postal plumbing allied service union australia 2016 fwca 2917 11 may 2016 2016 fwca 2917fair work commissiondecisionfair work act 2009s 185 enterprise agreementcommunications electrical electronic energy information postal plumbing allied service union australia ag2016 2832 distinct fire system pty ltd cepu nsw nfia sprinkler fitting fire protection union enterprise agreement nsw act 2015 2019plumbing industrydeputy president gostencniksydney 11 may 2016application approval distinct fire system pty ltd cepu nsw nfia sprinkler fitting fire protection union enterprise agreement nsw act 2015 2019 1 application made approval enterprise agreement known thedistinct fire system pty ltd cepu nsw nfia sprinkler fitting fire protection union enterprise agreement nsw act 2015 2019 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 basis material contained application accompanying statutory declaration satisfied requirement ofss 186 187and188as relevant application approval met 3 communication electrical electronic energy information postal plumbing allied service union australia bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 based statutory declaration provided organisation note agreement cover organisation 4 agreement approved 11 may 2016 accordance withs 54 operate 18 may 2016 nominal expiry date agreement 30 september 2019 deputy presidentprinted authority commonwealth government printer price code j ae418862pr580177 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 |
Bakardjieva Engelbrekt, Antonina; Joakim, --- "Introduction" [2010] ELECD 111; in Bakardjieva Engelbrekt, Antonina; Nergelius, Joakim (eds), "New Directions in Comparative Law" (Edward Elgar Publishing, 2010).txt | bakardjieva engelbrekt antonina joakim introduction 2010 elecd 111 bakardjieva engelbrekt antonina nergelius joakim ed new direction comparative law edward elgar publishing 2010 book title new direction comparative laweditor bakardjieva engelbrekt antonina nergelius joakimpublisher edward elgar publishingisbn hard cover 9781848443181section title introductionauthor bakardjieva engelbrekt antonina joakim number page 12extract introductionantonina bakardjieva engelbrekt andjoakim nergeliusthis book open bold claim argues discipline long andreverent history comparative law presently characterised animportant new dynamic taking new direction may objectthat inherent human nature generation perceives experi ences new unique scholar particularly susceptible thisproclivity overemphasise novelty given vocation related search thenew unconventional time scholarly work least theo retically premised notion scrupulous research rigorous method andhonest reporting allow verifying falsifying sweeping claimsand vague intuition level academic seriousness main tain something significantly new particular waycomparative law approached employed practised today compared withthe day montesquieu aristotle various contribution book give different partialanswers overarching question intuition embarking onthis project based number observation first probably atrivial one namely undeniable swing sway globalisation haveunleashed previously unseen mobility human economic resource supported virtually instantaneous ubiquitous communicationnetworks mobility produce dramatic increase human interactionacross geographical region inevitably corresponding interactionbetween different legal tradition institution mindset hughes |
Independent Education Union of Australia [2013] FWCA 6452 (2 September 2013).txt | independent education union australia 2013 fwca 6452 2 september 2013 2013 fwca 6452fair work commissiondecisionfair work act 2009s 185 enterprise agreementindependent education union australia ag2013 8530 fairfield nursery school inc employee collective agreementchildren servicesvice president lawlersydney 2 september 2013application approval fairfield nursery school inc employee collective agreement 2013 1 application made approval enterprise agreement known thefairfield nursery school inc employee collective agreement 2013 agreement application made pursuant tos 185of thefair work act 2009 act made theindependent education union australia agreement single enterprise agreement 2 satisfied requirement ofss 186 187and188of act relevant application approval met 3 independent education union australia nsw act branch 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 9 september 2013 nominal expiry date agreement 30 june 2016 vice presidentprinted authority commonwealth government printer price code j ae403659pr541131 |
2101471 (Refugee) [2023] AATA 2579 (29 June 2023).txt | 2101471 refugee 2023 aata 2579 29 june 2023 last updated 16 august 20232101471 refugee 2023 aata 2579 29 june 2023 decision recorddivision migration refugee divisionrepresentative mr harry huang marn 9579277 case number 2101471country reference chinamember catherine carney orsborndate 29 june 2023place decision sydneydecision tribunal affirms decision grant applicant protection visa statement made 29 june 2023 5 52pmcatchwordsrefugee protection visa china federal court remittal fear harm gangster attack applicant mentor applicant mentor death initial inaction police applicant complaint government detained abused accused anti government opinion departure passport bail guarantor paid bribe family harassed threatened country information strictly regulated exit procedure delay departing visa granted applying protection new passport issued australia vague inconsistent implausible claim evidence authenticity document decision review affirmedlegislationmigration act 1958 cth s 36 65 91rmigration regulation 1994 cth schedule 2casesmiac v szqrb 2013 fcafc 33szepz v mima 2006 fcafc 107 2006 159 fcr 291any reference appearing square bracket indicate information omitted decision pursuant tosection 431of themigration act 1958and replaced generic information allow identification applicant relative dependant statement decision reasonsapplication reviewthis application review decision made delegate minister immigration border protection department refuse grant applicant protection visa unders 65of themigration act 1958 cth act applicant claim citizen china applied visa 26 august 2014 delegate refused grant visa 22 july 2015 basis applicant person respect australia protection obligation 18 august 2015 applicant applied review refusal grant protection visa tribunal 18 november 2016 first tribunal held person hearing applicant 25 january 2017 first tribunal affirmed department decision 15 february 2017 applicant commenced judicial review proceeding first tribunal decision court case number 24 september 2019 federal circuit court australia dismissed application 4 october 2019 applicant filed application federal court australia judicial review federal circuit court decision court case number 3 february 2021 federal court australia remitted matter tribunal determination according law federal court australia found first tribunal fell jurisdictional error reasoning illogical respect guarantor document submitted applicant evidence claim matter present tribunal pursuant order court theapplicant appeared tribunal 27 june 2023 give evidence present argument tribunal hearing conducted assistance interpreter mandarin english language applicant represented relation review information considered remittal direction given reconstitute tribunal aat act requires reconstituted tribunal continue proceeding completing reconstituted review tribunal may regard record proceeding previously constituted includes record evidence taken proceeding tribunal must determine review dealing issue present time determination according fact tribunal find time inszepz v mima 2006 fcafc 107 2006 159 fcr 291 full court federal court found rrt decision set aside court matter remitted reconsideration owing jurisdictional error follow step procedure taken arriving invalid decision invalid tribunal still material obtained decision set aside made obliged continue complete particular review commence new review conducting review tribunal considered material provided tribunal oral evidence given previous hearing held tribunal differently constituted relevant lawthe criterion protection visa set 36 act schedule 2 themigration regulation 1994 cth regulation applicant visa must meet one alternative criterion 36 2 aa b c applicant either person respect australia protection obligation refugee criterion complementary protection ground member family unit person person hold protection visa class refugee criterionsection 36 2 provides criterion protection visa applicant visa non citizen australia respect minister satisfied australia protection obligation 1951 convention relating status refugee amended 1967 protocol relating status refugee together refugee convention convention australia party refugee convention generally speaking protection obligation respect 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 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 example serious harm set 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 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 persecuted convention stipulated reason real chance one remote insubstantial far fetched possibility person well founded fear persecution even though possibility persecution occurring well 50 per cent addition applicant must unable unwilling fear avail protection country country nationality stateless unable unwilling fear return country former habitual residence expression protection country second limb article 1a 2 concerned external diplomatic protection extended citizen abroad internal protection nevertheless relevant first limb definition particular whether fear well founded whether conduct giving rise fear persecution whether applicant person respect australia protection obligation assessed upon fact exist decision made requires consideration matter relation reasonably foreseeable future complementary protection criterionif person found meet refugee criterion 36 2 may nevertheless meet criterion grant protection visa non citizen australia respect minister satisfied australia protection obligation minister substantial ground believing necessary foreseeable consequence applicant removed australia receiving country real risk suffer significant harm 36 2 aa complementary protection criterion significant harm purpose exhaustively defined 36 2a 5 1 person suffer significant harm arbitrarily deprived life death penalty carried person person subjected torture cruel inhuman treatment punishment degrading treatment punishment cruel inhuman treatment punishment degrading treatment punishment torture defined 5 1 act certain circumstance taken real risk applicant suffer significant harm country arise would reasonable applicant relocate area country would real risk applicant suffer significant harm applicant could obtain authority country protection would real risk applicant suffer significant harm real risk one faced population country generally faced applicant personally 36 2b act 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 expressly protection status determination purpose extent relevant decision consideration consideration claim evidencethe issue case whether applicant person respect australia owes protection obligation following reason tribunal concluded decision review affirmed present tribunal department file first present tribunal file department file contains copy delegate decision record copy applicant foreign passport biodata page application form protection visa change address form dated 8 september 2014 copy english translation death certificate mr copy english translation death certificate m b copy english translation decision guarantor pending trial document copy first tribunal decision record dated 25 january 2017 notification grant bridging visa applicant copy department request attend interview dated 22 june 2015 request applicant provide biometrics first tribunal file contains copy application review refusal grant protection visa dated 18 august 2015 copy delegate decision record notification refusal applicant change contact detail form applicant applicant request tribunal issue medicare letter tribunal person hearing invitation 14 november 2016 hearing response form applicant copy statutory declaration applicant confirming claim protection dated 4 november 2016 part 1of tribunal hearing recording copy first tribunal decision record dated 25 january 2017 copy notification tribunal decision outcome applicant department copy notice filing application federal circuit court australia dated 15 february 2017 copy federal circuit court judgment dated september 2019 copy notice filing application hearing detail federal court australia dated 4 october 2019 copy federal court australia judgment dated february 2021 correspondence applicant representative advising tribunal court remittal tribunal dated 4 october 2022 present tribunal file contains copy applicant contact detail form tribunal acknowledgement court remittal letter applicant dated 9 february 2021 appointment authorised representative form applicant applicant request tribunal issuance medicare letter copy applicant movement record pre hearing attendance form following information provided applicant application protection visa department fujian province han ethnicity fluent speaker reader writer mandarin language identify religion separated two child marriage mother brother sister wife child reside china attended primary secondary school china occupation china occupation 1 however australia declared unemployed declared owned business china may 2005 december 2009 worked occupation 1 later worked workplace inner mongolia also occupation 1 march 2010 january 2014 first arrived australia holder australian visitor visa may 2014 applicant fear face arrest imprisonment state authority return china claim also face harassment harm hand town bully named mr c nationalitythe applicant claim citizen china copy applicant passport provided applicant chinese citizen applicant claimed department first tribunal citizen third country hold third nationality tribunal assessed applicant claim china country nationality purpose convention receiving country purpose 36 2 aa protection visa interviewthe applicant attended interview department 14 july 2015 delegate applicant discussed applicant claim protection department decision provided tribunal set discussion interview applicant spoke event lead involved mr c detained said master named mr dinner february 2014 chinese spring festival applicant said returned china inner mongolia celebrate festivity applicant said dinner mr c arrived mr home applicant claimed mr c told mr sell house within 2 week otherwise someone would occupy property fight broke applicant ended hit stick forehead chair thrown mr head applicant said delegate ended hospital coma three day master mr also ended hospital died applicant sustained concussion mr daughter reported event police told understaffed holiday applicant went report incident police told wait investigation continue applicant explained dissatisfied police action decided seek attention justice said arrested march 2014 village along many people number people went beijing complain arrested master issue reported city government four week hospital discharge date coming australia applicant approached public security bureau psb fuqing city anti corruption bureau fuqing city fuqing tv station street metropolitan time fuqing people radio station wanted get justice way expose corruption applicant said delegate detention police abused forced confess spread anti chinese government rumour detained two day two night sent detention spent three week bailed date march applicant said asked squat near toilet people could sit asked kneel face wall applicant said charged spreading anti chinese rumour convicted believed charged said police official investigating master issue surely protecting someone applicant said delegate ordered report police every week case finalised even though bailed left china case stage knowledge friend guarantor bailed applicant said problem leaving china friend named mr paid unknown amount money airport staff applicant could leave country applicant said friend mr filled application australian tourist visa also assisted applicant getting work mongolia applicant said idea information put australian tourist visa application applicant declared mr bailed prison charge money bring australia mr involved issue back china applicant would position disclose sensitive information prison affecting mr applicant could explain delegate mr helped applicant bailing leave country know consequence disclosing information confided mr would affect mr apply protection visa lot sooner shortly arrived australia familiar australia first tribunal decisionthe tribunal access partial recording hearing audio hearing applicant attended first tribunal 18 november 2016 applicant represented hearing confirmed hearing applicant claim based political opinion applicant chinese communist party ccp applicant confirmed first tribunal event unfolded night february 2014 recorded department beginning hearing applicant claimed mr c demanded buy mr house prior home visit february 2014 mr c offered 70 000 80 000 rmb mr house applicant stated remained hospital 3 day operation bruising wound neck back applicant told wait investigation went anti corruption body psb clarified hearing psb police applicant said reported incident police released hospital applicant said time report event police two daughter mr reported event police already first tribunal accept applicant criterion grant protection visa due inconsistency evidence inadequate evidence including difficulty tendered document present proceedingson 20 june 2023 tribunal received pre hearing submission applicant applicant provided statement dated 20 june 2023 following applicant mother harassed local psb police since applicant last appeared tribunal november 2016 applicant claim appeared tribunal regarded dangerous person spread rumour ccp incited people ccp violated bail condition fled overseas claimed applicant mother approached local police psb 2020 2022 applicant claim attending household conduct covid19 testing asked local authority applicant reminded tell applicant return home lenient punishment 5 may 2023 applicant mother last approached mr e newly appointed police officer taking carriage unresolved case local psb 27 june 2023 applicant appeared tribunal tribunal explained matter remitted tribunal reconsideration tribunal stated information supplied applicant department previously constituted tribunal summary oral evidence taken present tribunal follows applicant provided background information australia since 2014 working workplace australia mother son daughter living china number brother one sister china tribunal asked applicant feel cannot return china said word effect cannot return risk mr c stated even may someone came mother house urged return china turn tribunal asked person responded mr e charge unresolved case area tribunal asked expand fearful responded case 2014 return china claim arrested confess anti communist party china could get bail said confessed inciting public involved anti communist activity tribunal asked applicant expand stated arrested fight teacher master regarding property wanted go high official however want bring high official claimed due corruption tribunal asked anyone else arrested claim one arrested went police questioned stated people arrested regard case stated one arrested regarding fight property clarified one arrested village tribunal asked clarification happened responded word effect fight teacher beaten death tribunal asked beat death responded several thug led mr c tribunal asked detail tribunal noted serious crime stated earlier statement said victim daughter gone police report crime applicant agreed daughter reported crime police tribunal asked daughter arrested reporting crime responded simply reported police told wait short staffed due spring festival tribunal said independent country information previously discussed department delegate indicated police would act serious crime seek keep order agreed normally would investigate crime daughter reported told wait due spring festival tribunal asked information would targeted stated police cover stated gangster beat teacher influential background claimed gangster parent worked local prosecution uncle work security department tribunal asked position uncle held responded knew police officer know position applicant claim arrested way make petition official beijing claim mr c gangster already threatened caught convicted chinese government tribunal asked one arrested village responded tribunal put applicant statement said number people village arrested way put petition official beijing responded correct issue tribunal queried whether applicant suffered injury responded hospital beaten lost consciousness claim injured body least 6 7 area claim happened february claim anti communist trying report crime tribunal discussed applicant latest submission stated since appeared tribunal danger authority know put claim protection confirmed know threatened mother tribunal put applicant application protection visa treated confidentially name would published web made available responded word effect chinese authority doubt stayed australia long time tribunal put applicant claim doubt however issued new passport agreed issued new passport tribunal asked applicant word effect reason authority would concerned would come attention responded reason agreed detention anti communist tribunal clarified applicant claiming charged given bail responded correct tribunal asked able exit china bail responded friend mr paid bribe bail tribunal asked mr would put large amount money risk safety assisting flee bail responded mr driver good relationship responded mr sympathy applicant tribunal asked mr powerful man responded businessman could help get china tribunal discussed country information discussed applicant previously interview delegate set department decision would almost impossible exit international airport china passport concern authority responded use special mean tribunal discussed applicant police must concerned found left country responded tribunal asked would cancel passport would denied entry australian custom responded passport cancelled tribunal discussed applicant document provided department entitled decision guarantor pending trial document photocopy document written chinese tribunal stated document list applicant farmer according evidence file including department file incorrect applicant responded occupation hukou used farmer hukou claim case even though occupation 1 listed farmer hukou tribunal discussed applicant stated several time charged anti communist however document say charged disturbing public order responded thing tribunal discussed applicant granted visa enter australia 30 april 2014 responded friend able organise tribunal queried fearful leave china immediately waited another month arrived australia may 2014 responded word effect wait official custom bribed tribunal discussed applicant waited month lodged claim protection australia responded sure could speak english consult people tribunal queried applicant one arrested relation fight tribunal pointed murder serious crime responded one arrested previous evidence stated number villager arrested tribunal discussed applicant claim detained three week tribunal asked allowed bail given charge inciting anti communist behaviour viewed seriously china stated condition bail admit anti communist claim admitted anti communist would unable report crime official tribunal pointed asked several time arrested claimed one village arrested arrested detained tried report crime official beijing tribunal pointed written statement earlier evidence provided list medium organisation contacted however discus hearing applicant simply responded mention medium country informationexit leave proceduresat hearing tribunal discussed applicant dfat country information 2015 put applicant interview listed delegate decision dfat confirmed 2021 country report china exit entry procedure remain one strictest exit entry strictly regulated government know people enter leave country air seaport us artificial intelligence facial recognition software biometric database check passenger identity check identity document fraud various government agency feed data database including tax custom police judicial authority technology used create exit control list way list work clear ban may appear arbitrary 1 national security might cited reason refusing permission person associated leave country exit ban may become apparent airport travel attempted exit ban sometimes applied family member people residing outside china coerce foreign resident return china face charge suspected crime person interest national security ground activist human right defender may refused passport upon application already one may prevented leaving country due exit control list dfat also aware instance member certain ethnic minority group denied passport 2 person exit control list unlikely probably impossible would able leave china dfat seen evidence compassionate exemption granted person family health reason legitimate risk family member individual investigation chinese authority could subject exit ban sensitive charge also economic charge fraud 3 dfat ass almost impossible exit china without authority knowledge difficult impossible forge identity document would able used practice technology algorithm rather human official may liable bribery may make decision even human inspect document ordinary citizen would find difficult bribe border protection agent sensitivity corruption professional comparatively well paid status public security official 4 passportsdfat report according passport law 2006 ordinary passport applicant must apply person entry exit control department ministry public security authorised county level bureau hukou registered document substantiating reason application approved passport generally issued within 30 day 5 passport applicant must provide ric resident identity card hukou recent photo application form required permission enter reside country intending travel renewal might also require certificate chinese nationality term validity ordinary passport 10 year five year person aged 16 passport application may refused person serving prison sentence defendant criminal case criminal suspect according freedom house government refused passport million people ground many religious political dissident including uyghurs tibetan 6 document fraudin general fraudulent document china common scale fraud unmatched anywhere world fraudulent document criminal create highly sophisticated criminal syndicate may provide suite document asylum applicant application visa made online opportunity doctor copy genuine document uploaded system 7 finding reasonsdoes applicant well founded fear persecution determining whether applicant entitled protection australia necessary make finding fact relevant matter involves assessing credibility applicant claim tribunal accepts benefit doubt given asylum seeker generally credible unable substantiate claim tribunal make adverse finding relation material claim made applicant unable make finding confidence must proceed ass claim basis might possibly true however tribunal required accept uncritically allegation made applicant tribunal required rebutting evidence available find particular factual assertion applicant made tribunal found applicant witness lacked credibility tribunal found applicant vague unpersuasive implausible tribunal following concern applicant evidence cause tribunal question veracity document provided departmentthe applicant provided document department a4 document photocopy written chinese applicant provided translation document first document headed decision guarantor pending trial list applicant farmer always previously declared various occupation never farmer explained listed farmer hukou copy hukou provided original document provided tribunal translation guarantor document state case heading matter different name applicant name first sentence applicant name listed document stated guarantor mr f security bond placed suspect inconsistent applicant oral evidence friend mr paid bail security secure release document refers document third paragraph tribunal accept security bond would placed applicant given evidence charged considered serious crime china would result high official listening petition relation teacher master death hand gangster applicant also provided two photocopy certificate death one relation m b listed dying heart failure heading important information might related cause death promoted death nil second certificate death mr state farmer list beaten situation resulted death applicant evidence mr master taught occupation 1 business provide specified service attached never spoke farmer document appearance photocopy template tribunal provided original document due concern document ease could altered independent information discussed applicant delegate fraudulent document china dfat 3 march 2015which relevant time question tribunal accept genuine find produced assist applicant achieve preferred migration outcome staying australia applicant claim cannot return china february 2014 thug gangster attacked teacher fought result teacher died suffered serious injury required hospitalisation claim reported matter police claim police act thug connected official police family connection claim returned china family risk serious harm hand authority gangster element hometown claim due effort seek justice petition official beijing put detention confessed communist regime allowed bail claim bribe bail amount paid mr claim able leave china passport tourist visa stay australia australia since 2014 work work sector consideration claimsthe tribunal several concern applicant claim oral evidence lacked detail tribunal several time ask information clarify said also inconsistency oral evidence inconsistency may small looked individually weighed available evidence point applicant honest claim fear harm authority china applicant hearing claimed several time one reported crime claim one village arrested previous evidence department differently constituted tribunal stated victim daughter tried report crime claim police told short staffed due spring festival queried daughter harassed arrested simply responded accepted investigation could wait due spring festival previous evidence stated number villager arrested queried mentioned oral evidence responded stated villager concern oral evidence tribunal queried several time done nothing tried get matter reported wanted petition official beijing tribunal queried mentioned spent time approaching several medium outlet set written claim gave disingenuous response mentioned gave detail claim approached several medium outlet tribunal would considered approaching medium outlet would important part claim fear authority mainly controlled communist authority provide detail information assertion tribunal put applicant several time describing serious crime independent country information discussed previously indicates china functioning police force keep order investigates crime tribunal accept victim daughter would accept inaction psb murder father home due spring festival short staffed time police force maintain public order serious crime would investigated tribunal accept victim daughter would left alone force claim want harm reporting crime would accepted father death could investigated one brought justice due staff shortage tribunal accept claim one targeted police reporting crime applicant claim bailed bail able leave china passport claim able friend paid bribe tribunal asked information however unable persuasively verbalise friend would spend amount money risk family assist applicant leave china except say sympathetic claimed consistently mr put bail money however document provided stated security bond amount imposed applicant independent country information discussed applicant delegate tribunal indicates would extremely difficult someone wanted authority bail charged serious anti government crime exit china international airport passport queried would simply repeat corruption tribunal put applicant granted visa visit australia 30 april 2014 leave china 30 may 2014 put someone perilous position would expected move quickly simply responded needed thing place queried could secure visa process involves official china would aware watch list person interest simply repeated response know mr organised thing bribe provided applicant arrived australia may 2014 tourist visa cease 30 august 2014 applied protection visa 26 august 2014 given dangerous frightening circumstance claim faced china one would expect would applied protection visa soon possible response claim speak english get advice tribunal accept persuasive credible response able secure work community aware protection visa safety offer australia tribunal accepts three month given claimed circumstance applicant asserts facing one would imagine would moved immediately secure safety chinese authority issued applicant new passport applicant provided copy new passport tribunal claim since appearance differently constituted tribunal mother harassed china claim authority aware claimed protection australia see spreading rumour china tribunal put applicant tribunal process keep identity anyone claiming protection confidential name never published public unable attend hearing tribunal asked applicant thought authority become aware proceeding tribunal responded suspicious due australia long time explanation provided tribunal accept many people spend long time australia different reason either visiting family working tribunal accept alone would make authority suspicious put family risk harmthe chinese authority australia issued applicant new passport would indicate concern interest tribunal considered evidence find applicant claim lack credibility due concern set applicant general lack credibility apparent applicant lack detail inconsistency ineffective response tribunal concern question tribunal find applicant untruthful claim tribunal tribunal reject applicant involved reporting corruption involving police local government authority tribunal reject claim applicant attempted refer matter higher authority tribunal reject applicant claim spoke medium others corruption injustice tribunal reject applicant claim detained harassed tortured injured tribunal accept applicant charged serious crime anti communist disturbing public order tribunal accept applicant put bail able leave china international airport passport tribunal prefers independent country informational state would almost impossible exit china charged crime seen anti government tribunal accept applicant family targeted gangster associate return china tribunal accept mother family harassed threatened due applicant behaviour tribunal reject applicant claim local town government corrupt police intended harass kill detain applicant tribunal reject applicant claim applicant interest authority police criminal element influenced local government ultimately controlled chinese government considering applicant claim individually cumulative basis tribunal find applicant return china reasonably foreseeable future real chance persecuted reason political opinion membership particular social group convention reason applicant meet complementary protection criterion tribunal must also consider whether applicant meet criterion complementary protection person meet complementary protection criterion substantial ground believing necessary foreseeable consequence applicant removed australia receiving country real risk suffer significant harm significant harm purpose exhaustively defined act person suffer significant harm arbitrarily deprived life death penalty carried person person subjected torture cruel inhuman treatment punishment degrading treatment punishment cruel inhuman treatment punishment degrading treatment punishment torture defined 5 1 act section 36 2 aa act refers real risk applicant suffering significant harm real risk test imposes standard real chance test applicable assessment well founded fear refugee convention definition miac v szqrb 2013 fcafc 33 reason given relation real chance tribunal satisfied real risk kind significant harm set 5 1 tribunal satisfied substantial ground believing necessary foreseeable consequence applicant removed australia china real risk suffer significant harm therefore satisfy 36 2 aa conclusionfor reason given tribunal satisfied applicant person respect australia protection obligation 36 2 concluded applicant meet refugee criterion 36 2 tribunal considered alternative criterion 36 2 aa tribunal satisfied applicant person respect australia protection obligation 36 2 aa suggestion applicant satisfies 36 2 basis member family unit person satisfies 36 2 aa hold protection visa accordingly applicant satisfy criterion 36 2 decisionthe tribunal affirms decision grant applicant protection visa catherine carney orsbornmember 1 dfat country information report people republic china december 2021 dfat report 2021 5 31 2 ibid 5 32 3 ibid 5 33 4 ibid 5 35 5 dfat country information report people republic china 3 october 2019 dfat report 2019 5 56 6 dfat report 2021 n 1 5 39 5 40 7 ibid 5 45 |
Wilson v Tetley [2003] NSWCA 98 (2 April 2003).txt | wilson v tetley 2003 nswca 98 2 april 2003 last updated 8 may 2003new south wale court appealcitation wilson v tetley 2003 nswca 98file number 40244 2003hearing date 2 april 2003judgment date 02 04 2003parties dennis paul wilson v jason tetley trustee tetley cattle co trustjudgment mason p handley ja ipp jalower court jurisdiction supreme court equity divisionlower court file number ed 1955 03lower court judicial officer gzell jcounsel appellant j wheelhouserespondent appearancesolicitors appellant susan hillrespondent appearance max walsh co goulburn catchword application interlocutory injunction pending application leave appeal employee refuse provide information necessary proper record keeping whether damage adequate remedy whether interlocutory relief appropriate circumstance nd legislation cited decision application interlocutory injunction refused see also par 26 27 28judgment supreme courtof new south walescourt appealca 40244 2003ed 1955 2003mason phandley jaipp jawednesday 2 april 2003dennis paul wilson v jason tetleyjudgment1mason p claimant conduct business breeding murray grey cattle opponent mr tetley engaged claimant perform various service including assistance embryo flush programme connected artificial insemination two cow belonging claimant cow evidence valuable murray grey one pedigree name av72n 2 defendant worked part time claimant remuneration hourly rate necessary determine whether employee independent contractor 3 job included selecting cow artificial breeding preparing embryo flush administered third person choosing bull recording identity bull whose semen used artificially inseminate selected cow 4 breeder involved business seek sell embryo need position certify accordance apparently standard practice detail donor bull 5 serious falling claimant opponent although opponent participated insemination two cow would appear evidence taken record would enable certificate given date declined provide information evidence would enable claimant properly able certify identity donor 6 frozen embryo fifteen number cow av72n advertised sale annual murray grey exhibition take place tomorrow wodonga auction told scheduled 7pm 7 claimant commenced proceeding 19 march equity division sought three order alternative requiring defendant answer interrogatory attend orally examined court produce document designed provide requisite evidence would enable claimant give appropriate certificate order 1 2 3 summons order 4 sought claim damage order 5 claim order court see appropriate 8 proceeding came hearing time abridged heard yesterday gzell j 9 opponent present court filed affidavit circumstance come read called upon address court 10 gzell j considered affidavit evidence claimant heard claimant counsel gave extempore judgment dismissing paragraph one two three summons honour reserved cost application 11 reason given honour make tolerably plain intended deal finally prayer relief leave balance proceeding foot 12 honour persuaded plaintiff cause action damage breach contract unchallenged evidence proceeding indicated treated final regard first three prayer relief established serious breach contractual duty part opponent also would indicate opponent acted knowingly intent harm claimant interest although finding effect provisional attitude based material seen 13 despite reaching properly view conclusion breach duty giving rise cause action damage honour nevertheless refused claim specific relief really claim choice claimant honour satisfied embryo unique specific relief called order protect claimant interest 14 clear honour recognised would mean embryo cow av72n could sold tomorrow show 15 honour recognised would difficulty determining level damage nevertheless persuaded damage appropriate remedy 16 seems honour mind claimant interest adequately protected principle inarmory v delamiri 1722 1 stra 505 1722 ewhc kb j94 93 er 664which would indicate wrongdoer misconduct cloud water determining level damage expect liberal assessment damage made otherwise defendant taking advantage wrong 17 claimant determined appeal approach registrar yesterday registrar gave leave serve short notice summons returnable 2 15 today claimant made significant endeavour notify opponent likely opponent know proceeding clear served solicitor served evidence retainer accept service order made substituted service 18 circumstance view open court certainly appropriate court deal appellate proceeding final basis 19 discussion claimant indicated seek appeal continue determine client right respect cow bjr708 seek however interlocutory relief form ex parte interlocutory injunction court effect would require opponent provide verifying information time certificate completed enable auction go ahead tomorrow evening 20 merely question determining whether arguable prospect success appeal would hesitation granting interim injunction information seen today present view honour granted form relief sought proceeding course view provisional based upon heard opponent representative opponent mention say reason would decline interim relief sought 21 real problem seems combined effect significant risk order court gave would lack utility combined lack persuasion interest justice require interim relief given lest claimant right wholly destroyed 22 mean first proposition difficulty experienced date contacting serving opponent evidenced affidavit m hill give one great deal confidence interim injunction could prepared served upon opponent time deliver claimant relief seeking time show tomorrow 23 expressed general term melded together two factor view indicate case made exercise available nevertheless extraordinary jurisdiction court grant injunctive relief aid appellate proceeding 24 another issue debated whether relief sought could given light fact substance final relief summons proposition trouble issue would need overcome interim relief could granted 25 therefore propose application interlocutory injunction refused 26 secondly propose claimant leave amend summons leave make returnable 16 may 2003 10 15 according registrar next date court sits hear leave application 27 thirdly propose amended summons claimant summary argument document required inserted white book affidavit susan hill 2 april 2003 plus letter indicating claimant seeking matter proceed concurrent hearing served opponent le five day hearing date accordance pt 5 r4a 3 28 fourth liberty apply including liberty apply order substituted service ground shown 29handley ja agree 30ipp ja agree 31mason p order made court adjourn reconstitute last updated 07 05 2003 |
ADU18 v Minister for Home Affairs & Anor [2018] FCCA 3958 (29 November 2018).txt | adu18 v minister home affair anor 2018 fcca 3958 29 november 2018 last updated 6 february 2019federal circuit court australiaadu18 v minister home affair anor 2018 fcca 3958catchwords migration application protection visa country information adverse claim adverse credibility finding application dismissed legislation migration act 1958 cth section 473cbcases cited waee v minister immigration multicultural indigenous affair 2003 fcafc 184minister immigration citizenship v szmds 2010 hca 16 240 clr 611minister immigration citizenship v li 2013 hca 18 2013 249 clr 332applicant adu18first respondent minister home affairssecond respondent immigration assessment authorityfile number brg 19 2018judgment judge eganhearing date 29 november 2018date last submission 29 november 2018delivered brisbanedelivered 29 november 2018representationcounsel applicant m marrsolicitors applicant fisher dore lawyerscounsel first respondent m fordersolicitors first respondent minter ellisonordersit ordered 1 applicant granted leave file amended application dated 29 november 2018 2 amended application filed 29 november 2018 dismissed 3 applicant pay first respondent cost fixed amount 7 467 00 federal circuit courtof australiaat brisbanebrg 19 2018adu18applicantandminister home affairsfirst respondentimmigration assessment authoritysecond respondentreasons judgmentthe applicant citizen afghanistan arrived australia 3 february 2013 unauthorised maritime arrival 19 april 2016 applicant applied temporary protection subclass 785 visa 28 february 2017 delegate minister refused grant applicant protection visa delegate decision fast track reviewable decision accordingly referred immigration assessment authority authority review 14 december 2017 authority affirmed delegate decision application filed 11 january 2018 applicant sought judicial review said decision authority made 14 december 2017 hearing applicant granted leave file amended application marked exhibit 2 application five ground review ground 1 follows 1 iaa erred failing consider applicant claim rocket killed parent fired taliban b area lived rocket fired every day assertion authority failed consider applicant claim rocket killed parent fired taliban rocket fired every day authority clearly deal assertion context authority found applicant provided varying inconsistent evidence authority paragraph 48 reason authority recorded visa interview applicant asked several occasion whether faced problem experienced anything personally shia hazara living afghanistan applicant replied personally faced difficulty anyone family done authority found applicant failure raise claim past harm visa interview relation family undermined credibility later claim suffered harm afghanistan applicant story 46 48 authority reason recorded authority shifting shifted repeated questioning leading finding applicant deliberately misleading obfuscatory answer delegate interviewing officer 53 reason authority went find applicant would return live work family grocery seed business home area muqur district ghazni province returned afghanistan conceded behalf first respondent direct evidence applicant intended however evidence applicant family muqur district time departed afghanistan family including conducted grocery seed selling business reasonable circumstance authority infer returned afghanistan applicant would take involved business familiar also reasonable authority infer applicant would return place authority found place applicant would face harm mistreatment finding based relevant country information merit ground ground 2 application related question applicant found authority likely return muqur work former family business similar consideration apply ground first ground insofar addressed ground follows 2 iaa erred failing consider applicant claim integer claim clearly arose information iaa finding applicant would return work family business would travel road around muqur district elsewhere procure supply family grocery business evidence authority properly address issue relating rocket attack likelihood applicant returning work family business merit either ground tribunal may referred every part reasoning process arriving finding determinative seeapplicantwaee v minister immigration multicultural indigenous affair 2003 fcafc 184 per french sackville hely jj 47 said 47 inference tribunal failed consider issue may drawn failure expressly deal issue reason inference readily drawn reason otherwise comprehensive issue least identified point may unnecessary make finding particular matter subsumed finding greater generality factual premise upon contention rest rejected however issue raised evidence advanced behalf applicant contention made applicant issue resolved one way would dispositive tribunal review delegate decision failure deal published reason may raise strong inference overlooked specifically 50 reason iaa found follows 50 weighing everything find applicant witness credit prepared accept parent killed 2010 indiscriminate rocket attack aspect claim reasonably consistent notwithstanding concern evidence relating attendance father funeral however accept claim including sibling involved second rocket attack missing also accept applicant family ever faced threat mistreatment assault form harm including prevented practising faith local taliban muqur islamic state local sunni pashtun person group whether connection grocery business otherwise evidence rocket attack killed parent deliberate attack satisfied family ever targeted ethnicity faith muqur accept applicant claim contrary 53 authority reason authority found real chance applicant seriously harmed connection work family business village muqur 54 authority found applicant would returning afghanistan non practicing shia muslim whilst accepted escalation attack shia kabul area afghanistan found authority country information indicate corresponding escalation attack shia rise sectarianism shia ghazni province whether sunni taliban islamic state 55 reason found authority term ethnicity outside security situation road satisfied ethnic targeting hazaras feature security environment applicant home area muqur district ghazni 56 reason found authority country information indicate hazaras shia systematically targeted harm ghazni area real chance real risk applicant seriously harmed basis ethnic religious profile authority found paragraph 56 applicant grocer consider likelihood would return live work grocer home area link government international community find applicant higher profile beyond ethnic religious background reason consider would higher profile proximity person profile return country authority 62 also found country information indicate would risk applicant road home area village muqur authority satisfied taliban seeking target hazaras shia muqur authority found whilst absence recent attack shia hazara population ghazni province preclude possibility future attack considered chance applicant involved incident attack road put additional risk ethnic religious profile attack though credible remote merit assertion authority failed properly consider question risk applicant travel road muqur district within ghazni province ground 3 application review follows 3 iaa erred failing consider information required consider pursuant tos 473dbof themigration act evidence adduced delegate thata pashtun majority district would correspond applicant home district muqur safe due presence taliban andb pajhwok afghan news reported january 2016 muqur district direct threat taliban ground 3 refers part country information delegate authority referred earlier though authority may set detail every aspect reasoning process arriving decision cannot necessarily inferred take account content country information referred ground 2 reason authority stated regard material given secretary undersection 473cbof themigration act 1958 cth act otherwise made direct finding matter raised applicant reason 13 18 35 47 50 53 54 56 inclusive cannot asserted authority ignored relevant country information one look detailed reason handed authority news article referred formed part matrix fact authority authority appropriately dealt fact arriving finding made merit ground ground 4 application review follows iaa erred failing consider whether taliban may pose threat hazaras shia muqur district ghazni province afghanistan foreseeable future erred consideration whether application well founded fear persecution within meaning ofss 5hand5jof themigration act ground 5 application review follows iaa erred finding 53 reason decision applicant would return live work family grocery seed business home area muqur district ghazni province ii family business likely still ongoing b finding 56 reason decision likelihood applicant would return live work grocer home area made without insufficient evidence ground 4 5 subject considerable attention authority 54 55 reason authority authority satisfied ethnic targeting hazaras within afghanistan feature security environment applicant home area muqur district ghazni province 56 reason authority found 56 assessment corroborated country information information confirms ghazni volatile insecure province insurgent operating various district frequently carry activity resulting high number security incident however also important highlight majority attack province relate insurgency country information indicate hazaras shia systematically targeted harm ghazni area real chance real risk applicant seriously harmed basis ethnic religious profile area advice person group remain risk insurgent group afghanistan including within ghazni area associated government military medium international community applicant grocer consider likelihood would return live work grocer home area link government international community find applicant higher profile beyond ethnic religious background reason consider would higher profile proximity person profile return country country information indicate hazaras shia systematically targeted harm ghazni area real chance real risk applicant seriously harmed basis ethnic religious profile area authority appropriately addressed question whether applicant would likely suffer real chance real risk harm cannot said relation finding authority rational logical decision maker could made decision come conclusion authority seeminister immigration citizenship v szmds 2010 hca 16 240 clr 611at 130 neither could said respect ground 4 5 application review decision arrived authority legally unreasonable one lacking evident intelligible justification concept subject consideration inminister immigration citizenship v li 2013 hca 18 2013 249 clr 332at 66 76 said 66 approach deny area within decision maker genuinely free discretion area resides within bound legal reasonableness court conscious exceeding supervisory role undertaking review merit exercise discretionary power properly applied standard legal reasonableness involve substituting court view discretion exercised decision maker accepting standard reasonableness applied way however explain applied tested 76 inference may drawn appellate court said house v king appellate court may infer way failure properly exercise discretion upon fact result unreasonable plainly unjust reasoning might apply review exercise statutory discretion unreasonableness inference drawn fact matter falling consideration exercise statutory power even reason provided case may nevertheless possible court comprehend decision arrived unreasonableness conclusion may applied decision lack evident intelligible justification assertion ground 5 evidence upon authority based finding applicant would return live work family grocery seed business family business ongoing ample evidence suggest experience past business applicant could reasonably inferred someone likely return business merit ground circumstance therefore application review dismissed certify preceding thirty one 31 paragraph true copy reason judgment judge eganassociate date 4 february 2019 |
1002730 [2011] MRTA 3066 (22 December 2011).txt | 1002730 2011 mrta 3066 22 december 2011 last updated 10 january 20121002730 2011 mrta 3066 22 december 2011 decision recordapplicants mr waltraut ida klara schindelarmr ludwig elia schindelar deceased mrt case number 1002730diac reference clf2008 93581tribunal member kira raifdate 22 december 2011place decision sydneydecision tribunal remit application contributory aged parent residence class dg visa reconsideration direction first named applicant meet following criterion subclass 864 contributory aged parent visa pic 4005 1 b c purpose cl 864 223 schedule 2 regulation tribunal jurisdiction respect second named applicant statement decision reasonsapplication reviewthis application review decision made delegate minister immigration citizenship refuse grant applicant contributory aged parent residence class dg visa unders 65of themigration act 1958 act applicant applied department immigration citizenship visa 14 april 2008 delegate decided refuse grant visa 22 march 2010 notified applicant decision review right delegate refused application second named applicant satisfy cl 864 223 schedule 2 themigration regulation 1994 regulation satisfy health criterion public interest criterion pic 4005 schedule 4 regulation applicant applied tribunal 14 april 2010 review delegate decision tribunal find delegate decision mrt reviewable decision 338 2 act tribunal find applicant made valid application review 347 act relevant lawthe issue review whether applicant meet health criterion referred cl 864 223 grant contributory aged parent residence class dg visa regulation 2 25aof regulation requires tribunal seek opinion medical officer commonwealth moc determining whether person meet requirement pic 4005 1 4005 1 b 4005 1 c 4006a 1 4006a 1 b 4006a 1 c 4007 1 4007 1 b 4007 1 c schedule 4 regulation unless application temporary visa information known immigration effect person may meet requirement application permanent visa made gazetted country information known immigration effect person may meet requirement health criterion relevant class visa pic 4005 state 4005 1 applicant aa applicant class person specified minister instrument writing paragraph must undertake medical assessment specified instrument ii must assessed person specified instrument unless medical officer commonwealth decides otherwise ab must comply request medical officer commonwealth undertake medical assessment free tuberculosis b free disease condition may result applicant threat public health australia danger australian community c free disease condition relation person would likely require health care community service b meet medical criterion provision community service period described subclause 2 ii provision health care community service would likely result significant cost australian community area health care community service b prejudice access australian citizen permanent resident health care community service regardless whether health care community service actually used connection applicant applicant person medical officer commonwealth requested signed undertaking present health authority state territory intended residence australia follow medical assessment provided undertaking 2 subparagraph 1 c period application permanent visa period commencing application made b application temporary visa period minister intends grant visa ii visa subclass specified minister instrument writing subparagraph period commencing application made 3 sub subparagraph 1 c ii apply applicant would eligible provision health care community service b ineligibility would due temporary visa applicant applying particular subclass c subclass specified minister instrument writing made subparagraph 2 b ii deciding whether person meet requirement pic 4005 1 1 b 1 c tribunal take opinion moc correct r 2 25a 3 claim evidencethe tribunal department file relating visa applicant tribunal also regard material referred delegate decision material available range source applicant national germany applied contributory aged parent class dg visa 14 april 2008 processing application applicant required undertake medical examination 26 november 2009 medical officer commonwealth formed opinion second named applicant meet health requirement result 22 march 2010 delegate decided refuse grant visa applicant delegate found second named applicant meet pic 4005 cl 864 223 applicant sought review delegate decision 14 april 2010 7 october 2010 tribunal received advice first named applicant spouse passed away copy death certificate provided tribunal 25 november 2011 tribunal wrote applicant inviting undertake medical examination result earlier examination expired 21 december 2011 applicant provided tribunal copy advice medical officer commonwealth stating applicant met health requirement finding reasonsms schindelar informed tribunal spouse mr ludwig elia schindelar passed away tribunal satisfied circumstance set second named applicant died accordingly tribunal find longer valid application therefore tribunal jurisdiction review delegate decision respect second named applicant time application applicant holder contributory aged parent temporary visa holder substituted subclass 676 visa accordingly tribunal find applicant must satisfy public interest criterion 4005 purpose cl 864 223 21 december 2011 applicant provided tribunal advice medical officer commonwealth dated 12 december 2011 met health requirement tribunal find present case moc provided opinion applicant meet health requirement tribunal regard federal court decision inrobinson vmimia 2005 fca 1626andramlu v mimia 2005 fmca 1735and satisfied moc apply wrong test matter tribunal bound accept final assessment moc correct purpose deciding whether applicant satisfies health criterion accordingly based opinion moc tribunal find applicant satisfies pic 4005 1 b c conclusionsthe tribunal finding mean matter remitted reconsideration direction applicant meet pic 4005 1 b c purpose cl 864 223decisionthe tribunal remit application contributory aged parent residence class dg visa reconsideration direction first named applicant meet following criterion subclass 864 contributory aged parent visa pic 4005 1 b c purpose cl 864 223 schedule 2 regulation tribunal jurisdiction respect second named applicantkira raifsenior member |
Industrial Relations Commission Decision 360_1995 [1995] AIRC 166;
(14 February 1995).txt | industrial relation commission decision 360 1995 1995 airc 166 14 february 1995 industrial relation commission decision 360 1995 a1236 dec 360 95 print l9496 australian industrial relation commissionindustrial relation act 1988s 99notification industrial dispute royal australian nursing federation private hospital nursing home association others c 00606 1983 170ma certification agreement australian nursing federation another c 30065 1995 alfred group hospital continuous improvement enterprise agreement 1995 doc l9497 a1236 nurse health welfare service commissioner tolley brisbane 14 february 1995 condition employment certified agreement 170maindustrial relation act 1988 requirement act met agreement certified reason decision matter application australian nursing federation alfred group hospital certification agreement 170ma theindustrial relation act 1988 agreement applies operation alfred group hospital victoria subject restriction contained clause 2 agreement applicable part single business purpose 170mc 1 g basis submission party statutory declaration submitted accordance rule 30a 3 satisfied agreement meet relevant requirement 170mc also satisfied ground refusing certify agreement 170md identified relevant employee namely woman satisfied employee consulted informed matter described 170mc 1 f appropriate manner effect term agreement properly explained consequently certify agreement effect 25 january 1995 appearance c treacy australian nursing federation jonef alfred group hospital hearing detail 1995 melbourne january 25 end text end text |
Nugara v Hennessy (Tenancy) [2003] NSWCTTT 668 (1 September 2003).txt | nugara v hennessy tenancy 2003 nswcttt 668 1 september 2003 last updated 10 may 2006nugara v hennessy tenancy 2003 nswcttt 668 1 september 2003 consumer trader tenancy tribunaltenancy divisionapplication rt 03 25747applicant b nugararespondent hennessyapplication claim unpaid rentappearance applicant personthe respondent m dowsetthearing 18 july 2003legislation residential tenancy act 1997issues agreement pay rent performance work landlord property work carried keywords rent paid work caretakerorders1 application dismissed considered material placed tribunal satisfied civil standard proof ground required make order sought established reason decisionsapplicationthe applicant sought order compensation unpaid rent arising residential tenancy agreement undated commencing 1 february 2002 applicant evidencethe applicant husband purchased farming property respondent applicant respondent entered residential tenancy agreement dwelling described farm property tenancy commencing 1 february 2002 ending 28 june 2002 rent 100 00 per week respondent vacated premise late july 2002 applicant claim 28 1 2 week rent amount 2 850 00 oral agreement respondent rent could offset respondent undertaking caretaking work farm 10 00 per hour applicant pay rent render account work done farm work carried sufficient offset rent submitted examining diesel fuel purchase visual inspection applicant family member sufficient work carried respondent credit rent work done applicant account business operated propagating tree selling fruit claimed respondent sold fruit local market came farm account proceeds m rangi gave evidence applicant seen respondent market two three occasion selling fruit applicant displayed photo appeared taken farm market stall significance made clear also said farm bad order time respondent vacated respondent evidencethe respondent confirmed oral agreement excepting rate work would 10 00 per hour however respondent willing accept rate demand rent made respondent filed claim local court pocket expense incurred performing caretaking work particularly vacating premise applicant made demand payment rentthat respondent carried least 20 hour work farm week supported eight letter statutory declaration neighbour friend knowledge property could see r green respondent former husband gave evidence owned property 7 year prior applicant visited property average 2 day week term respondent tenancy estimated keep property condition saw would take least 20 hour work week findingsthe applicant evidence work carried property based limited observation mainly last week tenancy respondent evidence demand payment rent applicant uncontested matter rely determination application appears issue non payment rent arose respondent made claim reimbursed expense incurred role caretaker applicant property prefer respondent evidence work carried property established satisfaction tribunal work amounted least 20 hour per week circumstance find respondent fulfilled obligation pay rent pursuant tenancy agreement applicant established satisfaction tribunal rent owing applicant respondent arising tenancy agreement dismiss application b pickardmemberconsumer trader tenancy tribunal1 september 2003 |
Greater Bendigo Lake Eppalock AC (Call-In) [1998] PPV 19 (6 March 1998).txt | report advisory committee appointed hear submission respect proposal subdivision site near speedboat road lakeside road lake eppalock permit application 441197 442197 greater bendigo planning scheme planning appeal no 1997163178 63186 panel peter davy chairman member christine forster member date appointment appointed section 151 1 planning environment act 8 december 1997 date hearing 19 december 1997 direction hearing 28 30 january 1998 hearing venue heathcote service centre higb street heathcote date submission report 6th march 1998 advisory committee declara non advisory committee appointed section 151 planning environment act 1987 minister planning local government hear submission made respect proposal subdivision site speedboat road lakeside boulevard lake eppalock embodied permit application 441197 442 97 greater bendigo planning scbeme planning appeal no 1997 63178 1997 63186 hereby submits minister planning local government report associated recommendation set attached advisory committee report til dated g day march 1998 christine forster member eppalock summary summary minister planning local government appointed advisory committee examine two appeal refusal application subdivision proposed f l hill hill greater bendigo city council issued notice refusal grant permit proposed subdivision related proposal subdivide land close proximity lake eppalock subdivision related land lakeside boulevard proposed residential subdivision seeking create 12 residential lot land vicinity speedboat road proposed rural subdivision seeking create 81 rural living lot various size correspondence dated 3 november 1997 registrar planning division administrative appeal division minister planning local government indicated section 41 1 planning appeal act 1980 sought referral appeal governor council determination direction made ground minister formed view appeal may raise major issue policy relation lake eppalock decision may substantial effect development planning objective minister planning local government appointed advisory committee consider planning merit proposed subdivision address issue raised regard submission made respect matter prior advisory committee public hearing direction hearing held heathcote hearing advisory committee drew proponent attention need provide detailed background information proposed subdivision supporting information accompanied subdivision drawing attention drawn ministerial direction 6a relating rural residential subdivision background information whlch direction required rezoning proposal following request provide supporting information proponent produced three supporting document reviewed advisory committee hearing proponent revised extensive 81 lot proposal known derrinal subdivision replaced two option namely 41 43 lot subdivision general principle twelve lot proposal known lakeside boulevard subdivision retained additional 14 lot proposal produced general area serious endeavour made pursue 14 lot alternative detail revised information made available party associated advisory committee process copy information also held heathcote office city greater bendigo public perusal advisory committee indicated proceeding would dealing initial information accompanied planning permit rather would exploring revised proposal supporting information made available interested party proponent retained consultant advisory committee hearing principle subdivision detailed outline provided environmental management concept subdivision envisaged lot wo j serviced septic tank would need self sufficient regard water collection supply eppalock summary ii proponent consultant placed great stress upon geological characteristic area would aid inhibiting possibility septic tank treated effluent moving water lake eppalock anticipated 300 400 sq metre roof area would generate adequate supply water possibility exist draw water lake eppalock lakeside boulevard area general water usage washing maintenance goulbum murray water department natural resource environment coli ban water opposed subdivision ground conform existing planning control rural area instance lakeside boulevard conform required setback distance lake eppalock setback distance introduced protect water lake eppalock addition body placed great significance upon need observe approved government guideline relating land development environs lake eppalock approved 1983 land use determination made respect environs 1985 latter document recognised current binding document catchm nt land protection act 1994 document sought maintain 40ha minimum subdivision control buffer control lake eppalock addition attention drawn performance measure found epa code septic tank indicated septic tank system set back 300 metre water storage used domestic supply great emphasis placed upon need protect water lake eppalock particularly given use portion water domestic supply part bencligo township area algal bloom experienced lake eppalock water ecoscience appeared goulbum murray water stressed need minimise possible impact waste could increase phosphorous lake water ratio 7 part nitrogen 1 part phosphorous transgressed algal bloom could eventuate currently ratio exceeded concern held allowed approach ed attrition proposed subdivision viewed part attrition process city greater bendigo supportive attitude taken water management body department natural resource environment addition city greater bendigo cogrusant responsibility endowed upon amalgamation process whereby responsible planning lake eppalock environs prior amalgamation planning performed three rural shire council cliverse control existed environs part vpp process allied confronted application advisory committee council taken policy decision implement strategic development framework sustainable use lake eppalock area proposal considered timely given amalgamation council time frame existed since introduction existing approved government guideline 1983 1985 regard water quality development issue detail provided advisory conunittee number local submission reviewed advisory committee number submitter appeared advisory conunittee submitter strenuously opposed subdivision supported view authority council instance large rural subdivision local submitter expressed significan concern possible land management problem viewed subdivision concept entirely contrary planning development guideline land use determinatio n respect lake eppaiock concept 40 ha minimum supported eppalock summary iii advisory committee following review presented material considered 43 rural residential subdivision vicinity speedboat road known derrinal subdivision supported regard 12 lot subdivision lakeside boulevard advisory committee support proposal support site specific amendment two lot subdivision area strong control waste management including need installation dry composting facility future dwelling advisory committee opposed subdivision ground imperative afford utmost protection lake eppalock water existing guideline land use determination control merited strong support addition proposal viewed meeting requirement set ministerial direction regard rural residential development proposal advisory committee recognises fmding regard lakeside boulevard appears entirely contrary general stance policy matter advisory committee considered subject land planning anachronism form reasonable planning function assigned site proposed treatment relevant planning control assigned advisory committee best appreciated detailed reading advisory committee report associated recommendation table content 1 matter advisory committee 1 1 1 appointment advisory committee 1 2 general background lake eppalock area 3 3 variation initial proposal 4 3 1 direction hearing 4 3 2 variation proposal contained initial permit application 5 4 zoning detalls 7 4 1 lakeside boulevard area 7 4 2 derrinal area 8 4 3 proposed planning scheme provision resulting implementation vpps 9 5 land use determination guideline lake eppalock catchment protect water qualtiy 12 5 1 specific controlling document 12 5 2 guideline lake eppalock catchment 12 5 3 land use determination environs lake eppalock 14 6 det alls revised subdivision 17 6 1 supporting information proposed subdivision lake eppalock 17 6 2 general substance supporting document 17 6 2 1 lakeside boulevard proposal 17 6 2 2 derrinal estate vicinity speedboat road 19 6 2 3 relationship respect initial objection 23 6 2 4 environmental management report derrinal housing development lake eppalock 28 6 2 5 environmental management report lakeside boulevard lake eppalock 34 7 city greater bendigo ground refusal 40 7 1 relationship lake eppalock city greater bendigo 40 7 2 specific council concern regard proposed subdivision 41 7 3 establishment strategic development framework sustainable use lake eppalock area 43 7 3 1 approach project 43 7 3 2 scoping issue 44 7 3 3 draft strategic development framework 45 7 3 4 way forward 46 7 3 1 approach project 43 8 referral body concern 48 8 1 referral body interest proposed subclivisions 48 8 2 goulburn murray water submission 48 8 2 1 water ecoscience report 51 8 3 coliban water corrunents 53 8 4 department natural resource environment 54 9 resident submission 58 9 1 general remark 58 9 2 lakeside boulevard concern 58 9 3 derrina concern 59 10 review code practice septic tank site domestic wastewater management 61 11 panel commentary 64 11 1 introductor remark 64 11 2 appropriateness seeking approval subdivision principle permit system 67 11 3 function role lake eppalock 68 11 4 strategic principle environs lake eppalock 69 11 review lakeside boulevard proposal 75 1 possible use lot 21 77 1l 6 review derrinal subdivision proposal 82 11 6 1 lot size relationship site nearest urban area 83 1l 6 2 site characteristic 85 1l 6 2 1 water resource 87 1l 6 2 2 handling waste water 87 1l 6 2 3 use land perceived economic benefit servicing 89 11 7 summary advisory committee response 91 12 advisory committee recommendation 93 appendix 1 advisory committee term reference 96 appendix 2 appeal call mr p bentley whitehor se geoscience pty ltd 99 appendix 3 overview general principle dry composting system 102 appendix 4 documentation presented advisory committee investigation 105 appendix 5 person appearing advisory committee l08 advisory committee reviewing subdivision lake eppalock 1 matrers advisory commitree 1 1 appointment advisory committee minister planning local government appointed advisory committee examine two appeal refusal application subdivision lake eppalock proposed f l hill aj hill greater bendigo city council issued notice refusal grant permit proposed subdivision related following proposal planning permit application 441 97 lakeside boulevard residentia l subdivision seeking create 12 residential lot subsequent appeal proponent administrative appeal board identified planning appeal 1997 63178 planning permit application 442 97 speedboat road rural subdivision seeking create 81 rural living lot various size subsequent appeal proponent administrative appeal board identified planning appeal 197 63186 correspondence dated 3 november 1997 registrar planning division administrative appeal division minister planning local government indicated section 41 1 planning appeal act 1980 sought referral appeal governor council determination direction made ground minister formed view appeal may raise major issue policy relation lake eppalock decision may substantial effect development planning objective minister planning local government drew term reference advisory committee consider planning merit proposed subdivision address issue raised regard submission made respect matter specific term reference advisory committee set appendix 1 advisory committee report advisory conunittee reviewing subdivision lake eppalock 2 term reference indicate achieving required outcome term reference advisory committee must produce report providing response consideration planning merit proposed subdivision issue raised submission recommendation whether planning permit granted condition recommendation planning scheme amendment may required facilitate subdivision recommended approved advisory committee reviewing subdivision lake eppalock 3 2 general background lake eppalock background provided give general perspective broad area within proposal advisory committee located extracted summary provided document presented advisory committee environmental service management pty ltd consultant retained city greater bendigo water campaspe coliban river impounded lake eppalock since 1962 earth rockfill area constructed near confluence two river retains water catchment 2124 square kilometre catchment extends lake mount macedon trentham great dividing range lake eppalock posse one largest water surface impoundment area victoria hold 312 700 megalitres water surface area full 3 200 ha water lake used irrigation stock domestic purpose downstream also heathcote bendigo responsibility allocation water lake eppalock together management crown land shoreline area lie goulburn murray water coliban water retail water sourced lake user bendigo total 258sq kilometre environment lake subject land use determination 1966 review made determination 1985 1985 documentation incorporated guideline development lake eppalock prepared interdepartmental committee lake eppalock adopted state government 1983 relevant aspect documentation embodied later section advisory committee report arlv isol commillee reviewing subdivision lakt eppalock 4 3 variation initial proposal 3 1 direction hearing prior advisory committee public hearing direction hearing held heathcote one prime purpose hearing draw proponent attention need provide much detailed background information proposed subdivision subdivision proposal presented council subsequently circulated referral body comment accompanied supporting information merely simple line drawing proposed lot attempt made illustrate relationship boundary lake eppalock provide detail existing site condition surveyor associated detail ego contour soil characteristic supporting report provided indicate proposal would deal council requirement residential development vicinity lake eppalock inter relationship policy past council attitude subdivision lake eppalock area attempt made show likely building envelope reference made current land zoning manner proposal inter related existing zoning subdivision control rural residential zone proponent seek provide information city greater bendigo even though known proposed subdivision conform existing planning control subdivision proposed could successfully implemented rezoning obtained direction hearing advisory committee strongly advised proponent provide background information enable sensible discussion occur principle proposed subdivision possible environmental impact relationship policy aspect attention drawn ministerial direction 6a relating rural residential subdivision background information direction required rezoning proposal advisory committee reviewing subdivision lake eppalock 5 proponent attended hearing consultant whitehorse geoscience pty ltd consultant recognised need supporting information mr p bentley one consultant sought appeal call advisory committee gain access broad range information copy information listed appendix 2 advisory committee report advisory committee reviewed item appeal call endeavoured determine present preliminary meeting appropriate contact would facilitate response nominated information request required item made available advisory committee indicated exchange information must made major party bringing forward information hearing advisory committee indicated additional report statutory body council proponent made available 14th january 3 2 variation proposal contained initial permit application following request provide supporting information proponent produced three supporting document reviewed advisory committee proponent revised extensive 81 lot proposal known derrinal subdivision replaced two option namely 41 43 lot subdivision general principle twelve lot proposal known lakeside boulevard subdivision retained additional 14 lot proposal produced general area serious endeavour made pursue 14 lot alternative revised subdivision plan accompanied planning report proposed subdivision environmental management report subdivision addition plan relating derrinal area tabled portrayed following contour area land capability appraisal base subdivision plan allow overlaying two plan detail revised information made available party associated advisory committee process copy advisory committee reviewin g subdivision lake eppalock 6 information also held heathcote office city greater bendigo public perusal advisory committee indicated proceeding would dealing initial information accompanied planning permit rather would exploring revised proposal supporting information made available interested party advisory committee undertaken detailed review revised information section 6 report advisory committee reviewing subdivisi ons lake eppalock 7 4 zoning detail 4 1 lakeside boulevard area accordance greater city bendigo planning scheme chapter 9 mcivor subject land included two zone residential zone rural zone application subdivide highlighted apparent discrepancy zoning lot 21 subject land subdivided twelve lot original planning scheme document dated 1967 reveals lot 1 20 zoned residential 1 lot 21 balance land zoned rural 1988 shire mcivor developed planning scheme balance shire scheme known chapter 2 mcivor planning scheme eppalock chapter also incorporated became chapter 1 mcivor planning scheme conjunction development scheme new black white plan prepared department planning chapter 1 would appear time drafting error occurred resulted line boundary residential zone rural zone running partly lot 21 amendment planning scheme occurred formalise variation planning scheme contain provlslon specifically address situation land parcel lie within two zone council addressing permit application made assessment basis part application located within residential zone part located within rural zone panel note study line drawing approximately scaling indicates portion land possessing residential zoning area order 6 500 sq metre rural zone component approximate area 9 500 sq metre clause 9 2 residential provlslons state planning permit required subdivide land clause 9 2 aa indicates lot shall minimum 650 sq metre clause 9 2 indicates residential area sewerage absorption drain shall terminate least 100 metre full supply level lake eppalock except accordance permit granted responsible authority closer full supply level lake eppalock 30 metre sullage drain shall located satisfaction responsible authority advisory committee reviewing subdivision lake eppalo k 8 clause 2 provision rural zone specifies planning permit required subdivision land proposal comply exempt subdivision provided clause 7 2 chapter 2 minimum lot size permitted within zone 16ha location dwelling rural zone component would permitted planning scheme provision referral body would relate deliberation proposed subdivision policy principle 40ha minimum environs lake eppalock see also reference 4 2 expanded detail section 5 advisory committee report document consulted referral body 4 2 derrinal area derrinal area covered rural zone outlined respect lakeside boulevard property result minimum lot size within zone 16ha value variance 1983 guideline value policy various referral authority permit subdivision lot 40ha minimum within lake eppalock catchment area authority apply policy principle 40ha minimum referral provision listing found clause 8 1 chapter 10 application constraint subdivision arises authority utilising reference subdivision constraint found land use determination document known eppalock water supply catchment review land use determination environs lake eppalock document known water quality development issue guideline lake eppalock catchment refer section 5 advisory committee report expanded detail document event referral authority objecting subdivision proposal council must provision section 61 2 planning environment act refuse planning permit application subdivide following specific control regard location building respect lake eppalock found rural zoning provision building shall erected closer 100m full supply level lake eppalock sewerage absorption drain shall terminate least 100m full supply level lake eppalock except accordance permit granted responsible authority may specify lesser distance building shall constructed closer 40 metre full supply level lake eppalock sewerage absorption drain shall terminate least 30 metre full supply level lake eppalock advisory commitlce reviewing subdivisi ons lake eppalock 9 4 3 proposed planning scheme provision resulting implementation victorian planning scheme provision application vpps associated new planning scheme publicly exhibited land parcel proposed included within environmental rural zone eppalock fringe zone 40ha minimum subdivision requirement land eppalock fringe would prohibit proposed subdivision subdivision control value keeping control found guideline land use determination documentation outlined section 5 advisory committee report setting value city greater bendigo following general directive relating introduction new scheme broad principle found existing scheme associated document preserved new scheme posse number overlay provlslons land embraced lakeside boulevard proposal would fall following overlay opol environmental management plan es03 eppalock proclaimed catchment case oerrinal subdivision following overlay interest opoi environmental management plan es03 eppalock proclaimed catchment vp02 site botanical significance part smoo salinity management part brief comment attribute overlay follows dpoi environmental management plan purpose overlay ensure development potential harm natural environment carried environmentally sustainable manner application dpoi area would need provide information collated approved land management specialist information would include detailed site analysis plan showing permanent seasonal waterway detailed topographic feature existing vegetation environmental feature area localised groundwater discharge recharge degraded land soil type depth boundary catchment advisory committee reviewing subdivi m lakl eppalock 10 use development plan showing type intensity use development building envelope lot boundary detail land forming dam detail service infrastructure would also necessary demonstrate consistency purpose zone vegetation special feature would retained enhanced visual impact minimised risk minimised consistency local regional land management strategy es03 eppalock proclaimed catchment overlay set place building work control native vegetation removal control objective control promote appropriate management recharge area maintain groundwater quality encourage revegetation application proposed subdivision would referred goulburn murray water department natural resource environment reviewing application responsible authority would required consider following potential surface groundwater recharge contamination site waste disposal north central catchment strategy recommendation septic tank code practice impact vegetation removal land forming drainage pattern consequent water quality decline vp02 site biological significance overlay planning approval would required removal native vegetation control recognises native vegetation retention necessary maintaining water quality control salinisation acidity water logging prevent erosion responsible authority must consider advice relevant catchment management authority department natural resource environment smoq salinity management control recognises saline discharge salinisation land water present problem agricultural urban land advi ory committee reviewing subdi ion lake eppalock ii substantial information detailed overlay control provided responsible authority required reference broad range background policy planting strategy comment obtained department natural resource environment panel note detail city greater bendigo vpps based amendment relationship proposed subdivision considered detail section 6 2 3 advisory committee reviewing subdiv sion lake eppalock l2 5 land use determination guideline lake eppalock catchment protect wa ter quality 5 1 specific controlling document following document embody control directed towards protecting water lake eppalock water quality development issue guideline lake eppalock catchment eppalock water supply catchment review land use determination environs lake eppalock document significance goulburn murray water coliban water department natural resource environment 5 2 guideline lake eppalock catchment document bearing title water quality development issue guideline lake eppalock catchment produced june 1983 state government document indicated interdepartmental committee comprising representative department planning soil conservation authority state river water supply commission set develop guideline desirable development provlszons lake eppalock environs catchment consistent maintenance good water quality lake principally urban use following consultation municipal council local concerned community group specific consultation technical officer agreement reached main interested party water quality development i e guideline lake eppalock catchment june 1983 guideline represented guideline adopted state government following review guideline emerged recommendation interdepartmental committee completion consultation process advisory committee reviewing subdivisiolls lake eppajock 13 minor variation made government interdepartmental committee final recommendation variation embodied june 1983 guideline following extract direct interest subdivision consideration key issue provision small rural lot catchment area located close existing service facility physically support development catchment area iv development restricted identified particular physical constraint affecting suitability use development including land potentially actually subject salting erosion landslip flooding fire catchment area vi general broad rural farming area catchment covered subdivision control specify 40ha minimum size lot catchment area ix application listed provision relating land classified soil conservation authority erosion risk category identified map appendix b guideline rural residential development located vicinity existing town land classified soil conservation authority suitable catchment area9xx planning provide residential subdivision located adjacent existing township land low erosion hazard appropriate service provided catchment area xxii inside catchment provision made maximum overall density one house per 40ha freehold land issue eppalock planning scheme area xxv future rural residential development permitted contained entirely within low erosion risk area defined soil conservation authority issue eppalock planning scheme area xxvii advisory committee reviewing subdivision lake eppalock 14 maximum 352 house catchment area permitted house embracing existing house house arising basic entitlement existing tenement new permitted rural rural residential subdivision multi unit development including house equivalent created caravan park motel etc issue eppalock planning scheme area xxviii xxix new house constructed minimum 200 metre full supply level lake eppalock 100 metre bank full level stream drainage line issue eppalock planning scheme area xxx note 200 metre setback also viewed protecting visual aesthetic lake strip development close foreshore guideline indicate need ongoing monitoring catchment provide information base future revision planning scheme land use determination initial 12 month program commence july 1983 first major review initiated eppalock planning scheme three year date approval minister planning 5 3 land use determination environs lake eppalock 1976 committee inquiry known coulthard inquiry held 1976 investigate potential tourism associated lake reception coulthard inquiry committee appointed report water quality requirement desirable development level associated guideline lake eppalock recommendation committee reviewed preceding section 5 2 advisory committee report indicated associated recommendation adopted 1983 government guideline made reference need introduction planning scheme review land use determination land around lake 1985 document eppalock water supply catchment review land use determination environs lake eppalock b ac chappell produced department conservation forest land time preparation rural water commission concerned water quality maintained current level acceptable domestic use chlorination advisory committee reviewing subdivision lake eppalock 15 review embraced area 258 sq krns objective review prevent deterioration quality water lake eppalock encourage us management land lud area would minimise erosion accession sediment stream storage provide land use control complementary contained planning scheme course preparation panel note planning scheme never formally introduced indirectly component scheme embodied local planning scheme case current city greater bendigo planning scheme indicated principal objective revising lud minimise overlap regulation land use respect revised planning scheme result major provision lud relate earthwork soil disturbance near stream lake land high erosion risk aspect viewed complementing provision would embodied planning scheme addition guideline desirable development embodied government approved water quality development issue guideline lake eppalock catchment refer section 4 2 incorporated lud document lud reiterated control water quality development issue guideline lake eppalock catchment document relating limit total number house may built density control one dwelling every 40ha average even though excision lot 4ha could produced considered system development right introduced would limit number house landholder would entitled place property subdivision would permitted unless development right available lot considered development right could transferable reference made set back value building set 1983 water quality report advisory corrunittcc reviewing subdivision lake eppalock 16 land contained subject subdivision fell following category derrinalland category 4 category 4 land used grazing production crop aggravation erosion dryland salinity avoided lakeside boulevard category 1 category 1 land used protection water lake eppalock river creek watercourse effect soil erosion pollution owner undertaking proposal including cultivation advise soil conservation authority category 4 viewed moderate high risk erosion area regard residential development following provision use set could considered category 1 3 4 building residential development j11ust accordance approved lake eppalock planning scheme never approved treatment disposal domestic effluent must accordance relevant requirement health act 1958 environment protection act 1970 relevant shire ordinance advisory coquniltee reviewing subdivision lake eppalock 17 6 detail revised subdivision 6 1 supporting information subdivision following request advisory committee direction hearing provide background information subdivision performance requirement environmentally interface lake eppalock immediate environs proponent retained service whitehorse geoscience pty ltd undertake review previously indicated advisory committee also drew attention ministerial direction relating rural residential subdivision review appraisal proponent consultant produced three supporting document titled proposed subdivision eppalock environmental management report lakeside housing develop ment lake eppalock environmental management report derrinal housing development lake eppalock related subdivision vicinity speedboat road 6 2 general substance supporting document relating proposed subdivision lake eppalock general substance document reviewed following sub section advisory committee report 6 2 1 lakeside boulevard proposal subject site recognised possessing northern boundary approximately 20 metre full water supply level single land element sloped north west south east slope reasonably uniform flat across land varying 1 2 degree 5 metre gravel paved road existed along lakeside boulevard frontage lakeside boulevard frontage approximately 70 metre full water supply level copy two subdivision proposal shown following page area land subdivided area 1 59ha panel note plan subdivision created lot 21 showed area 2 02 ha advice mr cummins licensed surveyor proponent indicates initial area error approximately 4ha 1 acre ajviso cy coffim let revi ewtti ub ulvis ion j l l jj c e ppaiol k existing gravel road lak e ppalock tree une ano approx f l ra vel rorl pr cpdv _ 0 ______ f u r __ optioiy l advisory committee reviewing subdivision lake eppalock 19 land completely modified planted pasture specie currently used water quality mitigation measure due initially created stage lot plan subdivision exists stand alone entity connection rural land shown diagram preceding page two revised subdivision prepared one revised subdivision generally adhered initial permit proposal whereby contained 12 lot area ranging 1210 sq metre 1606 sq metre alternative 14 lot subdivision also produced slightly lower lot size evapotranspiration form waste treatment required western lot subdivision proposal could utilised use 6 2 2 derrinal estate vicinity speedboat road subject site south gaven inlet lake eppalock subject land comprises 10 crown allotment part crown allotment part generated land acquisition occurred establishment lake eppalock land area approximately 223 3ha land used grazing sheep cattle mainly cleared remnant growth regrowth native tree eucalyptus applicant previously subdivided adjoining land 1970 6 lot ranging 8ha llha five lot dwelling erected upon panel note subdivision considered proponent preceding stage stage 1 proposal advisory committee land varies undulating grazing land steeper rocky slope gully several salt affected patch infected spiny rush northern boundary abuts lake eppalock freehold land adjoins boundary separated land government road reserve road reserve constructed generally posse remnant vegetation adjoining land used mainly sheep grazing farmer larger holding immediately abutting land small number hobby farm existing crown allotment earlier 1970 subdivision refer following page indication relationship current area subdivision sought earlier 6 lot stage l subdivision undertaken proponent auvisory c0mmittee rcvil win subtjivisiotis lake eppatock 20 lo ru1 c r u1 e2 e3 e j 1 e 5d laud imcludf c jh gey sed 5d ptton f 54b pp 3 yi 1 eo ru1 lsb 15c lsa iso 6 c8 e elo es9 r 10 33 advisory committee reviewing subdivision lake eppalock 21 various crown allotment make parcel subdivided extend buffer zone lake eppalock distance approximately 2500 metre southern edge full supply level buffer land posse several land form element slope reasonabl uniform across individual land form element vary 1 6 degree single 5 metre earth formed gravel road cross approximate northern boundary site road access public open space reserve indicated earlier subdivision initial permit application 81 lot following complete review land capability number lot transformed 81 41 43 lot accommodate building effluent disposal envelope away steeper land natural drainage line lot produced subdivision posse average area 5 5ha contrast earlier proposal average size 2 8ha smallest area 1ha lot size revised design related land capability panel note aspect elaborated general element environmental management report derrinal housing development reviewed alternative 43 lot subdivision embracing additional land south designed provide directed access killens road abutting gravel road use killens road access point obviated need use government road reserve eastern boundary subject land road reserve formed constructed possessed significant existing remnant vegetation lot bordering lake buffer designed distance proposed housing envelope full supply level lake greater 300 metre accorded required guideline criterion term house location waste treatment facility 43 lot subdivision direct connection killens road perceived desirable option road pattern emergency access provision designed keeping cfa requirement rural residential subdivision copy proposed plan shown following page environmental management aspect plan great emphasis placed upon need reafforestation lot reafforestation would result site coverage approximately 30 40 site land subdivided fully modified apart remnant tress planted pasture specie currently used grazing ajvisory cnmmittce reviewin sl bc jivisions l j k1 epp llock jq 29 28 pp cx f 5 plan derrinal fpo l cc 14 17 18 p oi t favou ud option 22 l ox f 5 13 14 17 16 advisory committee reviewing subdivision lake eppalock 23 6 2 3 relationship respect initial objection report recognised substance objection earlier permit process occurred date contended new perspective applied subdivisional proposal carefully evolved basis sound environmental management principle principle deemed address major concern expressed earlier objection particularly regard impact lake eppalock following aspect reviewed strategic issue vpp based new greater bendigo planning scheme utilised reference medium appraising proposal planning policy recognised existing planning control applied opinion held requirement proposed scheme environmentally aligned provided rigorous demanding backdrop found existing scheme strategic issue relating environmental social economic factor set strategic planning policy framework considered addressed proposal vision planning set new scheme consulted following element considered relevance enriching quality life city resident providing environmentally sustainable growth urban area focus consolidation existing urban designated land maintaining waterway water quality support natural value continued productivity rural industry supporting maintenance enhancement city natural environment recreation tourism asset minimising impact urbanisation settlement pattern productive agricultural value provision infrastructure associated cost maintaining important social recreational tourist value natural urban environment cultural heritage advisory committee reviewing subdivision lake eppalock 24 noted vision made commitment number major project completed 2005 relevant project substantial redress environmental degradation rural area implementation new policy use development lake eppalock surroundings framework plan within scheme referred natural resource plan noted respect lake eppalock following relevance maintenance water quality supply habitat protection urban regional use investigation appropriate recreation tourist use local level planning police directed lake eppalock area introduction environmental management plan would apply land rural living environmental rural zone land water covered salinity management vegetation protection erosion management environmental significance overlay overlay would apply subject site site also specifically addressed clause 22 03 2 eppalock catchment protection zon ing indicated council comment land embraced environmental rural zone applied non urban area specific environmental objective identified zone also applied fringe lake eppalock whereby would provide basis managing water quality concern urban rural user zone prime objective encourage development use land accordance sound management land capability practice take account environmental sensitivity bio diversity locality ensure subdivision promotes effective land management practice infrastructure provision give effect environment al outcome specified schedule zone ad visor committee reviewing subdivision ltke eppalock 25 schedule clearly identifies environmental outcome eppalock fringe protection water supply minimum subdivision size given 40 ha overlnys two overlay relate development site environmental significance overlay objective ensure protection maintenance water quality yield within eppalock water supply catchment area requirement certain application referred department natural resource environment goulburn murray water development plan overlay environmental management objective requires development plan meet specified requirement respect content proponent contended significant aspect emerging appraisal planning scheme policy control significant emphasis placed upon critical role identified lake eppalock water supply importance placed protecting strategic resource objection arising council statutory servicing authority initial permit application recognised reflecting concern ability achieve role inappropriate subdivision occur ministerial direction 6a rural residential development approach taken proponent consultant viewed adequately dealing direction given appraisal made rigorous proposed environmental rural zone control planning ground upon favourable consideration proposal sought recognised protection quality water supply lake eppalock key environmental issue must addressed dealing issue vital give consideration effluent disposal siltation drawing water lake advisory committee reviewing subdivision lake eppalock 26 environmental management plan viewed addressing aspect detail emphasis upon setting place carefully designed regulated effluent disposal regime capable compared occurs farming environment noted specific control existed either short long term manner stocking fertiliser may utilised watershed area result claimed could viewed uncontrolled unregulated source pollution subdivision proposal could viewed fully controlled situation potential pollution source known quantified planned regulated measure incorporating appropriate safety factor taken avoid pollution possibility increased siltation arising storm water management derrinal development viewed adequately controlled environmental management process also due extensive deposit sand gravel lake subject land lakeside boulevard area acknowledged greater care would needed housing construction asserted environmental management plan dealt aspect tree coverage requirement would assist issue water issue covered extensively environmental management plan claimed water requirement would adequately dealt proposed water management control rainwater collection roof shed occasional supplementation time low rainfall presence dam derrinal development would aid overall water management estate proposed tree planting control viewed positive technique overcome concern possibility salinity impact particularly severe salinity problem already existed derrinal site claimed proposed tree planting would lead reduction water table level asserted prospective user land would economic profile would ensure positive approach planting need eradicate localised area impacted salt anticipated rubbish generated proposed development would need handled regular garbage collection service presence service would overcome objection raised aspect funding garbage service would need achieved either garbage charge municipal rate determined council lakeside boulevard area currently enjoy garbage service advisol committee reviewing subdivision lake eppalock 27 term objection relating land capability regard earlier derrinal proposal claimed significant emphasis placed aspect detailed ground inspection performed ensure lot boundary design recognised land capability characteristic immediate vicinity lot given attention detail site capable accommodating building effluent disposal system envelope area gentle land away drainage gully economic mlltters appraisal made range economic element claimed proposal would result employment capacity generated proposed development 15 time land remaining agriculture employment potential measure 3 person full time fifty year derived respect local impact appraisal made assumption full time family residency would achieved lot premise annual household expenditure 40 000 deduced significant benefit would accrued heathcote area discussion occurred aspect strong concern expressed local resident full time residency lot would achieved panel note refer section 9 2 9 3 dealing general submission subdivision would generate 17 000 rate revenue council per annum following act subdivision 52 000 per annum fully developed supply demand whilst noted municipal strategic statement suggested action including discouraging rezonings whilst substantial supply zoned land available claimed would substantial demand land lake frontage view based upon lifestyle choice demand would result quick sale lot price premium would bear statement local agent tabled support claim contended claim relating oversupply rural residential land validity related subject site advisory committee reviewing subdivision lake eppalock 28 provision land rural residential development given interface lake environs viewed alternative choice lifestyle resident ability inter relate waterscape net community benefit sustainable development background preceding comment asserted proposed subdivision would make valuable contribution net community sustainable development would positively directed towards matter salinity land stabilisation would provide significant boost heathcote community appraising proposed development strategic objective view held conformed broad objective policy 6 2 4 environmental management report derrinal housing development lake eppalock report made awareness following time construction dam create lake eppalock number report prepared pointed towards need soil conservation work underway catchment area prior commencement eppalock dam eppalock catchment project set place 1960 aim controlling soil erosion stream proposed eppalock reservoir aid program notice determination land use portion eppalock water supply catchment published goverrunent gazette 20 july 1960 land use determination principally involving immediate environs lake made 1966 assigned land six category according predetermined land use capability assessment view held mapping broad brush significantly greater detail available land capability assessment undertaken recently former shire marong strathfieldsa yeo 1983 interdepartmental committee set develop guideline desirable development provision lake eppalock environs catchment consistent mnintenance good water qunlity lake advisory committee reviewing subjivision lake eppalock 29 life committee eppalock planning scheme proposed adopted government day 1989 indicated recognised chapter 9 local section greater bendigo planning scheme revised eppalock component embodied vpp format planning scheme land conservation council recommendation north central area 1981 included prescription lake eppalock environs section relating water production review land use determination environs lake eppalock carried 1985 objective preventing deterioration quality water lake eppalock encouraging use management land land use determination minimise erosion accession sediment stream storage providing land use control complementary contained eppalock planning scheme advent algal bloom problem late 1980 early 1990 resulted production large number document relating water generally proposed land subdivision particular following document cited water quality development issue guideline lake eppalock catchment 1983 interdepartmental committee design siting guideline buslifire protection rural house 1989 ministry planning environment county fire authority water quality lake eppalock related planning eppalock catchment 1989 rwc planning condition guideline rural subdivision 1991 cfa water environment dee draft nutrient management strategy victorian inland water 1995 dcnr nutrient management strategy victorian inland water 1995 dcnr guide sampling analysis water waste water 1995 epa preliminary nlltrient guideline victorian inland water 1995 epa managing sewerage discharge inland water 1995 epa code practice septic tank 1996 epa study land campaspe river catchment lorimer schoknecht n r dcnr 1987 advisory committee revit wing subdivision lake eppalock 30 conjunction appreciation documentation use made 1993 technical report 7 land capnbility study rural city mnrong e j bryant 5 lorimer centre land protection research published dnre report provided basis undertaking land capability subject site aid design also providing referral information referral authority deliberate upon suitability subject land purpose subdivision environment management report dealt following matter topography soil type vegetation soil sub soil duplex character derived underlying ordovician slate sandstone claimed range low hill separated land lake great emphasis placed upon undulating land comprised tertiary sand gravel clay unique component geological element area tertiary deposit two five metre thick least 200 metre wide 2 km long presence geological attribute one major claim land becoming available rural residential development relieved overall 40 ha control found planning documentation water quality development issue guideline lake eppalock catchment hill viewed formidable barrier nutrient e coli sediment transport lake viewed efficient sponge soak filtration system effluent overflow may occur result breakdown septic system slope site gentle general ranged 1 6 degree slope 20 degree sheet erosion existed portion land along drainage line salting evident place general overview existing remnant vegetation provided principle minimising vegetation disturbance would strictly adhered prevent sediment transport lake site generally possessed undulating grassland advisory committee reviewing subdivision lake eppalock 31 indicated earlier remark extensive buffer would provided along lake buffer ensure conformance planning guideline set provision land capability use previous reference made system land mapping performed centre land protection research department natural resource environment shire marong use site appraisal subject land use previousl applied within eppalock area three land form component utilised steeper slope crest rock crop gentle slope low crest generally free rock outcrop drainage depression within land component score allocated relevant parameter viewed significance development component relevant development component subdivision consideration building effluent disposal secondary road detailed result provided site assessment capability score gained regard component conjunction appraisal percolation appraisal undertaken subject land claimed result showed land capable absorption effluent proposed housing development provided land form element 2 gentle slope low crest occurred 70 233 ha embraced subject land used purpose feature recognised subdivision design proponent also confident development issue could addressed engineering design locational solution stressed vital take care minimise erosion sediment transport road construction housing construction advisory committee reviewing subdivision lake eppalock 32 suggested objective could achieved undertaking consultation referral authority matter scheduling work time year high rainfall event experienced avoiding work saturated soil compaction likely limiting area work conserve vegetation cover installing area work conserve vegetation cover installing bunding trap sediment shed site work keeping construction plant vehicle well defined haul road rehabilitation disturbed area quickly possible water resource protection considered water quality vicinity derrinal subdivision could maintained following removal grazing stock land planting local indigenous specie local stock lower water table long term locating septic system beyond 300 metre full supply level lake unique geological characteristic tertiary buffer management algal bloom proposed preventative measure claimed lead minimising current high level nutrient salinity removal stock would overcome existing situation whereby faecal contamination arises unrestricted grazing stock around margin lake eppalock claimed unrestricted recreational use lake foreshore environment recognised capacity septic system issue related water reticulation supply condition whether proposed dwelling would permanently occupied serve recreational housing dual flush toilet strategic location adsorption trench would aid maintaining area green lawn fire prevention purpose recognised diversion lake would either limited permitted dwelling relying upon tank water would need reserve 10 000 litre specificall fire suppression purpose advisory committee reviewing subdivision lake eppillock 33 claimed basis soomm 600mm rainfall roof area 300 sq metre could yield 180 000 litre rainwater amount water considered sufficient meet need permanent household provided swimming pool spa dish washer installed suggested course advisory committee hearing provision 400 sq metre roof area would desirable meet requirement induding fire suppression ensure inadequacy water supply occur control nutrient level would ensure development generated subdivision would lead increase potential algal bloom salin potential salinity discharge occur drainage line within glen cooee land system high salinity discharge localised basis evident mid higher slope glen cooee land system fire risk fire risk mapping report prepared subject land moderate fire rating hazard derived future housing would required vegetation clearance 20 30 metre flammable object wood heap hydrocarbon fuel gas cylinder away building house work electrical power telephone would connected proposed development access would killens road building envelope would formed ensure optimum opportunity existed utilise northerly aspect maximum energy efficiency claimed regard impact adjoining land visual amenity impact outside site would low impact adjoining property would minimal location building envelope away boundary subject land would assist regard advisory committee reviewing subdivision lake eppillock 34 could considered six lot stage 1 subdivision derrinal subdivis ion undertaken adjoining land approximately 20 year ago revealed known adverse impact water quality matter water provision requirement 400 sq metre roof area outlined earlier would set scene building requirement addition 24 existing dam found subject land could incorporated lot aid water storage external road ttllfjic movement existing road servicing subject land viewed adequate deal generated traffic property could accessed mcivor highway directly travelling along derrinal road moving short distance along killens road alternatively could accessed mia mia kyneton heathcote road along derrinal road would require short movement along killens road 6 2 5 environmental management report lakeside boulevard housing development lake eppalock report made background similar outlined derrinal subdivision environment management report dealt following matter topography soil type vegetation land fell within knowsley system soil sub soil duplex character component described earlier section advisory committee report water quality impact lake percolation testing performed latrobe university soil concrete testing laboratory auspex city greater bendigo result indicated percolation rate 9mm 29mm per hour advisory committee iewing subdivisiuns lake eppalock 35 considered background requirement found code practice septic tank site domestic wastewater management publication subject land capable absorption f effluent proposed 12 lot subdivision using septic system lot statement made provision satisfactor cover vegetation maintained subject site possessed gentle slope reference made existing 20 lot subdivision individual lot serviced septic tank claimed examination site reveal form seepage occurring even current extremely low level experienced lake trench 1 5 metre deep dug land verify water table lay depth drainage line salting existed subject land dwelling effluent line set back far possible full supply level waste effluent treated site utilising conventional absorption eva po transpiration septic tank technology proponent recognised diversion lake eppalock would determined managing authority however view held whitehorse geoscience pty ltd consultant diversion lake eppalock limited permitted dwelling rely entirely upon tank water collected site 10 000 litre reserved specifically fire suppression purpose proponent claimed waste disposal system would significantly superior number community facility found close proximity full water supply level number place perimeter lake addition view expressed current land management practice permitting unrestricted grazing stock around margin lake faecal contamin ation arising activity result high level nutrient virtually immediately finding way lake considered double standard applied seeking deny proponent ability develop land well control disposal system yet practice allowed continue unabated manner advisory committee reviewi ng subdivision lake eppalock 36 provide support proponent claim relating control nutrient proponent retained consultant possessed highly specialised knowledge area comment consultant water quality reviewed consultant appear advisory committ ee statement provided final session advisory committee hearing appraisal possible nutrient impact van de gmaii associate pty ltd advisory committee hearing document tabled van de graaff associate pty ltd requested analyse potential environmental risk lake eppalock relation domestic effluent nutrient seeping lake van de graaff associate extensive background soil wastewater disposal contaminated site environmental investigation appraisal undertaken percolation test value 20mm hr utilised appraising seepage characteristic addition presumed land would posse single soil condition referred 1996 code practice septic tank comment made seven test approach fact every effluent trench expose far soil trench bottom wall exposed seven test hole consequentially information permeabilit derived seven test hole never definitive suggested appendix b code practice basis 20mm hr rate assuming three bedroom house estimated three parallel trench 20m would require approximately 120 sq metre space lot without mandatory setback required code comment offered house lot connected town water supply connection would increase volume effluent result size lot would small contain waste water risk nutrient reaching lake directly inter related possibility effluent escaping house lot overland run advisory committee reviewing subdivision lake eppalock 37 seepage able restrained sub surface movement consultant held view excellent chance renovated reached lake major reason ensuring water use house minimised consultant derived slope full supply level order 3 utilising 20mm hr percolation rate arrived soil permeability approximately 8cml day basis contended 10 metre travel 4000 day would required commentary offered manner phosphate undergoes various reaction soil component form insoluble compound acid soil significant clay fraction would result action high extent view expressed every prospect good planning maintenance site septic system work satisfactorily effluent ran surface nutrient input subdivision lake eppalock would negligible commentary upon de graafl remark advisory committee sought commentary referral body upon mr de graaff remark upon septic usage vicinity lakeside boulevard following remark provided advisory committee goulburn murray water possibility town water made available area accorded recognition possibility addition expected resident lot would seek access water lake extract draft paper septic system contamination victorian groundwaters parson sinclair knight mertz provided paper provides overview issue associated groundwater pollution septic tank goulburn murray water contended cannot presumed soil purify nitrogen present septic tank effluent paper clearly reveals poor practice exist regard maintenance septic system accepted 15 year life span system exceeded advisory committee reviewing subdivision lake eppaloc k 38 consultation mr b trewhella manager natural resource golllburn murray water expert groundwaters indicated movement water sub soil area lakeside drive could closer 9mm day rather 2 4 mm day actual slope would steeper 3 would lead faster movement rate regardless variance rate installation septic system close vicinity full supply level would mean pollution train towards lake coliban water concern still remained possibility resident gammg additional storage water use lake water would could lead significant waste generated system overloaded resultant increase pol ution department natural resource environment doubt expressed assumption based percolation test relatively skimpy topographical plan site assessment undertaken department considered impermeable glacial sediment acted barrier water movement could result movement nutrient across soil surface effluent line lake lot size setback full water supply level dealing development issue approach outlined derrinal subdivision would adopted recognised recommended guideline proposed greater bendigo planning scheme land would zoned environmental rural set 40ha minimum minimum keeping control found 1985 land use determination lot proposed subdivision lay well lot size criterion contended could accommodated due unique feature land advisory comr 1 ittee reviewing subdivision lake eppalock 39 salinity claimed possible impact salinity would low visible evidence existed significant tree planting would required owner lot aid addressing possibility salinity problem fire risk similar condition would required regard fire control set derrinal environmental management plan regard 20 metre clearance around dwelling stated could achieved giving recognition clearing adjoining lot whereby abutting lot cleared area 10 metre combine result 20 metre cleared area building house work amenity issue traffic power telephone would provided currently power available existing residence existing gravel road would provide access road construction would necessary generated traffic would satisfactorily handled existing road due ample road capacity strategic tree planting program would directed towards minimising improving visual amenity impact care would taken avoid adverse impact adjoining land advisory committee reviewing subdivisi ons lake eppalock 40 7 city greater bendigo ground refusal 7 1 relationship lake eppalock city greater bendigo although lake eppalock initially established irrigation purpose city greater bendigo recognised also utilised provide domestic water bendigo heathcote township lake area also played significant role tourist industry within city caravan park club site surround lake amalgamation municipality saw city greater bendigo current form emerging two phase amalgamation process ultimate amalgamation resulted lake eppalock immediate surround placed control one council lieu former situation three council namely mcivor strathfieldsaye metcalfe encompassed various section area current greater bendigo planning scheme prepared following amalgamation drew together component former scheme related lake eppalock area need introduce new greater bendigo planning scheme recognise principle embodied victorian planning provision led council view lake eppalock area strategic sense aspect allied growing appreciation slight variation control lake eppalock area consolidation current scheme element three former shire control generated awareness within council need undertake broader strategic approach lake area need initiate strategic perspective also heightened council deliberation upon subdivision application advisory committee also effort dnre goulburn murray water referral body preceding development application endeavouring set place consistency dealing development application lake area result city greater bendigo conjunction introduction new planning scheme initiated five phase project aim providing strategic development framework sustainable use lake eppalock area aim encompasses economic development environmental management natural recreational tourist resource lake eppalock area advisory committee reviewing subdivision lake eppalock 41 endeavouring achieve aim council set two primary objective obtain significant regional economic development better co ordination allocation utilisation land catchment recreational use shoreline water impoundment ensure lake prime purpose supplying high quality water protected integrated environmental management utilising best practice procedure process technology result approach city retained service environmental management service pty ltd formulate five phase project achieve objective paper proposed five phase process relationship subdivision advisory committee produced mr p waterman environmental management service pty ltd summary paper provided section 7 3 advisory committee report 7 2 specific council concern regard proposed subdivision city initially confronted two permit application subdivide derrinal lakeside boulevard site application accompanied supporting information addition rezoning would necessary enable subdivision realistically achievable detail provided planning control detailed section 3 advisory committee report council received 12 objection adjoining owner permit application lakeside boulevard area instance derrinal subdivision four objection adjoining owner received addition following referral power corp telstra department natural resource environment coliban water goulburn murray water last three authority objected proposal powercorp telstra objection subject imposition condition section 8 referral body concern section 9 individual concern advisory committee report review objection proposal council attitude proposal significantly change following submission additional detail reviewed section 6 advisory committe e report advisory cummittee reviewing subdivision lake eppalock 42 regard proposal council expressed following concern proposal contrary provision greater bendigo planning scheme chapter 9 therefore prohibited regard lakeside boulevard proposal drafting error appears exist refer earlier remark section 4 1 aspect proponent endeavour modify limit subdivision portion residential land error overlaid lot 21 indicated m wilkinson planning officer council proponent insisted application decided submitted form background allied objection referral body dnre coliban water goulburn murray water referral authority section 8 1 planning scheme council considered course available refuse permit proposed subdivision prohibited provision seriously entertained general review greater bendigo planning scheme council appreciated proposed control yet tested considered council proposed control reflected commitment responsible development area providing effective land use planning solution water catchment protection attention drawn 40ha minimum lot size new scheme control council indicated keeping vpp principle need specifically outline type information would required provided order assist responsible authority consideration planning application view held even expanded information deficient number area could achieve total compliance objective found proposed planning control associated overlay council also drew upon intention undertake strategic assessment outlined preceding section advisory committee report indicated may appropriate subdivision later reviewed strategic plan may emerge following implementation process detailed environmental management service pty ltd process adopted principle council advisory corrunittee reviewin g subdivision lake eppaic k 43 7 3 establishment strategic development framework sustainable use lake eppalock area strategic document prepared mr p waterman environmental management service pty ltd council represented substantial appraisal associated issue advisory committee considers necessary provide brief review general substance report report three prime purpose scope key issue confronted government non governmental stakeholder involved land use planning environmental management lake eppalock area provide draft strategic development framework tool promoting collaboration stakeholder indicate way forward greater bendigo city council report consisted four major component briefly appraised following sub section 7 3 1 approach project recognised future development lake area would need strategically guided planning policy recognised need balance potential self sustaining land us aspiration land owner wider community permitted development way contribute deterioration quality water lake tributary stream council held opinion endeavour directed towards optimisation land water asset would achieved possible degradation could possibly occur ad hoc development could result fragmented land holding us neither economically environmentally sustainable considered ad hoc fragmentation could also lead significant demand upon infrastructure service cost service dispersed rural population could outweigh revenue may generated expanded rate base preparing project belief held environmental condition described generalised manner deemed necessary obtain systematic description environmental condition catchment scale could utilised detailed site planning impact assessment purpose site environmental management advisory committee reviewing subdivision lake eppalock 44 comment made preparing background material waterman document following process undertaken review available information source discussion department personnel victorian state government consultation officer city greater bendigo discussion proponent subdivision proposal advisory committee reconnaissance lake eppalock surround 7 3 2 scoping issue view held eleven key issue needed resolved formulation strategic approach sustainable development follows pressure subdivide rural property cost infrastructure service rural subdivision recreational facility loss productive agricultural land deterioration water quality uncoordinated planning environmental management responsibility condition tourist recreational facility appropriate use planning policy statutory instrument development provision lack environmental management system uncoordinated information management proposed subdivision advisory committee viewed particularly innovative considered served highlight need overall gathering information enable review statutory planning land use policy development vital determine whether level density prescribed development 1980 report guideline either low longer appropriate light new technology waste control management background abundance rural lot greater city bendigo take lot currently quite slow viability derrinal proposal particular questioned advisory committee reviewing subdivision lake eppalock 45 dot point appraised detail issue raised respect aspect major emphasis appraisal place emphasis upon need establish detailed information decision making significant advancement land information gathering taken place recent year advanced technological method gathering storing manipulation date allied state set place digital cadastral base information laid great authority respect property boundary conjunction gathering base information necessary determine whether one body would take responsibility information management continuing maintenance updating information base 7 3 3 draft strategic development framework considered strategy would consist following four initial element optimisation land use potential area action required optimise land use potential map pattern freehold leasehold tenure review form period lease evaluate effectiveness leasehold system map describe land use pattern identify document opportunity constraint developing non urban lifestyle lake environment identify site would suited intensive development examine whether need land title consolidation title swap system ensure development proposal environmentally technically economically sound feasible term government acceptance environmentally managed action viewed aiding giving effect strategy map document existing environmental condition collate evaluate available water quality lake tributary stream document ass existing potential environmental risk develop generic framework development proposal based emps advisory commitlee reviewin g subdivision lake eppalock 46 establish environmental performance base criterion establish framework development condition catalogue document best practice environmental management technology foster sustainable rural land development agriculture action needed support fostering sustainable rural land development review capability productivity land resource ass economic viability rural land us ass infrastructure asset liability determine cost provision infrastructure service catalogue document new crop product could introduced area identify area tria ling sustainable agricultural practice implement integrated environmental management 7 3 4 key action support management establish stakeholder working group plan system stressed landowner community stakeholder must input agree upon scope priority issue addressed system establish appropriate implementation procedure establish appropriate monitoring auditing procedure develop environmental information system support em identify key honey pot panel note identifier relates site posse unique characteristic location could generate significant development potential result would capable supporting high quality project could utilised pilot study give appreciation subsequent developer environmental social performance standard would need met initiate pilot project part management program way forward conjunction project embracing aspect imperative outset monitoring auditing process place effectively maintain ed initial strategic approach place advisory committee reviewin g subdivision lake eppalock 47 considered immediate step confronting council achieve proposed strategy follows convene workshop key stakeholder purpose agreeing integrated approach planning management lake eppalock area use stakeholder working group initiate information management action required support project work north central catchment authority key stakeholder obtain financial resource necessary undertake preparation framework formulating endorsing policy encapsulate innovative land use development environmental management resource conservation objective initiate awareness program keep resident city greater bendigo non governmental user environmental resource lake eppalock area informed initiative undertaken stakeholder community behalf identify preliminary set site pilot new em procedure planning assessing managing higher intensity land us pilot project carried part specific management program need encompass current best practice environmental management technology procedure advisory conunittee reviewing subdivision lake eppulock 48 8 referral body concern 8 1 referral body interest proposed subdivision following referral body initially objected planning permit undertake subdivision lakeside boulevard derrinal addition made detailed presentation advisory committee hearing body goulburn murray water coliban water department natural resource environment 8 2 goulburn murray water submission major ground opposition proposal subdivide follows 81 43 lot subdivision inadequate management effluent disposal soil disturbance detailed stormwater management impact management foreshore area water supply difficulty access concern inconsistency planning scheme 12 lot subdivision inadequate management effluent disposal compliance septic tank code practice code would satisfied code indicated meet performance criterion objective may necessary provide setback distance 300 metre septic tank domestic water supply reservoir soil disturbance detailed stormwater management impact management foreshore ar water supply difficulty access concern inconsistency planning scheme subdivision concept appropriate adjacent water storage urban water drawn fully treated advisory committee reviewing subdivision lake eppalock 49 comment basis upon approval would given 81 43 lot subdivision 12 lot subdivision subdivision changed create 40ha lot full containment effluent treatment work would likely need managed coliban water effluent treatment would need accord water supply would permitted via latest standard intent group scheme installed subdivider campaspe water quality strategy water entitlement would purchased diversion permit obtained group water supply scheme stonnwater urban fonn provided subdivider entitlement development would need collected would need purchased diversion directed via debris trap settlement permit obtained sump entering lake managed municipality accompanying agreement would need drawn organisation subdivider relevant authority considered impossible make sensible appraisal initial application without detailed information even receipt detailed information report provided proponent following advisory committee direction hearing goulburn murray water still retained opposition proposal opinion expressed proposal comply ministerial guideline rural residential development stressed current usage water lake eppalock predominantly irrigation 15 20 used urban supply future growth bendigo urban expected serviced water lake eppalock purchase entitlement irrigators coliban water closing goulburn murray water made reference fact victorian government recently approved cost sharing guideline nutrient management guiding principle significance matter consideration duty care natural resource user manager duty care ensure damage natural resource base user would responsible making good damage incurred result action advisory committee reviewing subdivision lake eppalock 50 goulburn murray water process developing guideline development land owned authority adjacent water storage principle minimum sm vertical buffer lake development maintenance stability foreshore area risk management system including environmental management system minimum disturbance principle applied site rehabilitation work progress runoff management effluent management landscape management assessment impact area lake foreshore possibility increased urban water demand recognised background exposed contamination lake eppalock currently experienced namely population catchment associated unsewered town septic tank stormwater runoff development around edge lake water activity exposure held strong contrast manner dam catchment storage area large urban centre melbourne ballarat geelong protected reference made 1976 coulthard report 1983 water quality development issue guideline lake eppalock catchment reliance goulburn murray water predecessor upon guideline orderly management development application near lake catchment area goulburn murray water acknowledged need review guideline result changed catchment activity impact lake strongly stressed concern nutrient potential blue green algae become acute recent time coliban water department natural resource environment goulburn murray water recently sought funding review lake eppalock catchment detailed appraisal water quality lake eppalock provided water ecoscience refer section 8 2 1 included water ecoscience report assessment likely impact algal bloom lake eppalock advisory committee reviewing subuivisions j lake eppalock 51 attention drawn experience lake mokoan regular algal bloom economic loss 2 5 million estimated presence bloom considered economic impact blue green algal bloom lake eppalock could order 12 million development draft campaspe water quality strategy commented upon strategy directed towards improving water quality catchment reduce risk occurrence blue green algal bloom significant emphasis placed upon reducing load nutrient nitrogen phosphorous reaching water body strategy embodied statement indicated eleven blue green algal bloom recorded campaspe catchment phosphorus load exported waterway increase next 30 year nothing specific aspect strategy relevant proposed subdivision reduction nutrient load septic tank stormwater management plan must provided located close waterway goulburn murray water process initiating review recreational development land leasehold objective defining area suitable recreational development opportunity existed following termination caravan park club lease appropriate modification water activity reafforestation marginal strip owned goulburn murray water use strip catch drain 8 2 1 water ecoscience report document highly detailed appraisal impact risk proposed development upon water lake eppalock document prepared prior receipt detailed report consultant held major objective report still relevant report objective provide current assessment environmental status lake eppalock reviewing recent water quality blue green algal data available collected 1992 1996 advisory conunittee reviewing subdivision lake eppalock 52 ass risk adverse impact water quality beneficial us lake eppalock reviewing particularly potential susceptibility blue green algal bloom proposed development appraisal nutrient physio chemical parameter metal e coli salmonella revealed existing water quality moderate poor nutrient physio chemical parameter generally good metal excellent microbiological characteristic blue green algae generally present low abundance lake eppalock two low level bloom potentially toxic blue green algae reported 1993 1996 factor influencing possibility blue green algae include presence phosphorus oxidised nitrogen turbidity reference made nutrient limitation algal growth algae required nutrient carbon nitrogen phosphorus ratio 106 16 1 atom weight 42 7 1 ratio indicated algal growth potentially phosphorus limited nitrogen phosphorus ratio greater 7 currently ratio order 45 1 derrinal pool 61 1 outlet appraisal lake eppalock water data revealed algal growth limited availability phosphorus increase phosphorus loading would potential trigger algal bloom also noted oxidised nitrogen could also important blue green algal bloom development emerged occurrence blue green algae corresponded period low turbidity however also recorded current median turbidity within lake within anzecc guideline stratification deemed important factor blue green algal development appraisal undertaken proposed subdivision determine possible impact water lake major impact perceived arise effluent management long term water quality us stormwater management long term water quality impact construction activity short long term water quality impact great emphasis placed upon fact lakeside boulevard development would result development within 50 metre full supply level result would accord 100 metre 300 metre limit expressed septic tank code advisory committee reviewing subdivision lake eppalock 53 reference made biological sand filter aerobic treatment effluent low permeability existed system reduce nutrient nitrogen phosphorus critical aspect must limited maximum discharged lake eppalock specific study undertaken revised derrinal proposal view expressed considered excessive level development substantive information provided appraisal undertaken run range development review contended heavy metal inorganic toxin significantly higher urban stormwater runoff increased bacteriological level stormwater also occurred area adjacent caravan park recreational area claimed commonly available stormwater treatment significantly reduce nutrient concentration stormwater natural nutrient reduction relied upon filtration via natural vegetation infiltration soil permeable surface close proximity section proposed development particularly lakeside boulevard area would result deterioration water lake eppalock viewed contravening state general policy reducing nutrient input surface water sediment management would need undertaken implementation best practice management guideline environmental guideline major construction site epa 1996 construction technique sediment pollution control epa 1991 8 3 coliban water comment coliban retail supplier purchased lake eppalock water supply water bendigo surrounding town 30 40 domestic supply water eppalock currently untreated meet world health organisation quality standard addition water downstream lake eppalock used supply domestic water township ofaxedale goornong rochester also periodically supplied rochester strong support given goulburn murray submission doubt expressed use septic tank close proximity lake manner proponent interpreted code practice septic tank site domestic wastewater management attention drawn fact table 1 3 indicates conventional septic tank technology generally suitable declared special water supply area specified catchment land protection act 1994 subject land area advisory commiuee reviewing subdivision lake eppalock 54 support given concept cif review existing development control around lake eppalock along strategic plan future use development lake eppalock surround coliban water held strong view review receive immediate priority proposed development proposal evaluated guideline may emerge review 8 4 department natural resource environment department objection related impact catchment water department successor agency soil conservation authority land use determination came effect 1985 still current binding document catchment land protection act 1994 proclaimed catchment including lake eppalock deemed special water supply catchment area act land use determination carried forward special area plan state planning policy framework section 15 01 planning authority required regard regional catchment strategy associated management plan special plan approved catchment land protection act 1994 sustainable agriculture land management program department encourages adoption sustainable agriculture land management practice catchment water resource program department work key catchment group guarantee long term integrated protection victoria water resource key priority include improving river health managing salinity waterway floodplain surface groundwater commented despite stated intention state government 1983 eppalock catchment guideline review planning control occurred preparation vpp based greater bendigo planning scheme currently consideration department experienced inconsistency planning control state government policy expressed guideline difficulty encountered stressed aat number occasion given precedence guideline document inconsistency planning scheme department placed great emphasis upon guideline requirement environs area land maintained either forestry low intensity grazing land maximum overall density one house per 40ha freehold land observed advisory committee reviewing subdivision lake eppalock 55 possibility review eppalock planning control viewed providing opportunity participation landowner government agency broad community development strategic planning framework lake catchment land contained lakeside boulevard subdivision designated category 1 land use determination document designation indicated site used protection water lake eppalock river creek watercourse effect soil erosion pollution designation requires development required minimise soil disturbance determine soil conservation work specify location design work case derrinal subdivision majority land category 4 land used grazing production crop glen cooee land system site located considered posse area shallow soil low water holding capacity fractured bed rock would contribute significant groundwater recharge land already showed evidence salting saline seeping occurring department commented upon land capability data provided proponent consultant contended averaging rating common practice highest rating taken value related major limiting feature conventional technique accepted land capability ranged class 4 poor considerable difficulty high erosion hazard class 5 poor difficulty cannot overcome current technology basis appraisal land appeared low capability rural residential development lakeside boulevard site glacial sediment could cause lateral flow spring development could occur cementing sediment alternatively cementing present effluent disposal trench could cause buildup contaminated water poorly sorted highly permeable area groundwater depth concern belief held groundwater depth situation would vary minimal maximum 2 7 metre regard paper van de graaff ability site effectively handle use septic tank claimed paper prepared basis barrier vertical water movement advisory committee reviewing subdivision lake eppalock 56 effective water barrier exist water table linked lake level permeable glacial sediment movement effluent across soil surface could result derrinal land lie wild duck creek sub catchment one six high priority sub catchment salinity control work co dina ted department giving effect campaspe salinity management plan 1992 plan recognises unsewered property contribute effluent disposal field failing system pollute watercourse raising nutrient level increasing algal bloom requirement water supply catchment aquifer intake area interim planning guide 1987 outlined regard domestic surface water supply catchment follows urban residential development located township low hazard area adequate service provision small lot development directed area outside water supply catchment practicable area away shore bank potential low environmental contamination development generally non urban housing density total population maintained low level particularly small sensitive catchment sensitive area large catchment house building work effluent absorption line generally prohibited within 300 metre full supply level domestic water reservoir within 100 metre bank stream including ephemeral stream urban settlement planned developed reticulated sewerage system effective drainage system economically provided reference also made number aspect raised submission department supported proposal review catchment incorporating following principle recognition opportunity provided strategic ongoing cyclical review planning scheme vpp context adoption strategic planning approach regional integrated whole catchment advisory committee reviewing subdivision lake eppalock 57 consideration performance based planning approach based agreed outcome incorporation consultative process allowing informed community involvement optimisation economic social environmental benefit site specific approach review land use rezoning land lake environs proceed strongly opposed department contended vital ensure following action initiated onus prove sustainability development lay proponent approval body must satisfied net result approving similar development similar land catchment would also sustainable site assessment include detailed water balance recognised current knowledge evapotranspiration rate various vegetation type relevant site condition ad hoc decision allow site specific subdivision seen pre empting strategic review catchment planning framework set precedent development similar location around lake 1 advisory committee reviewing subdivision lake eppalock 58 9 resident submission 9 1 general remark resident submission divided two category first category relates 12 lot subdivision lakeside boulevard strong opposition proposed subdivision existed amongst resident landowner existing 20 residential lot lakeside boulevard second category relate derrinal subdivision proposal generated submission two nearby resident 9 2 lakeside boulevard concern view referral body council supported general issue follows precedent would created form development total disregard proper planning health safety decision made release lake eppalock recreation development plan alternative concept introducing open settling pond effluent opposed basis would unsightly health safety issue poor planning non provision fire access road suitable emergency vehicle believed high fire risk area lack provision drainage easement cope road surface water run based upon site water catchment figure derived 300 sq metre roof catchment provided proponent consultant resident basis experience failed understand without supplementing lake water residence could fully self sufficient household toilet garden revegetation fire suppression permanent resident lakeside boulevard found necessary use lake water toilet garden revegetation fire suppression resident experience winter time lakeside boulevard quite different come water absorption soil saturation difficulty experienced septic tank winter time 1 advisory committee reviewing subdivision lake eppalock 59 contention proponent consultant possibly achieving total full time residency either lakeside boulevard area derrinal area feasible currently 30 year lakeside boulevard possessed 3 permanent resident 20 housing lot projected economic assessment would attained ratio obtained new development basis existing resident characteristic estimated household expenditure 40 000 per year contested property value could impacted proposed development could lead increased congestion caused ski boat fishing vessel jet ski yacht swimmer around derrinal pool create safety problem 9 3 derrinal concern concern emerging two submitter namely g marshall c riddall fo11ows subdivision could constitute serious risk farm marshall adjoined subject land doubt expressed projected amount water would sufficient need proposed resident earlier stage l 1970 six lot subdivision one permanent residence existed five lot developed one lot yet developed owner failed carry vegetation clearance building seldom used build leaf branch debris roof considerable concern fire salinity problem gully eastern side subdivision ever increasing gully discharged water directly lake additional seepage generated subdivision would add flow spiny rush spreading rapidly gully spreading back hill tree band purported proponent prevent salinity problem avoid encroachment spiny rush marshall property spraying necessary eight year period pattersons curse rabbit spreading stage l lot owner either unaware unconcerned advisory committee reviewing subdivision lake eppalock 60 two dog stage l resident destroyed caught maiming sheep marshall property rural character area would changed significant change population density increase motor traffic along killens road sheedys lane proposed lot size le council minimum 16 ha considerably le 40ha requirement found guideline recognised planning provision review development considered review undertaken guarantee existed future resident would undertake planting management requirement proposed proponent salinity developed considerably upon subject land even though owner complete control land proper approach deep rooted pasture specie tree planting strategy solution degradation subdivision uncontrollable factor projected estimate increased employment potential contested proposal viewed blatant profit making exercise would generate request subdivision potential would adversely impact lake advisory committee also received number late submission forwarded minister regard derrinal subdivision submission generally dealt concern raised earlier submission advisory committee submission also expressed concern lack awareness proposal subdivide inability participate advisory committee process advisory committee mvicwing subdivision lake eppalock 61 10 review tile code practice septic tank site domestic wastewater management review directed towards highlighting aspect code viewed relevant regard proposed subdivision following extract aspect interest underlined italic used highlight major aspect interest 1 1 treatment disposal option best practice sewerage system reticulated system trea dispose sewage site technical financial feasibility providing reticulated sewerage time subdivision land considered new allotment sooo sq metre site discharge wastewater individual system permitted contrary inconsistent state environment protection policy special water supply catchment area declared catchment land protection act 1994 reference made fact aerobic treatment system produce better quality effluent individual household thgy remove nutrient phosphorus nitrqgen advisory committee note removal phosphorus nitrogen vital avoid creation algal bloom table 1 1 guideline effluent disposal option physical factor retained site septic tank ground absorption generally suitable subject criterion met follows lot greater 4ha may suitable lot 0 1 4ha land slope le 20 may suitable depth winter spring water table greater 1 5 soil percolation rate 15 150 mm h annual rainfall le 900mm advisory corrunittee reviewing subdivision lake eppalock 62 table 1 2 guideline effluent disposal option social factor retained site septic tank ground absorption generally suitable subject criterion met population le 1000 density le 2 5 dw iha density 2 5 10 dw iha may suitable seasonal variation holiday usage low high mall suitable water supply reticulated water tank table 1 3 guideline effluent disposal option environmental factor retained site septic tank ground absorption generally suitable subject criterion met flood plain exceedance greater 100 year 1 aep respect aspect indicated septic tank ground absorption generally suitable design septic system septic tank providing household le 10 people handle wastewater pumped everll three liears plant maintenance distribution pipe effluent trench transpiration constructed small shrub larger line larger shrub line experience blockage large plant shade disposal area site evaluation site evaluation carried per appendix b code appendix b indicates test performed wettest time year panel note local resident contested test taken area wettest state advisory committee reviewing subdivision lake eppalock 63 minimum set back distance performance objective criterion may satisfied meeting listed series performance measure including 100 metre surface water within special water supply catchment area declared catchment land protection act 1994 300 metre domestic wilter supply reservolr sand filter slow percolation rate could lead anaerobic condition due prolonged saturation subsequent oxygen depletion well aerated filter recirculating sand filter nitrification occur phosphate usually pas unchanged capability rating site treatment attenuation table provided determine site capability rating table embodies appraisal land feature affecting use appraisal site capability rating determined matrix testing process relevant land feature affecting use include slope land site drainage inundation flooding depth seasonal water impervious layer coarse fragment emerson test relevant horizon mass movement percolation rate percolation test performed lakeside boulevard site setting aside criterion respect location regard distance full supply level lake eppalock would derived application minimum set back distance summarised preceding mark test indicated site could posse favourable site capability rating subject investigation fact seasonal water greater 1 5 natural surface advisory committee reviewing subdivision lake eppalock 64 11 panel commentary 11 1 introductory remark advisory committee found task instance extremely interesting explored number strategic issue respect lake eppalock lake play key role supplying water irrigation domestic supply central advisory committee deliberation need ensure key role threatened advisory committee embodied report considerable detail matter placed public hearing advisory committee purposely taken approach considers issue related proposed subdivision development control lake eppalock area matter planning significance addition considered important indicate background advisory committee undertook deliberation proponent long family association land lake eppalock area dating 1880 initially 1902 langworner derrinal pre emptive right title purchased family following decision undertake construction lake eppalock hill family affected acquisition process ov er significant portion family property hill family find reaching end era considers future derrinal farm enterprise primarily involved broadacre grazing ending mr f hill hold extremely strong view attitude belief regulatory body regard perceived lack management fringe area lake water hold strong opinion management lake water view pollutant generator lake divergent regulatory body concern proponent perceived obfuscation consider generated government bureaucracy predilection prepare numerous report lake eppalock mind proponent little relation ground reality advisory committee reviewing subdivision lake eppalock 65 proponent also draw upon experience earlier subdivision establishment 20 lot urban style subdivision directly adjoining perimeter buffer full supply level lake eppalock early 1960 subdivision initially part extensive proposal urban village including motel proponent forced modify proposal result remaining area associated proposal became stage balance style lot known lot 21 lot 22 lot 21 subject lakeside boulevard proposal seek carry initial urban style lot structure creation 12 lot lot 22 longer held proponent large lot used rural pursuit six lot large rural residential style subdivision close proximity proposed derrinal subdivision described advisory committee report contend previous subdivision activity resulted extensive tree growth pollution lake rubbish foreshore near house sheep cattle dying water sheep cattle defecating urinating water path taken proponent reaching appearance advisory committee interesting proponent lodged subdivision permit application process absolutely supporting information aware request subdivision would meet refusal reality subdivision could achieved rezoning process however attempt made seek rezoning supply relevant information proponent purposely took approach endeavour move around area local government referral authority deliberation gain hearing independ ent body aspiration land development particular instance following appeal refusal planning permit responsible authority lodged administrative appeal tribunal minister planning local government called appeal established advisory committee deal issue l 1 advisory committee reviewing subdivision lake eppalock 66 calling appeal minister indicated correspondence 3 november 1997 registrar planning division administrative appeal tribunal reason action appeal may raise major issue policy relation lake eppalock decision may substantial effect development planning objective minister also prescribed term reference advisory committee referred earlier section advisory committee report direction hearing advisory committee proponent initially sought present case ground claiming three four day intense site appraisal subject land surround would reinforce ground upon sought subdivide subject land subdivision proposal particularly derrinal proposal linked best described vision held proponent development major force driving subdivision vision component follows existing status land relatively poor lack viability salinity problem existed element soil erosion present possible graze cattle right water edge evidence bureaucratic concern ability cattle deposit faeces virtually direct interface water lake action claimed leading generation significant pollutant creation rural residential subdivision would result attracting purchaser would wish enjoy view lake rural atmosphere introduction rural residential lot would result elimination grazing possibility pollution generated animal faeces land new resident would interested reafiorestation land result salinity impact would reduced eliminated reference made possible form control may introduced require tree planting though proponent held belief holder rural residential lot natural desire undertake planting 4 advisory committee reviewin g subdivision lake eppalock 67 introduction rural residential development would enhance area would provide increased rate revenue introduction septic waste disposal system significant distance away lake water would provide far superior form waste treatment virtually pollutant impact lake evident number public facility bordered lake edge advisory committee prepared accept proponent approach advisory committee hearing site proponent strongly advised utilise service consultant provide substantive documentation accompany subdivision proposal enable advisory committee sensibly review approach subsequently undertaken prior commencement advisory committee hearing fair say consultant placed considerable pressure complete task time advisory committee hearing credit place advisory committee report generally directed towards meeting requirement found ministerial direction 6a relating rural residential subdivision application rezoning also aligned requirement development application proposed environmental rural zone eppalock fringe contained proposed greater bendigo following advisory committee hearing examination presented information following issue emerged respect proposed subdivision proposal appropriateness seeking approval subdivision principle permit system function role lake eppalock strategic principle environs lake eppalock lakeside boulevard subdivision principle derrinal subdivision principle 11 2 appropriateness seeking approval subdivision principle permit system indicated council presentation subdivision embrace land within rural zone lakeside boulevard land also appears include residential land possible drafting error area lot minimum area rural zone namely 16 ha advisory committee reviewing subdivision lake eppalock 68 addition lot area recommended guideline area 40ha found document eppalock water supply catchment review land use determination environs lake eppalock document known water quality development issue guideline lake eppalock catchment use permit process instance subdivision approval totally inappropriate subdivision embodying general principle proposal advisory committee would need achieved rezoning case derrinal subdivision would need site specific amendment whilst lakeside boulevard proposal would require extension residential zone embrace lot 1 20 lakeside boulevard rezoning consideration would need give careful consideration policy ramification would associated action advisory committee considers variance policy accommodate possibility permitting form amendment proposal allow proposed subdivision must closely scrutinised great diligence 11 3 function role lake eppalock paramount advisory committee deliberation need accord appropriate recognition role function lake eppalock significant background information provided preceding section advisory committee report evident remark made goulburn murray water coliban water increased emphasis placed water available domestic servicing goulburn murray water stated current usage water lake eppalock predominantly irrigation 15 20 used water supply purpose coliban water stated lake eppalock water provided 30 40 domestic supply bendigo surrounding town supply area investigated water finite resource state victoria imperative stored water lake eppalock protected planning management control enable optimum use water servicing requirement undertaking protection watershed area particularly domestic water supply ultimate use would appear reasonable give recognition degree measured conservatism long term strategy posse inherent characteristic advisory committee reviewing subdivision lake eppalock 69 water ecoscience paper presented behalf goulburn murray water clearly highlighted major influence water quality effluent management long term water quality us stormwater management long term water quality impact construction activity short long term water quality impact significant concern possibility blue green algal bloom resultant toxic impact stored water water becomes rendered unusable toxic bloom thus serviced water supply denied access water addition subjected range associated impact including regard health economic status nutrient viewed major contributor bloom major nutrient nitrogen phosphorous water ecoscience document clearly highlight possibility increase phosphorus must zealously guarded ratio seven part nitrogen one part phosphorous reached condition algal bloom exist currently water lake eppalock exhibit ratio 47 1 whilst may considered seven time removed critical 7 1 ratio increase phosphorous lead marked diminution 47 1 ratio existing ratio indica te phosphorous limiting nutrient whilst evident phosphorous level relatively low increase could stimulate algal bloom process slow imperceptible impact increased development vast catchment allied inappropriate land management practice lead quality water feeding lake eppalock significantly degraded undertaking deliberation advisory committee considers imperative conservative balanced approach used ensure permitted development contravene principle use water lake eppalock optimised resident victoria consequential user murray river particular important recognise highly likely water lake eppalock required supplement domestic supply region 11 4 strategic principle environs lake eppalock awareness need strategic principle existed since initial decision establish lake eppalock advisory committee reviewing subdivision lake eppalock 70 awareness reflected 1983 eppalock water supply catchment review land use determination environs lake eppalock 1985 water quality development issue guideline lake eppillock catchment document refer section 5 2 5 3 advisory committee report respect land subdivision control make reference following key issue provision small rural lot catchment area located close existing service facility physically support development catchment area iv development restricted site identified particular physical constraint affecting suitability use development including land potentially actually subject salting erosion landslip flooding fire catchment area vi general broad rural farming area catchment covered subdivision control specify 40ha minimum size lot catchment area ix application listed provision relating land classified soil conservation authority erosion risk category identified map appendix b guideline xii rural residential development located vicinity existing town land classified soil conservation authority suitable catchment area xx planning provide residential subdivision located adjacent existing township land low erosion hazard appropriate service provided catchment area xxii inside catchment provision made maximum overall density one house per 40ha freehold land issue eppalock planning scheme area xxv future rural residential development permitted contained entirely within low erosion risk area defined soil conservation authority issue eppalock planning scheme area xxvii maximum 352 house catchment area permitted house embracing existing house house arising basic entitlement existing tenement new permitted rural rural residential subdivision multi unit development including house equivalent created caravan park motel etc issue eppalock planning scheme area xxviii xxix advisory committee reviewing subdivision lake eppalock 71 new house constructed minimum 200 metre full supply level lake eppalock 100 metre bank full level stream drainage line issue eppalock planning scheme area xxx document served provide controlling principle deal highly sensitive environs lake eppalock presence resulted control served obviate rampant exploitation vast lake eppalock water area environs greater benefit may accrued proposed planning scheme control introduced latter statement best appreciated fact recent amalgamation council create current city greater bendigo three separate planning scheme embraced lake eppalock environs area addition presence three scheme resulted variance subdivision control found guideline land use documentation found council scheme e g 40ha minium guideline land use documentation 16 ha minium mcivor chapter exists current greater bendigo planning scheme department natural resource environment role referral authority vigilant regard subdivision positively consistently pursued observance subdivision control found guideline land use documentation act form overlay greater bendigo planning scheme land use determination current binding document catchment land protection act 1994 proclaimed catchment including lake eppalock deemed time introduction act special water supply catchment area act land use determination carried forward special area plan acceptance land use determmation documentation special area plan mean state planning policy framework section 15 01 planning authority required regard regional catchment strategy associated management plan special plan approved catchment land protection act 1994 department natural resource environment goulburn murray water draw upon statutory recognition land use determination documentation review land subdivision proposal strongly favour 40ha limit appropriate subdivision control device within lake eppalock environs advisory committee reviewin g subdivision lake eppalock 72 strategic matter impact environs lake eppalock run parallel land subdivision need department natural resource conservation relate subdivision proposal matter aegis namely sustainable agriculture land management program department required encourage adoption sustainable agriculture land management practice catchment water resource program department work key catchment group guarantee long term integrated protection victoria water resource key priority include improving river health managing salinity waterway floodplain surface groundwater water quality development issue guideline lake eppalock catchment subject major review three year approval 1983 review occurred city greater bendigo following amalgamation process required undertake evaluation planning scheme vpp process recognised need view lake eppalock area detailed strategic planning perspective sense awareness occurred growing comprehension variation planning control existing scheme council recognised planning application advisory committee acted catalyst initiate positive approach development strategic planning perspective indicated section 7 advisory committee report council commenced five phase project directed towards setting place strategic framework sustainable use lake eppalock area section 7 3 advisory committee report provides detailed summary first stage component scoping document prepared council mr p waterman environmental service pty ltd presented advisory committee hearing general concept strategy received strong support referral servicing authority also number submitter expressed opinion council supported intent set place strategic framework consultant proponent highlighted funding proposed program still uncertain contended deliberation upon subdivisi ons advisory committee delayed proposed program completed advisory committee reviewin g subdivision lakl eppalock 73 consultant held opinion supporting documentation subdivision substantive capable assessed existing planning control including ministerial direction upon rural residential subdivision also council proposed control environmental rural zone eppalock fringe proposed new planning scheme advisory committee propose comment detail upon paper prepared mr waterman establishment strategic development framework sustainable use lake eppalock area advisory committee hold opinion indeed timely review initiated given following matter significant detailed review water quality development issue guideline lake eppalock catchment undertaken since 1983 planning control area corne one local government authority would valuable evaluate detail merit proposed environmental rural zone eppalock fringe devised vpp planning process significant technological advancement occurred regard land information geographical information system including gathering data via satellite imagery remote sensing detail land ownership etc act valuable aid policy making respect land management city bendigo advantage significant component state land information system based city centre number pilot study performed bendigo area clearer appreciation possible existing control worked particularly regard land management technological advancement occurred dealing waste could evaluated large number study undertaken lake eppalock result incorporated dated review definitive approach required manner lake eppalock fringe interface tourist farming pursuit ensure water quality impinged upon appraisal would first action since restructuring water authority establishment catchment management authority within state advisory committee reviewing subdivision al lake eppalock 75 11 review lakeside boulevard proposal advisory committee considers lakeside boulevard proposal totally inappropriate area located proposal cannot form construed rural residential subdivision would appear based upon part inclusion lot 21 residential zone also extension existing land subdivision pattern pointed council part designation lot 21 residential would appeared generated drafting error refer section 4 1 advisory committee report existing planning scheme would possible construct dwelling portion lot 21 possessed rural zoning earlier subdivision 20 small residential lot enigma overall planning term related existing planning control specifically control found guideline relating protection lake form strategic planning regard subject site would favour introduction 12 small residential lot locality proponent consultant endeavoured mount case built around ability satisfactorily manage waste water stormwater run drew upon perceived geological characteristic area substantiate claim detail summarised earlier section advisory committee report course presentation particular attention paid ability site contained waste proposed septic tank system site detailed guideline dwelling constructed within 200 metre full supply level lake eppalock code practice septic tank indicated performance objective criterion may satisfied meeting listed series performance measure including 100 metre surface water within special water supply catchment area declared catchment land protection act 1994 300 metre domestic water supply reservoir lake eppalock part supply water domestic purpose 300 metre separation would desirable mind advisory committee control applied proposed residence lakeside boulevard area would well within either separation distance advisory committee reviewing subdivision lake eppalock 76 despite claim consultant subsequent report prepared van de graaff associate pty ltd water emerging septic treatment system would pollute water lake eppalock advisory committee hold grave reservation reservation strengthened comment local resident indicated experienced difficulty wet season one submitter stated poor performance still evident wet season even though septic tank serviced broader context advisory committee would difficulty supporting use septic tank environment given state government expending considerable fund eliminate nutrient source catchment providing reticulated sewerage small township accordance nutrient management strategy envisaged proposed residence would source water requirement domestic use fire tank reserve purpose catchment impervious surface acknowledged would require 300 400 square metre impervious surface given general standard housing area advisory committee find difficult accept creation extent impervious surface would occur site examination area reveals significant number existing residence draw water lake also interesting note virtually resident extended fencing property include portion foreshore lake order 400 sq metre arrangement apparently occurred informal arrangement body managing foreshore area reference made proponent consultant possibility minimising generation waste water denying new resident opportunity draw water reservoir nearby resident appearing advisory committee indicated basis experience doubted ability survive without water supplementation reference made fact three residence 20 experienced permanent residency requirement lot would need meet cfa requirement 20 metre cleared buffer area around house fire protection tree planting proposed eliminate potential salinity impact indicated earlier remark advisory committee considers proposed sllbdivision would contranj strategic planning guideline land use determination principle addition regard general performance requirement septic tank al ea lake eppalock 300 metre sepamtion distance enforced advisory committee reviewing subdivision lake eppalock 77 advisory committee considers concern expressed submitter regard proposed 12 lot lakeside boulevard subdivision supported proposal 1lot warrant form approval 11 5 1 possible use lot 21 arriving decision advisory committee considers need appraise function role lot 21 currently viewed playing water quality mitigation role whilst role desirable essence performed land authority ownership rather freeze private land parcel cannot perform meaningful rural function conjunction water quality mitigation role advisory committee considers land viewed product inappropriate subdivision proposed staging form form resulted existing isolation linked rural land technique used past dealing land endeavour find approach strives achieve broad planning objective yet enable realisation land whilst advisory committee considers residential zoning portion land would appeared occurred drafting area rather deliberate planning designation noted city greater bendigo resiled current designation though proposed new planning scheme whole lot 21 posse environment rural eppalock fringe zoning 40ha minimum residential zone set minimum 650 sq metre size inappropriate subdivision subject area advisory committee formed opinion would desirable extend extremely limited development potential subject land objective improving management site introducing planting program aid protecting lake eppalock buffer area endeavouring retain water quality mitigation role two inappropriate subdivision alternative present first allow one residence site series restrictive performance measure control second give consideration allowing two residence site essence creates density one dwelling per 0 8ha advisory conunittee reviewing subdivision lake eppalock 78 advisory committee considers shape form lot 21 lend sensible land use management result investigated introduction two lot subdivision diagram following page illustrates principle would need observed approach bringing forward proposition advisory committee wish stress strongest term proposal viewed precedent subdivision rather must recognised inappropriate subdivision solution inherent component subdivision need human waste treated dry composting system grey water handled septic system possessing dual trenching enable rejuvenation absorption bed significant emphasis placed upon environmental management advisory committee undertaken investigation viability dry composting system current status technological design would appear significant technological advancement occurred system exist endorsed epa also achieved council approval advisory committee advised city greater bendigo recognises dry composting system make environmental contribution advisory committee prepared appendix 3 detailed summary general characteristic dry composting system indicated advisory committee introduction dry composting system handle human waste result grey water easier treat situation arises following aspect quantity water could reduced one third quantity solid could reduced two third result greater interval desludging grey water septic tank quantity nitrogen could reduced 90 phosphorous 60 quantity disease organism could reduced substantially advisory committee acutely aware introduction development land result need site grey water treatment necessitate introduction septic system conform desired setback either catchment control septic tank code advisory committee reviewing subdivisiuns lake eppalol k cl supply noil ti gfn fp al 79 lors 7014ccoju ivith lan scape war l na nt pi an cu u eji rly p antinc n site concep t fo e 2 lot sul div sion lot 21 lakeside soul va l advisory committee reviewing subdivision lake eppulock 80 respect would embody principle contrast remark made advisory committee endorsing objective support catchment protection septic code control 200 metre catchment control 300 metre septic code separation however advisory committee endeavouring find form acceptable compromise still endeavour attain minimisation development impact advisory committee proposes impose control desludging location absorption bed need dual trenching requirement diverting run water away absorption area advisory committee spent time reviewing alternative would deal wastewater environmentally appropriate manner given likely occupation land absentee land owner considers treatment feasible consideration given introduction evapotranspiration system shared common effluent system lagoon treatment balance given likelihood short term stay combination dry compaction system allied associated grey water system accepted sophisticated system require vigilant active site maintenance program properly performed effectiveness treatment system would lost recognised proposal embody element compromise hoped vigorous planting strategy aid removing number concern principle two lot subdivision follows lot approximately area dwelling permitted two created lot must install epa approved dry composting system satisfaction responsible authority grey water system subject nominated management maintenance program overviewed relevant body managing lake eppalock alternatively responsible authority maintenance program include periodic removal least every four year sludge scum accumulates tank absorption bed located maximum distance full supply level pumping septic grey water tank necessary move outflow tank absorption bed advisory committee reviewing subdivision lake eppalock 81 dual trench system provided system allows use trench alternated every 6 12 month permit rej uvena tion surface water run diverted absorption bed area proponent subdivision liable installation grey water system excluding house connection responsible person erecting dwelling pumping equipment prior final approval subdivision approved landscape program directed towards perimeter planting appropriate massed planting significant portion planting must set place proponent subdivision prior approval subdivision proponent must maintain planting sale lot remaining portion planting program detailed permit applied erection dwelling approval sought draw water lake approval draw water gained drawing pump placed body corporate land conjunction provision pump individual meter would need established drawing pipe connection lake established provision must provided proponent availability water aid maintenance property subdivision plan must include restriction sheet clearly delineates envelope embrace sufficient area dwelling absorption bed area record appropriate control measure regard overall waste management system appropriate performance measure provision must made cfa buffer area around future residence possible use portion road reserve purpose existing gravel road must repositioned allow portion cfa buffer component repositioning necessary regardless requirement current road surface cross portion boundary subject site adequate water management measure must introduced deal runoff repositioned road necessary subdivision must recognise requirement associated water management ego sediment trap may required advisory committee reviewing subdivision lake eppajock 82 sediment trap required located within boundary land subdivision form part body corporate land result would responsibility body corporate maintain sediment trap note water management measure appear exist current road application development must include water management measure runoff generated impervious area provision must made site water fire protective purpose considered introduction control ensure future occupier dwelling created lot awareness environmental sensitivity area residing advisory committee prepared support site specific amendment lot 21 lakeside boulevard 2 lot subdivision accordance general principle enunciated 11 6 review derrinal subdivision proposal proposed subdivision derrinal land stark contrast lakeside boulevard proposal represents rural residential subdivision lot significantly larger majority rural residential lot normally range 0 4ha 2ha derrinal proposal presented proponent consultant outlined section 6 2 2 advisory committee report proponent favoured revised proposal achieves 43 lot average area 5 5ha actual size lot dictated underlying land classification subject land located approximately 12 kilometre heathcote nearest town portion land overlook lake victorian speed boat club located relatively close proximity northern section land subject land posse 20 dam allowed run indication exists sensitive form land management ample evidence exists presence spiny rush impact salinity matter commented upon mr marshall presentation advisory committee property accessed bitumen road except gravel road last 2000 metre advisory committee reviewing subdivision lake eppalock 83 proposed lot size general requirement mcivor chapter greater bendigo planning scheme namely minimum area 16ha guideline land use determination documentation recommends minimum lot size 40ha though appear actively monitored ceiling level proposed number dwelling area embraced eppalock development guideline land use determination consultant claim addressed aspect ministerial direction relating rural residential subdivision proposal requirement found environmental rural zone eppalock fringe associated overlay subdivision address requirement form site waste treatment 300 metre full supply level lake eppalock advisory committee spent considerable time reviewing modified proposal brought forward proponent density certainly site sensitive initial subdivision honest endeavour made relate design site characteristic reviewing detail proposal advisory committee appraise various component offer commentary aspect conclusion appraisal summary advisory committee finding provided 11 6 1 lot size relationship site nearest urban area evident preceding remark lot size accordance planning scheme eppalock development guideline land use determination criterion smallest lot size revised subdivision appears order approximately 2 7ha bigger lot could order 8ha result range lot area fall outside general lot area set ministerial guideline indicate rural residential development mean subdivision land one lot area 0 4 2ha aspect contrast initial subdivision lot size readily found conform 0 4ha 2ha criterion significant emphasis upon central principle ministerial guideline rural residential use essentially urban use requires access normal service physical infrastructure provided urban centre allvisory committee rcviewin iubdivisions ak eppaioc k 84 ministerial guideline indicate consideration given planning rural residential area integral part urban area lot within 0 4 2ha size reviewed size efficiently maintained without need agricultural technique equipment aspect appraised evident subdivision pattern location significant variance aspect ministerial guideline lot size indicate necessary certainly undertake agricultural technique access equipment maintenance managem ent lot property cannot deemed form contact urban area indeed development would totally isolated enclave examination note guideline indicates application guideline apply amendment proposing small lot subdivision rural land even though specific criterion relevant amendment providing primarily rural us proposed subdivision would appear readily conform aspect however dealing application criterion still necessary give consideration general principle ministerial guideline provide justification within strategic context basis aspect advisory committee hold concern following matter regard lot size location urban area lack inter relationship subject land near urban area distance separation 12 kilometre viewed inappropriate lot size require resident prepared actively involved ongoing site management access equipment require significant outlay capital given proposed restricted control land regard need self sufficiency respect water management waste water substantive evidence provided purchaser exist necessar resource capability manage lot statement estate agent relating demand generalised indication made basis detailed appreciation control proposed regard site managem ent advisory conunittee reviewing subdivision lake eppajor k 85 mr marshall manages existing farming operation adjoins much earlier six lot subdivision proponent drew attention advisory committee evidence high degree management exists lot majority resident reside permanently upon property specific information found section 9 3 advisory committee report number aspect relating mismanagement referred mr marshall submission lot size conform eppalock development guideline land use determination control strive retain minimum lot size 40ha rural subdivision major portion land recognised land use determination possessing property characteristic would enable used grazing production crop number created lot 43 proponent favoured option would result significant increase number dwelling eppalock environs related overall control figure 352 house referred eppalock development guideline accepting fact control monitored concept overall target retained principle number varied proposed subdivision could viewed ambit claim advisory committee considers granting proposal without appreciation overall perspective may taken revised policy approach proposal city greater bendigo could detract ability landowner environs share overall form development right 11 6 2 site characteristic appraisal site made utilising appraisal medium principle found publication land capability study rural city marong document published 1993 department conservation natural resource study centred around production map unit land soil profile characteristic collected used determine soil capability map unit sustain particular us envisaged land capability information could used planner assist preparation planning strategy encourage appropriate land us management practice land degradation short term long term minimised productivity maintained au l clhrunitccc rcvicwin g subjivisions l lkc eppjiol k 86 stressed publication allowance made social economic consideration mav influence planning consideration indicates assessment process intended restrict development rather identify principal constraint land specified use substantial challenge mounted advisory committee hearing land capability assessment process derrinal site department natural resource environment challenge manner overall capability score derived land component subject land proponent consultant consultant averaged overall score obtain aggregate score component department representative contended averaging approach incorrect highest value listing controlling value assessment contention valid 2 3 land capability publication clearly indicates limiting factor determines capability class related general degree limitation land use general level management required minimise degradation application principle vary number score set environmental management report generally upwards value 1 2 would require greater degree sensitivity dealing land unit critical unit assessment land component 2 majority building development occur embrace 70 glen cooee land system site score building capability would lifted 2 good 3 fair value parameter effecting effluent disposal would elevated 3 fair 4 poor possibly severy poor detailed appraisal environmental management plan found section 6 advisory committee report consultant placed significant stress upon presence range low hill comprised tertiary sand gravel clay separated subject land lake geological attribute perceived capable acting formidable barrier waste water generated development would ensure water quality lake would threatened advisory commihi reviewing subjivisions lake eppillor k 87 conjunction site appraisal conclusion drawn manner site would need managed covered aspect water resource protection salinity fire risk building house work impact adjoining land external road traffic movement advisory committee considers utilisation land capability process found publication relating rural city marong made value contribution site assessment process indeed obviously resulted proponent rethinking initial subdivision design present proposal virtually halved lot yield three major aspect emerged detailed site appraisal water resource handling waste water use land 11 6 2 1 water resource regard water resource considered 300 400 sq metre roof area would necessary provide adequate water need permanent household provided swimming pool spa dishwasher installed comment made possible additional water supply may need purchased occasion recognised 10 000 litre tank water would need installed fire suppression purpose significant discussion took place upon water resource strong concern expressed opposing submitter ability achieve adequate water collection advisory committee noted large roof area required would appear necessitate significant capital outlay achieve coverage appears contrast claim use water based upon need three bedroom house whilst outbuilding roofing could used water collection outbuilding would need substantive function role difficult reconcile purchaser lot requmng extensive building generate adequate water catchment would enjoy constraint imposed living style 11 6 2 2 handling waste water treatment waste water purpose septic system accordance code practice size lot soil classification septic tank would located presence low hill comprised tertiary sand gravel clay separated subject land lake viewed ensuring adverse pollution impact lake advisory conuniltcc reviewing jubc jivisions lak eppajock 88 addition site water management program specifically detailed proposed handle stormwater water authority department natural resource environm ent held specific concern possible impact proposed level development goulburn murray water led consultant mr lllo yd water ecoscience detail issue relating impact eppalock lake document prepared water ecoscience provided generalised overview drew upon broad assumption likely impact reference made impact relating urbanised development document prepared background initial 80 lot subdivision writer advantage studying revised proposal due manner proponent approached approval process nevertheless water ecoscience consultant response questioning advisory committee still grave concern likely long term impact proposal water lake eppalock also failure reconcile development term overall catchment philosophy advisory committee considers insufficient information presented allow quantified assessment manner water lake eppalock may impacted whilst wastewater particular site may capable managed also could stormwater concern advisory committee long term cumulative impact development proposed form may generate side able produce detailed quality informati proponent consultant placed great emphasis upon northern buffer hill ultimate protective measure opponent noted existing drainage line penetrated geological feature entered lake advisory committee recognises proposal stand fall issue alone must inter relate broader range planning matter however advisory committee considers required instance consideration act degree caution aspect allied careful detailed reading lake eppalock development guideline land use determination principle water ecoscience paper appreciation need consider broad strategic context proposal possessing significant development potential detailed stormwater management program area indication provided co ordinated program would achieved amongst lot holder advisory conunittce reviewing subdivision al lake eppaloc k 89 result advisory committee holding high level concern likely adverse water impact particularly lot taken part time resident little interest issue careful site management 11 6 2 3 use land perceived economic benefit servicing proponent considered proposed subdivision would attract resident would live permanently estate general economic reasoning based upon premise also considered order 30 40 subject land would planted initially background documentation reference made 20 hearing estimate increased planting would directed towards offsetting increased water discharge remedy localised area affected salt view advanced profile prospective owner indicate high level interest financial capacity carry extensive tree planting specific attention given typical management task would confront owner land matter absentee owner significant period considered basis complete occupancy resident could deemed relatively high expenditure bracket consultant proceeded postulate employment potential economic benefit heathcote bendigo area advisory committee considers claim proponent regard proposed ownership pattern particularly regard permanent residency totally unsubstantiated difficult accept highly likely would significant number absentee owner appraisal impact development particular attention paid aspect possible management problem may arise advisory committee also accept claim owner would highly interested pursuing tree planting program whereby 30 40 land would developed tree planting could possible include requirement form restriction set place requirement however interesting note hearing mr f hill indicated past experience endeavouring sell rural residential land presence significant control use management land resulted sale difficulty advisory committee observed number past subdivision environmental control observation indicated indeed difficult market land due relatively small market spectrum advisory committet reviewing subdivision al lake eppajock 90 would appear many purchaser rural residential lot seeking freed constraint wish utilise space see fit advisory committee also concern manner staging may occur land market land still undeveloped would managed specific detail provided though comment made staging process would implemented land management control would place advisory committee considers response inadequate particularly land sale live expectation salinity erosion could increase adjoining property may adversely impacted regard supply rural residential lot within greater bendigo area scant information placed advisory committee though council indicate currently adequate supply rural residential lot existed within municipality proponent appeared rely upon fact view lake near presence lake would drawcard would result significant interest subdivision advisory committee doubt immediate demand would result requirement rigorous control would necessary would significantly temper interest respect road construction specific decision made whether road would fully constructed would gravelled issue addressed meaningful information supplied manner run water would handled creation subdivision distant location urban area raise issue whether internal road network vested councilor whether road come control body corporate would responsible maintenance road approach would certainly minimise council expenditure would interest ratepayer create subdivision required substantial cross subsidy proponent envisaged waste would collected council collection could paid additional rate cover cost distant collection presence body corporate could possibly aid dealing aspect council could enter contract body corporate alternativel body corporate could required retain service private contractor advisory cununihcc reviewin subdivision lake eppaiu k 91 advisory committee hold opmlon regard use land economic projection servicing demand proposal lack credibility considered proposal leaf many issue unanswer ed given significant size proposed rural residential lot detail provided possible management aspect 11 7 summary advisory committee response regard derrinal subdivision following appraisal advisory committee summarised finding referencing guideline header found ministerial direction rural residential development appraisal clearly indicates proposal supported assessment summary set inisteria id irection assessment gui e ine ea er 1 h state policy conform regional local policy conform wi th existing proposed vpps control urban area integration conform site located approximately 12km west heathcote supply demand substantive information supplied gnerally greater bendigo area well supplied rural residential lot agency comment agency oppose proposal water protection ground land use compatibility reasonable assessment made variation attitude scoring site consideration respect future land management created lot adequately addressed could lead conflict existing resource protection oirbpllaju prole amount large scale rural residential could erode future overall sustainability strategy ci ty greater bendigo undertaking environs lake eppalock landscape heritage value heritage value landscape impact could managed heal th hazard inter relate protection lake eppalock impact 43 septic system allied storm water management requires detailed study every indication exists long term impact could result infrastructure social service could impact infrastructure servicing negotiation could resolve issue significantly increased pressure mia mia derrinal road killens road advisory corrunittce reviewing subdivi ion lake eppalock 92 framework strategy undertaken city greater bendigo could aid potential subject land reappraised updated overall strategic approach achieved though advisor committee juncture find difficult accept role rural juncture would entirely inappropriate depart existing planning control land considered responsible planning avoid relatively small rural parcellation whilst overall management catchment area directly related 40ha subdivision principle respect claim proponent subdivision would provide remedy stock intruding lake polluting lake immediate interface area defecating urinating advisory committee consider claim constitutes valid reason favouring creation small rural parcel issue stock intruding lake matter management opinion advisory committee constitutes mismanagement land manager failure duty care need protection water eppalock lake day site inspection proponent ensured advisory committee witnessed intrusion stock well beyond full supply level claim proponent stop stock intruding matter address could involve fencing wish gain access water due possible poor water quality exsiting twenty plus site dam proponent endeavour negotiate goulburn murray water draw water lake controlled manner prevent stock intruding lake immediate environs study planning scheme map clearly indicates northern boundary proponent land bounded extensive area public open space separate property lake indication given advisory committee proponent right land advisory committee reviewing ubdivisions al lak epp dlh k 93 12 advisory committee recommendation advisory committee recommends follows 1 process procedure implemented allow proposed subdivision derrinal property either initial revised form subdivision associated permit application 442 97 2 consideration could given minister introduction site specific amendment two lot subdivision lot 21 lakeside boulevard land embraced permit application 441 97 subject subdivision accord following principle lot approximately area dwelling permitted two created lot must install ep approved dry composting system handle human waste installation system must satisfaction responsible authority grey water system subject nominated management maintenance program overviewed relevant body managing lake eppalock alternatively responsible authority maintenance program include periodic removal least every four year sludge scum accumulates tank grey water absorption bed located maximum distance full supply level pumping septic grey water tank necessary move outflow tank absorption bed dual absorption trench system provided trench alternated every 6 12 month ensure rejuvenation occurs surface water run diverted absorption bed area proponent subdivision liable installation grey water system excluding house connection responsible person erecting dwelling pumping equipment prior final approval subdivision approved landscap e program directed towards perimeter planting appropriate massed planting ajvisory corrunittee reviewing ubdivisions ut lakt eppu k 94 significant portion planting must set place proponent subdivision prior approval subdivisio n proponent must maintain planting sale lot remaining portion planting program detailed permit applied erection dwelling approval sought draw water lake approval draw water gained drawing pump placed body corporate land conjunction provision pump individual meter would need established drawing pipe connection lake established provision must provided proponent availability water aid maintenance property subdivision plan must include restriction sheet clearly delineates envelope embrace sufficient area dwelling absorption bed area record appropriate control measure 10 regard operation overall waste management system appropr iate performance measure provision must made cfa buffer area around future residence possible use portion road reserve purpose existing gravel road must repositioned allow portion cfa buffer component repositioning necessary regardless requirement current road surface cross portion boundary subject site adequate water management measure must introduced deal runoff repositioned road necessary subdivision must recognise requirement associated water management ego sediment trap may required sediment trap required located within boundary land subdivision form part body corporate land result would responsibility body corporate maintain sediment trap note water management measure appear exist current road application development must include water management measure runoff generated impervious area provision must made site water fire protective purpose advisory committee reviewing subdivision al lakl eppalo k 95 measure could incorporated section 173 agreement erection dwelling could right subject conforming requirement section 173 agreement embodied restriction sheet forming part approved plan subdivision advisory committee support proponent 12 lot subdivision proposal area 3 minister planning local government give consideration endorsing action city greater bendigo initiate five phase project objective providing strategic development framework sustainable use lake eppalock area presence document viewed advisory committee valuable aid council refereral body administration proposed vvp based planning scheme also achievement water management objective lake eppalock attention minister drawn support given approach representativ e water authority body department natural resource environment advisory committee hearing considered action timely given need review lake eppalock development guideline 1983 land use determination documentation 1985 allied change administrati framework since document introduced advisory committe e would suggest minister may seek approach appropriate minister provide support city greater bendigo complex vital task ensure balanced approach taken provide maximum protection water lake eppalock associated supply water irrigation increasing domestic purpose support ensure review expedited completed within time frame 6 12 month advisory commiltee reviewing subdivision al lake eppaluck 96 appendix 1 term reference advisory committee advisory coauniuee reviewing subdivision al lakl eppalock term reference advisory committee appointed report two proposed subdivision lake eppalock background purpose minister planning local government appointed advisory committee section 151 planning environment act 1987 examine two appeal refusal application subdivision lake eppalock proposed fl aj hill august 1997 greater bendigo city council issued notice refusal grant permit proposed subdivision two application lakeside boulevard residential proposal create additional 12 residential lot speedboat road rural proposal create 81 rural living lot various size applicant lodged appeal administrative appeal tribunal planning appeal no 1997 63178 1997 63186 respectively 3 november 1997 minister planning local government directed registrar administrative appeal tribunal section 4 1 planning appeal act 1980 refer appeal governor council determination without hearing recommendation tribunal task minister planning local government requires advisory committee consider planning merit proposed subdivision address issue raised submission method advisory committee inform way see fit must hold hearing invite greater bendigo city council party made written submission hearing support submission must conduct site inspection appropriate day day liaison advisory committee david johnston department infrastructure bendigo office 03 5434 5150 advisory committee reviewing iubdivisions lake eppajock 98 outcome advisory committee must produce report minister planning local government providing response consideration planning merit proposed subdivision issue raised submission recommendation whether planning permit granted condition recommendation amendment may required facilitate subdivision recommended approved relevant supporting information advisory committee recommend tion description proceeding conducted advisory committee list consulted heard committee timing advisory committee required report writing within four 4 week last hearing date advisory coliuilittce reviewing subdivisio n ut luke eppulock 99 appendix 2 appeal call mr p bentiey whitehorse geoscience pty ltd advisory committee reviewing subd ivisioll lake eppailh k 100 list discovery document provided following review direction hearing 1 lake eppalock catchment water quality desirable development level summary main report 2 map relating land classification identifying soil erosion risk category eppalock catchment appendix b water quality development issue guideline lake eppalock catchment 3 number dwelling currently existence area eppalock control within eppalock planning scheme area 4 number dwelling constructed tenement control within eppalock planning scheme area 5 detail document including raw data extrapolated result lake eppalock catchment initial water quality development issue guideline lake eppalock catchment 6 detail extent location licensing detail extractive industry operation within lake eppalock catchment 7 document fiscal operational nature relating upkeep maintenance improvement road public land within eppalock planning scheme area including public convenience 8 detail current water quality monitoring program extrapolated result undertaken murray goulburn water coliban water relate lake eppalock catchment 9 detail nutrient input modelling including raw data extrapolated result relate lake eppalock upstream catchment current historical document 10 detail sediment loading data stream entering lake eppalock 11 document relate discovery point diffuse nutrient discharge point subsequent monitoring effort 12 document analysing water demand water usage lake eppalock historic current projected advisory corrunince reviewing subdivision lak eppajock lot 13 copy land use determination prepared part area lake eppalock catchment provision soil conservation land utilisation act 1958 successor document special area plan prepared preparation provision catchment land protection act 1994 14 detail leasing licensing tenure arrangement facility public land kimbolton recreation area speed boat club leisure recreational group 15 document relate monitoring testing approval construction operation effluent disposal system servicing lease licence recreational leisure group facility public land abutting lake eppalock including detail planning permit granted responsible authority advisory committe reviewing subdivision lake eppalock 102 appendix 3 overview general principle dry composting system advisory c0mmittcc reviewin g subdivision lake eppalock 103 general principle dry composting system note relate one example epa approved dry compo ting system system service larger 3 4 bedroom home family 6 8 may reside system installed either full time part time residence system located directly toilet possible unit servicing two toilet provided locational constraint met system requiresd minimum clearance 1 metre floor area serviced system installed low set building providing adequate space allowed access periodic maintenance system comprises outer tank approximately 95cm height 120 cm diameter fitted access door inside outer tank 6 bin sit turntable mounted castor rotates around ball socket joint ancillary fitting include toilet venting exhaust fan etc bin require priming placement mushroom compost starter top geotextile filter material human waste collected bin bin take approximately 2 4 month achieve optimum loading depending upon number person using system case intermittent use holiday home period would significantly extended normal full time occupancy six bin would receive optimum loading approximately 12 24 month period bin reaching optimum loading bin rotated allow following bin used waste retained full bin enable aerobic compo sting process operate long enough heat generated decomposition process claimed largely complete within 3 month final empty bin come stream initial bin removed access door geotextile filter material also reused hosing r advisory committee reviewing subdivisi ons lakt epp liock 104 content initial bin fully composted end normal 12 month period utilised garden compost council may require compost placed shallow hole three month prior utilising garden compost food crop full time occupancy estimated produce 20 kilogram per year claimed environmentall safe compost bin cleaned merely hosing bottom bin series channel drainage hole liquid seep lower base pan utilising electric fan exhaust outlet warm air drawn diagonall opposite air inlet vent passed base pan evaporate liquid addition air also circulated around bin aerobic bacteria quickly decompose organic matter essential circulating air 40c greater preferable system draw warm air internal source solar heating sheet double glazing north facing wall area intake vent located alternative exist continuous oxygen flow achieved electric fan exhaust vent pipe continuous exhaust system construction operation system claimed completel odourless fan pull air pedestal instance holiday home fan turned absence slight odour may evident entering hour system establishes natural venting toilet bowl cleaned water brush sponge due waste chute 2s0mm diameter marking claimed minimal passive system available require fan electricity however house design need taken consideration advisory conuninee reviewing subdivision lake eppulock 105 appendix 4 documentation presented advisory committee investigation advisory conunittce reviewing subdivision lake eppalot k 06 guideline preparation environmental management plam stratlifieldsaye rural area city greater bendigo adopted council 6 9 1994 salinity recharge mapping kit cathryn cully department conservation natural resource national soil resource program study land campaspe river catchment 5 lorimer n r schokench department conservation forest land victoria 1987 groundwater central victorian highland department conserva tion natural resource water division extract salt come campaspe catchment salinity management plan extract land capability study rural city marong e j bryant lorimer department conservation natural resource national soil resource program april 1993 code practice septic tank site domestic wastewater management best practice environmental management series publication 451 environment protection authority march 1996 paper prepared proponent van de graaff associate pty ltd potential risk nutrient seeping arising septic tank vicinity lakeside boulevard lake eppalock report proposed subdivision lake eppalock derrinal lakeside boulevard proposal whitehorse geoscience 1998 environmental management report derrinal housing development lake eppalock victoria whitehorse geoscience 1998 environmental management report lakeside boulevard housing development lake eppalock victoria whitehorse geoscience 1998 farm water supply peter thomas department natural resource environment extracted news view december 1997 monthly data eppalock reservoir bureau meteorology 1997 break slope forestry catchment salinity control eclifton p mile g elder centre land protection research department natural resource environment water harvest afforested catchment j holmes e wronski first national symposium forest hydrology melbourne 1982 advisory committee reviewing subdivision lake eppulock 07 ministerial direction 6a rural residential developl1lent associated guideline rural residential de elopment goulbum murray rural water autizority club lease typical epa licence location sewage pond lake eppalock panel submission lake eppalock subdivision developl1lent prepared goulburn murray water water water ecoscience pty ltd january 1998 establishing strategic development framework sustainable use lake eppalock area city greater bendigo project report 1 98 p waterman environmental managemen service pty ltd january 1998 water quality development issue guideline lake eppalock catchment government victoria june 1983 eppalock water supply ca tchment review determination environs lake eppalock protection service february 1985 land use chappel land advi ory corrunilh c revil wing subdivision lake eppaluck 108 appendi x 5 person appearin g advisory committee advisory committee reviewin g subdivision lake eppalock proponent consultant proponent city greater bendigo dept infrastructure goulburn murray water coliban water dept natural resource environment local resident 109 mr f j hill whitehorse geoscience pty ltd mr piele dr garrett mr p bentley m wilkinson mr g spiers mr b smith mr p waterman consultant mr johnston mr p feehan mr g sheehan mr b young mr g marshall mr mr riddell mr mcintosh mr underhili mr evans mr bell mr b noonan |
Patrick Autocare Pty Limited v The Minister for Infrastructure, Planning and Natural Resources (No. 2) [2005] NSWLEC 412 (3 August 2005).txt | patrick autocare pty limited v minister infrastructure planning natural resource 2 2005 nswlec 412 3 august 2005 last updated 8 august 2005new south wale land environment courtcitation patrick autocare pty limited v minister infrastructure planning natural resource 2 2005 nswlec 412parties applicant patrick autocare pty limitedacn 004 497 607respondentthe minister infrastructure planning natural resourcescase number 11609 2004catch word development applicationlegislation cited environmental planning assessment act 1979 nsw sub s 5 ii 76a 7 9 79c 1 c 80 1 4 5 s 79a 82 91 97land environment court act 1979 nsw 39 4 river foreshore improvement act 1948 nsw pt 3acoram lloyd jdates hearing 03 06 2005 06 06 2005decision date 03 08 2005legal representativesapplicant j e robson scsolicitors deaconsrespondent duggan barrister solicitor christine hansonjudgment 60 land andenvironment courtof new south waleslloyd jwednesday 3 august 2005lec 11609 2004patrick autocare pty limited v minister infrastructure planning natural resource 2 2005 nswlec 412judgment 2 introduction1lloyd j appeal unders 97of theenvironmental planning assessment act 1979 nsw ep act applicant patrick autocare pty limited patrick autocare deemed refusal respondent minister department infrastructure planning natural resource dipnr minister development application construction operation intermodal cargo facility 2 proposed development involves capital investment approximately 26 million development state significant development minister consent authority ep act sub s 76a 7 9 minister determine development application within 60 day patrick autocare appeal deemed refusal ep act 82 environmental planning assessment regulation 2000 nsw sub cl 113 1 b ii ep regulation site3 proposed development would located lot 132 145 deposited plan 804256 lot 113 deposited plan 800543 lot 205 deposited plan 787308 broadhurst road ingleburn site site cleared undeveloped highly modified devoid natural topography vegetation weed exotic grass scattered tree stockpile soil located along railway boundary 4 site cover area approximately 5 7 hectare located campbelltown local government area form part existing ingleburn industrial area flank site north west site lie immediately west main southern railway south ingleburn station eastern side railway residential area forming part suburb ingleburn 5 bow bowing creek lie south site separate site patrick autocare existing car processing storage distribution facility 45 stennett road ingleburn vicinity ingleburn industrial area including adjoining subject site creek extensively modified realigned natural feature remain 6 area surrounding site developed industrial factory warehouse industrial unit tend high proportion manufacturing warehouse distribution activity applicant7 patrick autocare subsidiary patrick corporation australian public company provides vehicle processing distribution service major national international vehicle manufacturer national operation facility state 8 patrick corporation embarking nationwide strategy increase amount cargo transported rail strategy includes establishment strategically located intermodal rail facility cargo transferred train truck local delivery proposed development patrick corporation intends strategy also result increase number privately operated freight rail service increasing competition efficiency transport sector proposed development9 proposed development construct operate intermodal cargo facility cargo transported site via rail port botany melbourne distribution site via truck 10 proposed development would involve two operation vehicle transfer operation container operation would developed three stage three year period stage 1 vehicle transfer operation11 vehicle transfer operation intended provide transportation rail locally manufactured vehicle toyota manufacturing plant melbourne victoria patrick autocare existing facility ingleburn specifically stage 1 includes part development comprising construction operation two 400 metre long rail siding vehicle transfer operation installation acoustic wall landscaping security fence relocation existing power line construction use temporary site facility installation lighting drainage tarmac parking 12 facility would designed receive 700 metre long train carrying capacity 280 vehicle per trip 2 x 400 metre long siding three train per week initially proposed monday wednesday friday arriving melbourne 6 00am departing approximately 1 00pm could deliver approximately 42 000 car facility per annum 13 present demand 32 000 car delivered melbourne per annum therefore initially actual train length set meet volume requirement train 500 metre long carrying capacity 200 car demand exceeds 42 000 per annum high level crossing bow bowing creek must constructed car train service would required increase one 700 metre long train per day six day week 14 arrival train would moved siding two half would unloaded driving car southern end train stored facility car would distributed retailer truck directly site train returning melbourne would utilised transport limited number specially ordered imported car used local car stage 2 container operation15 container operation intended provide container consolidation distribution rail transport international import export shipping container campbelltown district port botany specifically stage 2 includes part development comprising construction operation additional two 400 metre long rail siding container operation installation heavy duty pavement cargo storage truck bay installation two gantry crane loading unloading cargo container construction use internal access road 16 two 400 metre long siding container train would constructed accept 700 metre long train carrying capacity 90 teu twenty foot equivalent unit train entering leaving site would total carrying capacity 180 teu container train expected arrive facility port botany 10 00am depart 2 00pm monday saturday basis one train per day six day week fifty week year total rail capacity approximately 54 000 teu per annum although allowing 80 per cent utilisation actual capacity likely 43 200 teu per annum 17 demand exceeds capacity one train per day second train introduced operation however dedicated freight line macarthur port botany operational operation limited one per day rail infrastructure corporation ric advised present could schedule second container train night 18 addition maximum 12 container train movement may occur outside normal hour operation within 12 month period 19 siding container would lifted train one two gantry crane placed container storage stack three container 7 5 metre high eight container deep container would collected site road truck transported final destination 20 container destined port botany would delivered site truck stored site loaded onto train transport port stage 3 ancillary works21 stage 3 includes part development comprising ancillary work including installation rail siding construction use permanent site office maintenance workshop landscaping car park hour operation22 normal working hour proposed development 5 00am 6 00pm monday saturday activity undertaken facility would include gantry crane loading unloading container forklift reachstackers moving container container stack truck entering idling leaving car entering leaving unloaded train train entering leaving siding 23 notwithstanding proposed normal working hour proposed development limited 24 hour operation facility train may arrive depart outside scheduled time meet requirement ric proposed facility requires train arrives departs 6 00pm 10 00pm site activity period would similar occurring normal working hour 10 00pm 12 00 midnight train would loaded unloaded gantry crane cargo would dispatched truck midnight arriving train would brought siding shutdown 15 minute train would take le 15 minute depart thus activity would occur 12 00 midnight 5 00am would arrival departure train cargo handling would occur time impact rail movements24 375 rail movement past intermodal site every working day proposed rail schedule operation increase number movement 4 379 movement represents increase le 1 5 per cent existing rail movement impact truck movements25 present approximately 32 000 locally manufactured car transported truck melbourne patrick autocare ingleburn existing facility local distribution proposed development would eliminate activity associated generation approximately 8 000 truck movement 14 4 million truck kilometre per year melbourne sydney specifically hume highway m5 road network within campbelltown city addition proposed facility would also remove 42 000 container truck movement 3 million truck kilometre per year port botany macarthur region 26 consequence reduced truck movement fuel consumption would reduced approximately 1 71 million litre subsequently greenhouse gas emission would also decrease estimated 4 500 tonne per annum resulting le photochemical smog sydney basin 27 proposed development distribution centre melbourne manufactured car would relocated existing facility new site car carrier truck would travel extra 200 metre however would temporary high level crossing bow bowing creek proposed link existing facility new site 28 facility capacity accommodate 40 truck site however proposed schedule maximum 20 truck onsite given time proposed maximum three train per 24 hour period would generate maximum 250 truck movement per day 29 proposal includes preparation traffic management plan contribution pursuant 94 contribution plan landscaping acoustic wall30 proposed development includes landscaped berm comprising crib wall sloping garden bed 10 metre zone along eastern boundary site address potential impact noise visual amenity concern low wall 1metre high would positioned crest berm serve safety balustrade well acoustic barrier overall height berm low wall would 6 metre level proposed track within facility landscaped buffer incorporating wetland system also proposed along western side boundary broadhurst road stennett road 31 distance landscaped wall stack container taking account slope site would fall away ingleburn road mean container would likely concealed sight top gantry crane would painted visually recessive colour would seen 32 proposed landscaping would maintain streetscape vista site bow bowing creek reserve would eliminate existing le appealing attribute industrial precinct viewed residential zone acoustic wall associated landscape berm would appear vegetated relief consistent rural view west security night lighting33 proposed development would policed 24 hour security security fencing would installed around perimeter site 34 floodlighting would installed various point around site perimeter visibility night work security night lighting would designed lighting would contained within facility lighting eastern side site would mounted inside noise screen minimise light spill employment35 proposed facility would provide 15 permanent site position 20 locally based truck driving position addition employment benefit would arise potential attract labour intensive depot warehousing operation well packing international shipping container adjacent site development application process36 development application da 357 10 2002 proposed development lodged minister 15 may 2002 development application subject appeal however differ material respect development application subject appeal application subject commission inquiry coi environmental aspect development 37 commissioner kevin cleland scoireport minister dated december 2003 exhibit b 2 tab 8 concluded environmental aspect proposed development preclude approval subject recommendation minimise control residual environmental impact restrict night time operation 38 commissioner cleland made following finding regarding proposed development environmental impact operation facility would remove 8 400 car carrying truck movement per year melbourne sydney would also remove 42 000 container truck movement per year port botany macarthur region one train operating per day port botany ingleburn proposed replacement road transport rail reduce greenhouse gas emission improve air quality generally reduce traffic burden major arterial road sydney region truck traffic road close sydney would reduced new train truck movement would centred patrick autocare site truck movement limited maximum 250 per day heavy vehicle servicing site would add traffic local road including campbelltown road however mid block congestion campbelltown road minor delay intersection campbelltown road williamson road peak period local road network accommodate predicted increase generally maintaining good level service facility comply relevant noise level criterion provided confirmed acoustic barrier constructed acoustic barrier site effectively landscaped high standard ensure visual amenity locality maintained floodlighting designed directed light spill minimised noise arrival placing wagon patrick autocare siding departure train cannot directly compared noise normal operation main southern railway line strategic planning impact operation industrial area ingleburn minot campbelltown narellan sydney southwest generated 16 8 per cent export cargo 25 000 teu 6 2 per cent import cargo 32 000 teu port botany 2000 according study conducted sydney port corporation annual growth rate containerised cargo 7 per cent past 3 decade clear significant containerised cargo passing port botany either destined originates macarthur region state commonwealth government recognised need infrastructure proposed development overall environmental benefit using rail transport instead road developing infrastructure theindependent review proposed enfield intermodal terminal february 2003 morris report exhibit b 1 tab 11 honourable milton morris ao concluded need additional intermodal terminal capacity sydney coming decade need well planned planning must take account recent development three nsw commercial port road construction issue around construction freight rail track sydney principle intermodal terminal demand numerous small facility strategically spread across metropolitan area order maximise distance container travel rail minimise distance travelled road ingleburn site identified two rail access corporation rac predecessor ric study preferred location intermodal facility based requirement rac thesydney metropolitan rail site study july 1998 exhibit b 1 tab 2 identified part ingleburn site ingleburn sw stennett road ingleburn potential site new rail operation study found site suitable freight operation adjacent main southern line direct access provided new connection installed north south rail corridor enfield yard sydney port themetropolitan land bridging concept study december 1998 also commissioned rac concluded number terminal would required satisfy volume geographic distribution industrial zone across sydney study preferred network terminal rather single limited number terminal study identified site ingleburn sydney metropolitan rail site study government committed construct dedicated freight line macarthur chullora would link enfield port botany freight line provide dedicated freight line metropolitan sydney part upgraded melbourne sydney brisbane corridor dedicated freight line would adjoin proposed development hence movement freight train generally well train entering site would constrained commuter train main railway line 39 commissioner cleland conclusively found established need proposed development land zoned permit development operation could managed minimise environmental impact resident 40 24 september 2004 minister consent authority development application determined application pursuant sub s 80 4 80 5 theep actby granting consent stage 1 vehicle transfer operation requiring stage 2 3 container operation ancillary work subject consent consent issued 23 november 2004 stage 1a proposed development access driveway internal access road car park construction operation site office 41 20 october 2004 patrick autocare lodged second development application minister stage 2 3 proposal container operation ancillary work minister determine second application within 60 day consequently deemed refusal subject appeal relevant statutory planning controls42 following statutory planning control apply proposed development campbelltown urban area local environmental plan 2002 greater metropolitan regional environmental plan 2 george river catchment state environmental planning policy 11 traffic generating development state environmental planning policy 33 hazardous offensive development state environment planning policy 34 major employment generating industrial development draft state environmental planning policy 66 integration land use transport campbelltown city council development control plan 52 street car parking policy 5 2 18 campbelltown city council industrial development policy 5 2 1343 relevantly thecampbelltown urban area local environmental plan 2002 lep development proposed land specified zone 4 general industry zone development purpose intermodal cargo facility innominate permissible use within zone permissible development consent lep sub cl 12 4 44 proposed development also constitutes integrated development 91 theep actas requires permit department infrastructure planning natural resource underpt 3aof therivers foreshore improvement act 1948 nsw department issued general term approval relation issue permit 45 addition noted par 2 proposed development state significant development 76a 7 b theep act thus also advertised development within meaning cl 5 theep regulation 46 pursuant 79a theep actand theep regulation nearby landowner occupier notified development application application publicly exhibited advertised 47 minister received 54 submission public exhibition period following submission received 5 submission state government local government body including rail corporation new south wale railcorp provided 2 submission support campbelltown city council provided 2 submission opposition sydney regional development advisory council road traffic authority provided 1 submission raised objection b 9 submission business business association including one submission ingleburn chamber commerce industry inc 8 support one opposition andc 40 submission private individual opposition issues48 principally issue decided whether court consent authority grant refuse consent development application ep act sub 80 1 49 specifically minister statement issue identifies issue whether appropriate regard proper integrated future planning sydney region determine phase 2 3 proposed development prior finalisation sydney metropolitan freight strategy determination government preferred option container movement intermodal terminal location sydney metropolitan area regard object sub 5 theep act ii object sub 5 ii theep act iii suitability site development sub 79c 1 c theep act andiv sub section 39 4 theland environment court act 1979 nsw court act 50 relevantly sub s 5 5 ii theep actprovide particular object act encourage proper management development conservation natural artificial resource including agricultural land natural area forest mineral water city town village purpose promoting social economic welfare community better environment ii promotion co ordination orderly economic use development land 51 finally sub 39 4 thecourt actprovides 4 making decision respect appeal court shall regard relevant act instrument made act circumstance case public interest 52 inpatrick autocare pty limited v minister infrastructure planning natural resource 2005 nswlec 277 held matter identified par 49 relevant consideration determination development consent also held question determining authority decide weight given consideration identified issue became principle essential issue appeal together submission development application noted par 47 respect three objector also gave evidence expanding upon ground objection referred evidence53 respondent called three objector give evidence proceeding m noelene holliday resident mr ian campbell macarthur intermodal shipping terminal mr scott phillip campbelltown city council also called m leisbet spanjaard department infrastructure planning natural resource m noelene holliday54 m noelene holliday resident ingleburn 43 year resides 82 ingleburn road m holliday written minister notified proposed development express concern particular m holliday expressed following particular objection proposal noise impact associated increased train movement hour operation switching point train split two reversing train especially prior 5 train arrive facility wait outside site proposed acoustic wall insufficient noise caused train arrival departure extends along entire length train line travel beyond facility site fume emitted proposed facility engine truck distributed south westerly wind truck create noise dust traffic congestion parking problem damage country road area facility container storage unsightly facility take job operator area allowance 12 movement beyond normal hour operation every 12 month unreasonable would mean month resident would disturbed mr ian hinde campbell55 mr ian campbell consultant engaged macarthur intermodal shipping terminal mist assisted mist preparation written submission relation proposed development mist direct trade competitor patrick autocare conduct intermodal operation transporting container port botany rail site minto mr campbell conceded evidence biased result consultancy mist said unbiased mist vested interest ensuring proposed development approved 56 examination chief mr campbell claimed mist already operates intermodal cargo facility macarthur area contention patrick proposed development reduce truck movement greenhouse gas emission incorrect also although mr campbell expressed concern regarding future capacity site use gantry crane rail noise operating hour truck traffic queuing consequent greenhouse gas emission night lighting employment opportunity cross examination conceded condition recommended commissioner cleland would address objection previously raised mist written submission minister tocoi 57 cross examination mr campbell also accepted summary mist submission thecoireport accurate commissioner cleland summary mist submission exhibit b 2 tab 8 p 17 principally concluded mist objected proposed development consider use expansion mist operation genuine alternative patrick use operation would reduce choice rail operator even thus also fair competitive trade arena necessary australia future mist submission also noted patrick autocare 50 per cent ownership pacific national owns half rail infrastructure mist relation mr campbell strongly denied knowledge fact mist patrick autocare currently involved legal commercial dispute mist permitting patrick autocare access siding owned patrick autocare mr campbell admit approval proposed development would cause mist suffer commercially though claimed mist would benefit increase industrial land value mr scott phillips58 mr scott phillips manager development service campbelltown council assisted preparation council submission relation proposed development behalf council mr phillips amplified objection council including submitted thecoi public particular mr phillips stated following objection council support port freight plan need remove transport road rail though recognises proposed development right development wrong location although proposed development many strategic benefit development adequately appropriately address number issue including visual amenity noise light spill traffic transport infrastructure impact local amenity great inadequacy information limited opportunity community consultation revised documentation prejudice community right fully understand respond proposal 59 cross examination mr phillips stated proposed application differ significantly development considered commissioner cleland mr phillips claimed although read expert report relation local impact development commissioner cleland including noise traffic air quality visual amenity aware recommendation suggested commissioner believe recommendation addressed impact sufficiently particular mr phillips conceded knew commissioner finding relation abatement noise impact acoustic wall acoustic wall would effective located council land east railway line rather patrick autocare land west moreover stated knew patrick autocare amended development application council refused give owner consent allow acoustic wall built east railway line noted council prepared change mind relation owner consent despite admission mr phillips reiterated concern council concerning acoustic impact facility associated train movement enter proposed site 60 mr phillips also conceded council member made 50 000 contribution chain intermodal shared service hub eastern seaboard australia cis help cicces establish public private partnership stakeholder business tier government develop effective alternative distribution path business main freight corridor eastern seaboard efficient mix road rail infrastructure supported appropriate technology stated take issue account providing evidence court m leisbet spanjaard61 m liesbet spanjaard provided oral evidence written statement evidence dated 19 may 2005 exhibit 3 m spanjaard employed director freight strategy planning within transport planning division dipnr since january 2004 work development intermodal freight strategy sydney metropolitan area 62 m spanjaard written statement evidence dated 19 may 2005 exhibit 3 outline following submission behalf minister relation proposed development intermodal terminal facility enables exchange freight usually container mode transport imported container often transported rail intermodal facility unloaded train either loaded onto truck delivery consignee taken warehouse site unpacked distributed customer smaller lot exporter pack cargo container site deliver road intermodal facility alternatively truck cargo packing facility intermodal terminal transported rail port provision sufficient intermodal capacity match volume container moved rail critical therefore increase rail freight mode share necessarily result increase demand intermodal terminal network port freight plan october 2003 premier announced port growth plan formerly metropolitan intermodal freight strategy set framework order development nsw container port time cabinet directed minister investigate opportunity increasing rail mode share two action formed basis development port freight plan port freight plan major strategic policy initiative address required transport network infrastructure future metropolitan intermodal terminal network 13 december 2004 minister outlined following key element port freight plan thesydney future forum ii exhibit 2 tab 37 also published press release exhibit 2 tab 38 identified target 40 rail mode share container moving port significant increase current level 21 ii need additional work done investigate preferred design intermodal terminal network including location capacity new intermodal terminal necessary transport infrastructure handle projected growth imported exported container movement next 20 year order achieve 40 rail mode share container capacity within intermodal terminal network must match projected volume container movement within metropolitan area capacity current intermodal network composed 4 main terminal villawood camellia minto yennora 300 000 teu per annum insufficient port botany expansion proceeds therefore comprehensive intermodal terminal network required freight infrastructure advisory board fiab established provide advice intermodal terminal network design potential change operating practice element port freight plan including freight infrastructure charge fiab first met february 2005 since invited interested stakeholder make submission relation issue board working time frame providing report minister end july year may incorporated advice dipnr regarding implementation port freight plan fiab term reference identifies following key area initial focus board intermodal terminal network improve freight distribution transport infrastructure required support metropolitan intermodal terminal network structure amount mean collection economic impact possible port freight charge container moved road port botany potential change work practice including truck tracking minimise queuing port gate container container maximise efficiency truck haulage strategy minimise unnecessary movement container across city maximise federal funding support implementation freight strategy liaison industry stakeholder work performed date indicates satisfy projected demand future intermodal terminal need following characteristic need significantly larger existing terminal capable accommodating least 300 000 teu per annum need provide fully integrated facility incorporating site warehousing empty container storage consolidation de consolidation product ability consolidate sufficient cargo enable operation block train accommodate potentially longer train currently operating order maximise use existing infrastructure sufficient size capability ensure capital investment worthwhile commercially viable term volume throughput offer competitive neutrality provide access rail operator closely located key road arterial route industrial area throughout sydney well located freight rail line wherever possible capable operating 24 hour day 7 day week order maximise return investment terminal importantly utilise network maximum capacity likely new terminal require sufficient buffer around minimise conflict residential area regarding impact local amenity number possible location identified future intermodal terminal indicated minister speech thegreater western economic freight forumon 13 april 2005 exhibit 2 tab 34 work still conducted determine preferred location conjunction fiab investigation government decision preferred location form part port freight plan release second half 2005 relationship proposed port botany expansion proposed development port botany handle majority container new south wale number container steadily growing trade growth moreover 85 container port handled within 40km port although currently approximately 21 container transported port rail sydney port corporation development application proposed expansion port botany currently subject commission inquiry decision proposed expansion set clear indication future container volume port application 40 rail mode share target forecast number determine many container transported rail within metropolitan area number turn determine intermodal terminal capacity required sydney current terminal capacity consequently dipnr unable finalise port freight plan commissioner report available minister determines port botany expansion proposal approved condition consent significance port freight plan determination proposed development approval development application new intermodal terminal prior release port freight plan capacity undermine work dipnr fiab ultimately integrity outcome strategic planning process addition would also capacity undermine orderly economic development land objective theep act ep act 5 ii development port freight plan well advanced however unreasonable expect dipnr developer strategy finalise release strategy decision future port botany made resolved inappropriate recommend approval new intermodal terminal may surplus requirement represent poor economic use land 63 addition m spanjaard expressed following personal view proposed development statement evidence site may large enough cope neither projected increased volume container movement integrated operation empty container storage necessary number teu generate likelihood longer single load train port terminal close proximity site residential area may preclude consent 24 hour 7 day week operation desirable maximise efficiency infrastructure e utilisation rail network port premature grant consent would permit development new intermodal facility ingleburn potential role proposed ingleburn site within broader metropolitan intermodal network design made clear 64 evidence chief m spanjaard reiterated objection contained statement evidence stated proposed development government port freight plan due following reason proposed development cannot considered isolation though rather part broader strategic network intermodal cargo facility supporting road rail network train movement part proposed development would place footprint rail network would preclude ability future planning maximise network achieve government policy 40 per cent rail mode share 2011 achieve government target 40 per cent rail mode share optimal intermodal cargo facility sufficient buffer located near residential area enable operate 24 hour seven day week turnover approximately 300 000 teu per year satisfy growing demand transportation containerised cargo cannot reach threshold capacity deliver volume may commercially unviable commissioner cleland clearly recommended facility operate due proximity residential area therefore approval facility basis commissioner recommendation would limit capacity facility turnover approximately 50 000 teu per year facility would satisfy demand cargo transportation would limit capacity government achieve 40 per cent rail mode target share current investigation fiab optimal strategic freight network modelling potential network approval development may frustrate delay finalisation investigation formulation strategy three six month similarly proposed storage three container 7 5 metre high eight container deep would operationally inefficient would slow loading time considerably storage container requirement 700 metre train split two processing proposed development operationally inefficient need split train two wait place reduces number cycle rail operator achieve thus increase capital cost rail transport making le attractive market maximise efficiency reduce congestion network smaller number larger train rather greater number smaller train also reduce overall amount heavy container truck whole road network intermodal cargo facility integrated facility site warehousing distribution empty container storage container cleaning repair finding rac thesydney metropolitan rail site study july 1998 exhibit b 1 tab 2 irrelevant study identified part site proposed development suitable rail operator intermodal cargo facility within strategic network site identified report site 10 capable receiving 1200 metre long train themorris report february 2003 exhibit b 1 tab 11 recommended approval given site comprehensive study conducted determine strategy network intermodal facility comprehensive commission inquiry conducted rail operation prior approval 65 cross examination m spanjaard conceded read expert report prepared relation impact proposed development tendered thecoi noted however commissioner finding recommendation well themorris report made prior development government policy establishment fiab commencement inquiry port botany expansion m spanjaard stated dipnr submission commission considered proposal strategically located beneficial encouraging substitution road transport rail transport consistent state policy accepted court given significant weight 66 m spanjaard also conceded knew minister identified ingleburn suburb suitable location intermodal cargo facility address thesydney future forumon 13 december 2004 exhibit 2 tab 37 announced stage one port freight plan conceded government committed albeit provided full approval construction dedicated freight line macarthur chullora metropolitan sydney would adjoin proposed development proposal requires eis review funding development would even suitable freight train movement generally well train entering proposed site would constrained commuter train main railway line 67 m spanjaard told court government policy relation intermodal cargo facility could found minister speech thegreater western sydney freight forumon 13 april 2005 exhibit 2 tab 34 indicated within 3 4 month document containing guideline development future intermodal facility term criterion meet order support achievement rail mode target 40 per cent would produced may legislated may become state environmental planning policy said primary desire government move container rail conceded proposed development development may well consistent government policy finally conceded however minister wanted delay determination proposed development determination thecommission inquiry proposal sydney port corporation construct operate new container terminal associated infrastructure port botany city botany bay local government area coi port botany expansion minister subsequent determination port botany proposal m spanjaard stated would impossible give indication whatsoever thecoi port botany expansionwill determined thus port freight plan would finalised addition however conceded proposed development depend viability existence justification may may happen relation port botany proposal agreed facts68 minister concedes objection development application cannot basis court refuse consent pursuant 80 1 b theep act 69 importantly m sa duggan appearing minister concedes proposed development application complies requirement relevant statutory planning control moreover concedes development consistent zone objective provided sub cl 12 2 lep sub clause 12 2 lep relevantly provides 12 zone 4 general industry zone 2 zone objective effect objective zone encourage activity contribute economic employment growth city campbelltown b allow range industrial storage allied activity together ancillary us opportunity locate within city campbelltown c encourage high quality standard development aesthetically pleasing functional relates sympathetically nearby adjoining development protect viability commercial centre city campbelltown limiting commercial activity associated permitted industrial storage allied development e ensure development carried unless consent authority satisfied process carried transportation involved plant machinery material used interfere unreasonably amenity area except otherwise provided plan consent must granted development land within zone unless consent authority opinion carrying proposed development would consistent one objective zone patrick autocare submissionsgeneral submissions70 patrick autocare submits court consent authority grant consent proposed development 80 1 theep act prior finalisation sydney metropolitan intermodal freight strategy known port freight plan determination government preferred option container movement intermodal terminal location sydney metropolitan area 71 patrick autocare submits subject site highly suitable proposed development 79c 1 c theep act following reason adjacent main southern railway connection melbourne newcastle botany surrounded existing transport industrial development connection major metropolitan road network significant reduction traffic movement region significant reduction generation greenhouse gas additional employment opportunity short distance major manufacturing centre western south western sydney 72 patrick autocare statement environmental effect exhibit 1 pp 8 10 state proposed development accordance national state policy recognise need environmental benefit intermodal cargo terminal commonwealth government 1998 national greenhouse strategy recommends establishment new intermodal freight terminal view substituting freight journey using rail road mode place road transport alone well facilitating road rail link improve intermodal container movement auslink program commonwealth new framework funding infrastructure also support development intermodal container movement aimed increasing percentage freight moved rail program includes development new intermodal facility industrial zone outskirt city contain urban road transport trip enhance rail efficiency 73 addition new south wale government 25 year air quality management plan action air anintegrated freight management strategyacross road rail transport mode supporting establishment new intermodal freight terminal prepared assist achieving target reducing pollution reducing per caput growth vehicle kilometre travelled 74 fundamentally statement environmental effect state develop economic environmentally efficient transport system capable dealing steady growth containerised trade strategically located intermodal facility proposed development required enable transfer cargo rail road transport manufacture market subsequently ensure economic prosperity 75 addition written submission mr j e robson sc appearing patrick autocare statement environmental effect exhibit 1 p 41 state proposed development consistent finding themorris report exhibit b 1 tab 11 pp 13 15 conducted honourable milton morris ao themorris reportconcluded need additional intermodal terminal capacity sydney coming decade planning capacity need comprehensive must take account recent development three nsw commercial port road construction issue around construction freight rail track sydney report stated preferred strategic approach development intermodal facility demand numerous small facility spread across metropolitan area order maximise distance container travel rail minimise distance travelled road 76 particular statement environmental effect state proposal meet satisfies key criterion successful intermodal terminal established sydney port corporation submission themorris report proposed development following characteristic close proximity cargo market access rail network access arterial road network sufficient land zoned relevant industrial rail purpose socially environmentally sustainable potential impact community identified addressed 77 particular facility located close proximity cargo vital continuing role part sydney growth corridor facility access rail network proposed construction dedicated freight line increase facility capacity suitability movement freight train generally well train entering site would constrained commuter train main railway line although facility actually reduce number existing truck movement site close proximity south western freeway m5 enhances suitability site site located ingleburn industrial area form part significant industrial area within southwest corridor likely become important productive area sydney suitability site enhanced proximity existing patrick autocare site stennett street proposed development socially environmentally beneficial detailed noise traffic visual study confirm proposed site one suitable site intermodal cargo facility themorris reportidentified seventeen existing potential site proposed site short listed one six site noted least potential impact community 78 furthermore mr robson sc submits subject site highly suitable proposed development also identified two rac study preferred location intermodal facility 79 thesydney metropolitan rail site study july 1998 exhibit b 1 tab 2 pp 21 22 identified part proposed site site 10 ingleburn sw stennett road ingleburn potential site new rail operation study found site suitable freight operation adjacent main southern line direct access provided new connection installed north south rail corridor enfield yard sydney port 80 similarly themetropolitan land bridging concept study december 1998 concluded network number terminal would required satisfy volume geographic distribution industrial zone across sydney significantly study identified site ingleburn sydney metropolitan rail site study 81 mr robson sc submits dipnr also consistently endorsed strategic appropriateness site thecoi exhibit b 2 tab 4 p 27 tab 5 p 8 ultimately mr smith statement evidence dated 31 may 2005 exhibit c show difference proposed development thecoiis current proposal adopted recommendation commissioner cleland therefore urge court adopt finding recommendation commissioner specific submissions82 mr robson sc submits specific area consideration appeal current position port freight plan andii weight accorded evidence m spanjaard current position port freight plan83 m duggan appearing minister adduced evidence identify process development proposed port freight plan minister relies evidence urge court exercise jurisdiction refuse consent pursuant sub 80 1 b theep act 84 relation issue mr robson sc asks court consider judgment inpatrick autocare pty limited v minister infrastructure planning natural resource 2005 nswlec 277on preliminary point law particular following statement court course determine appeal development application information available time hearing becomes question weight given matter identified par 1 respondent statement issue minister aboriginal affair v peko wallsend limited 1986 hca 40 1986 162 clr 24 stockland development limited v manly council 2004 nswlec 472 2004 136 lgera 254at 272 273 determining weight given question court course guided joint judgment inwilson v minister aboriginal torres strait islander affair 1996 hca 18 1996 189 clr 1at17 18 namely court must determine application independently wish advice executive government even case government policy relevant factor consideration 85 mr robson sc submits neither m spanjaard statement evidence speech minister m spanjaard referred oral evidence contain evidence amount policy draft policy otherwise identifiable government policy terrace holding pty limited v sutherland shire council 2003 nswca 289 2003 129 lgera 195at 209 219 81 per mason p spigelman cj ipp ja agreeing stockland development limited v many council 2004 nswlec 472 2004 136 lgera 254at 88 92 per mcclellan j evidence m spanjaard establishes dipnr process developing port freight plan 86 mr robson sc submits m spanjaard statement evidence dated 19 may 2005 merely state october 2003 port growth plan announced 7 20 ii cabinet directed minister investigate opportunity increasing rail mode share 7 20 iii december 2004 first element strategy government would target 40 rail mode share containing moving port increase current level 21 announced iv freight infrastructure advisory board established term reference including intermodal terminal network design provide report minister july 2005 29 87 mr robson sc submits event simply compelling evidence would suggest directly indirectly proposed development would contrary policy especially light plethora material supporting application particularly various government department indeed dipnr support note oral evidence m spanjaard agreed evidence suggest earlier view dipnr changed though rather sought differentiate dipnr view previously expressed commissioner cleland relate land use 88 mr robson sc also submits nothing provision legislation subject matter scope purpose theep actor thecourt act would require allow court give determinative weight consideration minister assertion relevant strategy developed moreover argues public interest court consent authority regard give weight assertion m spanjaard policy strategy developed mr robson sc submits public interest served determining application accordance law actual existing policy draft policy referred 79c theep act ii weight accorded m spanjaard evidence89 mr robson sc submits evidence m spanjaard personal view likely content port freight plan par 9 30 36 statement evidence suitability ingleburn site par 40 statement evidence speculative little weight 90 mr robson sc submits without port freight plan least draft plan prepared example public discussion evidence m spanjaard personal view likely content port freight plan little weight argues finding consistent relevant authority 91 specifically mr robson invite court considerstockland development 90 92 mcclellan j set matter considered determining weight accorded urban design control planning policy honour said par 90 92 public interest purpose theep actmust extend well founded detailed plan adopted council site proposed development either alone forming part greater area even formally adopted development control plan opinion weight given detailed policy depend upon number matter policy generated little public consultation designed defeat project known consideration developer particular site may given little weight course intrinsic attribute policy may given significant weight weight dependent included policy established way however position would markedly different policy result detailed consultation relevant party including community owner affected land reflects outcome within range sensible planning option mind matter relevant determining weight given planning policy adopted council follows extent research public consultation undertaken creating policy time policy force extent review effectiveness extent policy departed prior decision compatibility policy objective provision relevant environmental planning instrument development control plan compatibility policy policy adopted council relevant government agency whether policy contains significant flaw assessed convention planning outcome accepted appropriate site area affected 92 mr robson sc submits impossible apply principle instockland developmentin current proceeding policy evaluate port freight plan cannot shown exist submits although court exercising jurisdiction 80 theep act required regard current material available evidence presented m spanjaard statement evidence amount little indication likely content policy incomplete inaccurate misleading form basis court exercise jurisdiction refuse consent minister aboriginal affair v peko wallsend limited 1986 hca 40 1986 162 clr 24at 45 per mason j seedrake v minister immigration ethnic affair 1979 24 alr 577at 591 per bowen cj deane j 607 per smithers j also submits matter put forward amount government wish advice contrary obligation court independently determine appeal wilson v minister aboriginal torres strait islander affair 1996 hca 18 1996 189 clr 1at 18 mr robson sc conclusively submits evidence m spanjaard personal view likely content port freight plan rejected evidential value determination court appeal 93 consistently mr robson sc argues evidence m spanjaard personal view suitability ingleburn site par 40 statement evidence also speculative irrelevant court determination development application argues event m spanjaard personal view contrary earlier study recommendation comment including minister submission thecoi exhibit b 2 tab 4 p 27 recommendation commissioner cleland report minister exhibit b 2 tab 8 pp 56 57 merely illustrates information change policy develops 94 ultimately mr robson sc concludes evidence m spanjaard relation proposed development current material available incomplete uncertain determinative weight relation patrick autocare appeal 95 however extent m spanjaard opinion approval proposed development may inconsistent yet formulated port freight plan accepted mr robson sc submits general submission set par 73 82 suitability site preferred accepted particular argues location proposed development consistent earlier identification suitable location example themorris reportand two rac study subject micro planning issue technical merit issue m spanjaard express opinion inconsistent broad strategy create policy may ever materialises give direction evolution freight strategy new south wale 96 mr robson sc contends independent whim government court unequivocal evidence support conclusion subject site eminently suitable purpose intermodal cargo facility proposed operated patrick autocare furthermore argues extent desire executive government reflected genesis port freight plan current proposal depend upon port botany event still accordance proper desire increase transport freight rail submission conclusion97 conclusion mr robson sc submits minister evidence relation port freight plan specifically m spanjaard evidence either establish policy extent may establish policy cannot given determinative weight court refuse consent therefore consent granted development application following submission said support finding operation prescribed time limit imposed 82 theep actand cl 113 theep regevinces legislative policy promptitude decision making theep actin respect development application parliament sought enable determination put hold minister got around formulating policy strategy particular matter could said theep act b proposed development complies strategy policy certainty known relation intermodal facility rail freight strategy see example minister submission thecoi exhibit b2 tab 4 c content detail future policy port growth plan unknown timing policy unknown extent dependent upon port botany expansion thecoi port botany expansion content effect entirely unknown court cannot refuse consent basis policy may forthcoming legislative warrant defer making decision proposed development policy may may formulated event current proposal depend upon expansion port botany e foundation minister suggestion put high determine application prior formulation relevant policy dire serious even material detrimental consequence transportation containerised cargo port botany evidence respect way serious consequence approving development accepting technical merit issue left unresolved shut one eye obvious material benefit environment namely massive reduction truck traffic port botany macarthur region ignore undisputed reality need indeed government commitment increasing amount cargo transported rail minister submissions98 minister principal submission court consent authority refuse consent proposed development 80 1 b theep act since consent granted prior finalisation port freight plan determination government preferred option container movement intermodal terminal location sydney metropolitan area reformulated set detailed submission understand advanced support contention state government policy intermodal cargo facility port freight plan99 m duggan appearing minister submits final state government policy regarding development network intermodal cargo facility called port freight plan plan currently progressing towards detailed strategic document reflects policy allows policy implemented policy written environmental planning instrument piece legislation m duggan relies upon court appeal decision ofterrace tower holding v sutherland shire council 2003 nswca 289 2003 129 lgera 195 mason p said 81 event matter relevant public interest touching particular application confined appearing published environmental planning instrument draft final obviously instrument carry great time determinative weight source information concerning public interest planning matter nothing theenvironmental planning assessment actstipulates environmental planning instrument mean discerning planning policy public interest 100 m duggan submits althoughterrace tower holdingsconcerned weight given draft state environmental policy 79c theep act clear case policy need form draft final environmental planning instrument submits policy evolves government pronouncement necessary minister necessity public consultation draft policy 101 contrary submission mr robson sc m duggan asks court distinguishstockland development submits case applicable case court considering development control plan policy generated context council power power different constrained compared state government case note instockland developmentmcclellan j however recognise policy based research consultation given considerable weight need written document reflective outcome within range sensible planning option 91 102 m duggan submits port freight plan clearly stated state government acted upon note minister announced plan october 2003 exhibit 2 tab 42 mean achieve state government target increasing rail modal share freight transport moving port botany 40 per cent 2011 increase present 21 per cent submits plan developed minister provide comprehensive coordinated network strategically located intermodal cargo facility associated infrastructure address continuing increase container trade plan form part nsw metropolitan strategy currently implemented many policy 103 m duggan argues fact policy target make le policy opposition mr robson sc submits policy amount much mere wish desire dictation state government wilson minister committed toinvestigate implement whatever mechanism required order ensure target achieved 104 m duggan submits substantial significant evidence relation existence formulation state government policy 40 per cent rail mode share port freight plan well extensive progress towards development implementation plan achieve target relies following submission support contention february 2004 nsw government made submission thelegislative council standing committee state development inquiry port infrastructure new south wale exhibit 2 tab 40 p 8 noted development port growth plan address important strategic issue relation future port development nsw coming 20 year recognised plan provide strategic direction allow private sector commence planning next tranche major container growth throughout nsw also allow public sector provider road rail infrastructure settle long term development plan submission noted intermodal freight planning group convened purpose providing advice minister b october 2004 dipnr provided arevised primary submission coi port botany expansion exhibit 2 tab 39 p 30 recognised port freight plan set strategic direction role various nsw port public private industry accommodate expected growth trade port coming decade submission noted plan intended ensure coordinated approach development metropolitan intermodal terminal capacity manage balance freight passenger access rail network thereby increase reliability rail access port botany also recognised plan designed address upstream issue associated proposed port botany expansion constrained ability accommodate longer train either port metropolitan rail network intermodal terminal metropolitan area whether sufficient intermodal terminal capacity exists sydney fact whether capable delivered within timeframes consistent forecast growth container traffic ensure proposed increase proportion container moved rail 40 rail modal share achieved port botany broadly submission indicated port freight plan expected finalised inclusion sydney metropolitan strategy available early 2005 c 13 december 2004 stage one port freight plan announced thesydney future forum exhibit 2 tab 37 p 217 associated medium release exhibit 2 tab 38 p 226 minister announcement highlighted government commitment 40 per cent rail mode share target annual container movement port botany 2011 container initiative increase rail mode share including investigation freight infrastructure charge establishment fiab design intermodal terminal network improve freight distribution 13 april 2005 minister speech thegreater western sydney freight forum exhibit 2 tab 34 p 12 indicated pursuant term reference annexure c m spanjaard statement evidence exhibit 3 fiab provided interim report minister identified focus larger intermodal facility sophisticated network intermodal facility relies part upon provision augmentation state government infrastructure minister noted need larger facility capable 300 000 box per year opposed capacity proposed development 45 000 container per year statement environmental effect exhibit 1 p 12 also made clear nominated site intermodal terminal subject full environmental assessment addition independent commission inquiry e dipnr specifically transport planning division headed m spannjard working development port freight plan particular researching modelling number option intermodal cargo network sydney metropolitan area achieve 40 per cent rail mode share modelling different network operation required capacity accommodate movement freight limited finite number window rail network infrastructure need identify window network determine timetabling train capacity facility operational commitment based current demand occupy window network unavailable user according m spannjard oral evidence cannot regained minister trying prevent thead hocdevelopment facility occupy window meet necessary capacity 40 per cent rail mode share policy minister favour smaller number larger facility capable handling longer train able transport greater amount freight within single window ideally located relation infrastructure employment amenity effective serve port market minister person capacity determine network option eventually adopted m spannjard know cannot speak minister stage weight given port freight plan105 m duggan submits port freight plan policy upper echelon hierarchy policy made state government capacity affect great number people throughout metropolitan sydney state nsw potentially commonwealth argues plan ripple effect capacity local level effect location intermodal facility zoning land well state level effect impact facility upon use efficiency rail road infrastructure informs significant budgetary consideration relation upgrade maintenance infrastructure evidence show finalisation policy imminent virtue reason m duggan submits port freight plan given significant weight determining whether consent granted refused proposed development especially given potential affect economic efficient use land ep act 5 1 ii relationship port growth plan coi port botany expansionand proposed development106 m duggan submits capacity port botany port nsw receive container determined thecoi port botany expansionwill inform development port freight plan intermodal cargo network option chosen minister achieve 40 per cent rail mode share submits therefore thecoi port botany expansionhas completed minister cannot finalise port freight plan 107 m duggan argues interdependence emphasis importance plan strategic policy otherwise container capacity port botany may able moved proposition supported therevised primary submission dipnr coi port botany expansion exhibit b 2 tab 10 p 33 discussed par 103 b also thesubmission reply dipnr coi port botany expansion february 2005 exhibit b 2 tab 13 pp 8 9 108 particular m duggan submits dipnr ssubmissions replyclearly identify relationship port growth plan proposed expansion port botany prepared announcement plan government target 40 per cent rail mode share 2011 submission highlight importance plan first step achieving increased intermodal terminal capacity appropriate location facilitate efficiency container movement rail make rail movement attractive compared road freight thereby alleviating environmental social impact road mode share note submission specifically recognise intermodal terminal important complement port capacity part downstream network distribution system plan earmark port botany nsw port handle forecast container trade growth coming decade 109 m duggan submits achieve 40 per cent rail mode share ensure economic wellbeing state integrity highly co ordinated interdependent cargo transport network port intermodal cargo facility must maintained 110 submits given m spannjard undisputed evidence hearing thecoi port botany expansionwere completed february 2005 belief report delivered imminently expectation final plan would released second half 2005 accepted delay finalising plan awaiting outcome port botany inquiry unreasonable port freight plan proposed development111 m duggan concedes minister cannot guarantee proposed development form part intermodal cargo transport network port freight plan ultimately assist achievement policy m duggan submits however although development increase current rail share capacity contrary requirement final plan location size capacity term teus per annum argues likely reduce capacity entire network achieve 40 per cent rail mode share target undermine implementation plan following submission said support proposition due location next residential area requirement lep zone 4a objective proposed development capacity operate 24 hour day support high turnover container traffic m spannjard told court approved development therefore unlikely able modified either fresh consent otherwise increase capacity accommodate container flow excess proposed application achieve throughput 300 000 teu b proposed development integrated facility capacity warehousing like capacity within facility handle freight way would reduce truck movement andc site proposed development extremely limited siding accommodate train 700 metre long large train 1500 metre long racsydney metropolitan rail site study july 1998 exhibit b 1 tab 2 identified part ingleburn site ingleburn sw stennett road ingleburn potential site new rail operation however site identified considerably larger subject site capable handling 1500 metre long train provided new connection installed north south rail corridor enfield yard sydney port subject site small accommodate train 1500 metre potentially required meet 300 000 teu turnover per annum identified desirable purpose achieving 40 per cent rail mode share target 112 due operational constraint light need maintain integrity entire intermodal cargo transport network noted par 107 m duggan submits approval development utilised site capacity compromise efficiency economic viability facility would contrary objective theep actrequiring court ensure land used orderly economic way ep act 5 ii 113 accordingly m duggan submits factor associated development properly considered court satisfied facility would adverse impact upon implementation plan would public interest submits development approved frustrate policy dipnr modelling intermodal freight network option would redone finalisation port freight plan could delayed 6 month addition submits state government spend considerable amount taxpayer money upgrade infrastructure accommodate development would capacity could accommodated within network absent approval development 114 applying benefit cost m duggan argues development consent refused benefit approving development patrick autocare sole independent operator cost borne every taxpayer state new south wale potentially pay augmentation infrastructure efficiency movement freight pushing back co ordinated policy submits proposed development approved prior finalisation port freight plan 115 conclude m duggan submits clear state government policy toward intermodal cargo facility port freight plan developed mechanism implement policy significant substantial work done finalise plan imminently support facilitate strategic coordinated transportation freight metropolitan sydney beyond argues would clearly public interest pre empt policy approve facility proposed development anad hocbasis potential undermine implementation state government policy preclude efficient transport freight metropolitan sydney argues public interest would best served enabling government finalise port freight plan enable establishment co ordinated efficient freight transport system new south wale irrelevance relevance previous inquiry subject site coi morris report rac studies116 m duggan submits investigation best manage freight transportation sydney many year finally culminated announcement port freight plan state government policy 40 per cent rail mode 2011 accordingly argues investigation report inquiry prior release plan policy target includingcommissioner cleland coi themorris reportand therac study made different strategic context precursor plan target m duggan submits neither sought forward plan target contemplated possible expansion port botany therefore court exercise caution considering give significant weight determining proposed development m duggan relies following submission support proposition identification ingleburn either suburb site announcement plan policy assist court determining application example minister speech 13 december 2004 announcing stage one port freight plan thesydney future forum exhibit 2 tab 37 p 217 merely identifies number application lodged development intermodal cargo facility including suburb ingleburn though specifically subject site similarly noted par 111 although racsydney metropolitan rail site study july 1998 exhibit b 1 tab 2 identified part ingleburn site potential site new rail operation site identified considerably larger subject site capable handling 1500 metre long train b themorris report february 2003 exhibit b 1 tab 11 p 15 recognises need additional intermodal terminal capacity sydney coming decade need well planned honourable milton morris ao merely expressing personal opinion stated believed numerous small facility strategically spread across metropolitan area order maximise distance container travel rail importantly recommends development intermodal terminal site cannot justified stage light emergent logistic issue sydney metropolitan area need addressed first c finding thecoiby commissioner cleland report used commissioner cleland make finding helpful inquiry considered different development application different time prior release plan policy target proposed port botany expansion establishment fiab moreover development application thecoiand current proposed development completely different relation capacity hour operation example thecoiconsidered 24 hour operation evidence m spanjaard117 m duggan submits evidence m spanjaard discounted merely town planner argues m spanjaard evidence essential inform court implication proposed development strategic requirement state relation proper movement freight proper strategy ensure efficient movement freight state new south wale m duggan submits patrick autocare failed bring evidence post announcement policy plan suggest position stated m spanjaard relation issue accepted submission conclusion118 conclusion m duggan submits court could satisfied approval proposed development prior finalisation port freight plan public interest promotes orderly economic use land social economic welfare community suitable given site constraint submits court could satisfied development would furtherance state government policy capacity undermine policy prevent 40 per cent rail mode share achieved conclusion119 principle issue decided whether court consent authority grant refuse consent development application ep act sub 80 1 120 noted par 68 minister concedes objection development application cannot basis court could refuse consent oral evidence m holliday mr campbell mr phillips alter position recognise concern objector though note proposed development complies requirement relevant statutory planning control find condition proposed development adequately deal concern addition find mr campbell evidence given little weight given admission unbiased representative mist direct trade competitor patrick autocare 121 therefore determining whether grant consent proposed development prior finalisation port freight plan determination government preferred option container movement intermodal terminal location sydney metropolitan area court need consider desire meet objective act including orderly economic use land social economic welfare community sub s 5 ii theep act need promote public interest sub 39 4 thecourt act suitability site sub 79c 1 c theep act issue specifically identified minister statement issue noted par 49 122 argument advanced m duggan addressing consideration said lead finding proposed development capacity undermine government policy target 40 per cent rail mode split finalisation port freight plan port freight plan policy123 accept m duggan submission formulation establishment effective freight transport system significant policy challenge new south wale many year also accept state government undertaken continues undertake significant work resolve problem relevantly announced policy target 40 per cent rail mode share 2011 achieved development implementation port freight plan note plan currently development intended provide comprehensive coordinated network strategically located intermodal cargo facility associated infrastructure address ongoing increase container trade accept port freight plan state government policy finalised far reaching capacity affect people throughout sydney state new south wale also potentially commonwealth port freight plan coi port botany124 also note relationship port freight plan thecoi port botany expansion clear state government awaiting outcome thecoi port botany expansionand minister determination proposed expansion prior finalising port freight plan weight accorded port freight plan125 determining whether grant consent proposed development however court may regard current information available time hearing note operation time limit imposed 82 theep actand cl 113 theep regevinces legislative policy promptitude determining development application accordingly find based evidence court government process developing port freight plan however finalised clear policy draft policy otherwise identifiable government policy court place determinative weight terrace holdingsat 209 219 81 stockland developmentat 88 92 clear evidence relation policy plan especially provided m spannjard incomplete uncertain form basis court exercise jurisdiction refuse consent minister aboriginal affair v peko wallsend limited 1986 hca 40 1986 162 clr 24at 45 per mason j seedrake v minister immigration ethnic affair 1979 24 alr 577at 591 per bowen cj deane j 607 per smithers j accept submission mr robson policy plan although relevant consideration amount government wish advice therefore contrary obligation court independently determine appeal wilsonat 18 find therefore inappropriate give policy plan significant determinative weight determining appeal court although remains relevant consideration port freight plan coi port botany proposed development126 accordingly accept consent proposed development refused solely basis submission report thecoi port botany expansionwill delivered imminently subsequently port freight plan finalised second half 2005 would unreasonable refuse consent solely basis noting m spanjaard conceded cross examination would impossible give indication whatsoever thecoi port botany expansionwill determined thus port freight plan would finalised moreover also stated proposed development depend viability existence justification may may happen relation port botany proposal port freight plan proposed development127 m spannjard m duggan also relevantly conceded minister could guarantee proposed development ultimately form part intermodal cargo transport network port freight plan assist achieving 40 per cent rail mode share 128 thus reject submission m duggan proposed development capacity undermine government policy target 40 per cent rail mode split finalisation port freight plan contrary development promote policy target acknowledge m spannjard evidence par 62 64 approval development frustrate government policy dipnr modelling intermodal freight network option required redone finalisation port freight plan may delayed however note government still undertaking modelling work port freight plan remains process developed therefore accept m duggan submission approval development public interest delay finalisation plan impact development marginal impact total freight movement rail impact merely incorporated present modelling planning process proposed development suitability public interest sub s 5 ii 129 find difference substance proposed application development considered commissioner cleland thecoi mr smith statement evidence dated 31 may 2005 exhibit c show substantial difference proposed development thecoiis current proposal adopted recommendation commissioner cleland accordingly accept finding commissioner relation development find environmental impact preclude approval subject recommendation minimise control local environmental impact moreover note dipnr also consistently endorsed strategic appropriateness site development intermodal cargo facility thecoi exhibit b 2 tab 4 p 27 tab 5 p 15 m spanjaard agreed evidence court indicate view dipnr changed 130 proposed development complies requirement relevant statutory planning control strategy policy certainty known relation intermodal facility rail freight strategy 131 addition note proposed development generate 1 5 per cent increase rail movement per day 4 rail movement per day two full two empty added existing rail traffic 375 train per day already passing site self evident therefore impact upon capacity entire rail network serious dire submitted m duggan marginal moreover given government committed construction dedicated freight line adjoining site even apparent impact proposed development intermodal cargo network significant accordingly accept m duggan submission limited size capacity proposed development reduce capacity entire network achieve 40 per cent rail mode share target 132 facility would actually several positive benefit contrary m duggan submission would actually government policy state commonwealth government recognised need infrastructure proposed development overall environmental benefit using rail transport instead road developing infrastructure environmental benefit proposed facility outlined par 22 34 38 include significantly reducing truck movement fuel consumption currently associated transportation container thus also reducing greenhouse gas emission improving air quality generally lessening traffic congestion major arterial road sydney region overwhelmingly clear proposed development significant environmental benefit 133 find subject site highly suitable development intermodal cargo facility accept submission patrick autocare outlined par 71 81 respect particular site identified two rac study preferred location intermodal facility proposed development suitable pursuant sub 79c 1 c theep actas adjacent main southern railway connection melbourne newcastle botany surrounded existing transport industrial development sufficient land zoned purpose development connected major metropolitan arterial road network environmentally sustainable significantly reduces traffic movement generation greenhouse gas socially sustainable creates additional employment opportunity impact community comprehensively assessed proximate major manufacturing centre western south western sydney 134 site suburb ingleburn also identified suitable development intermodal cargo facility previous investigation inquiry recently minister identified ingleburn appropriate suburb location intermodal cargo facility speech 13 december 2004 announcing port freight plan thesydney future forum exhibit 2 tab 37 p 217 thesydney metropolitan rail site study july 1998 exhibit b 1 tab 2 also identified part subject site potential site new rail operation adjacent main southern line direct access provided new connection installed north south rail corridor enfield yard sydney port similarly themetropolitan land bridging concept study december 1998 identified site suitable location one number terminal within network terminal required satisfy volume geographic distribution industrial zone across sydney 135 although site identified rac study larger subject site able accommodate train 1500 metre long site identified chosen due proximity rail network relevantly noted government committed construct dedicated freight line would adjoin proposed development clearly enhance suitability site movement freight train generally well train entering site would constrained commuter train main railway line 136 addition note themorris reportalso identified ingleburn appropriate area location intermodal cargo facility honourable milton morris ao former minister transport new south wale found numerous small facility strategically spread across metropolitan area order maximise distance container travel rail minimise distance travelled road proposed development clearly accordance recommendation 137 conclude therefore site eminently suitable proposed intermodal cargo facility accordingly agree commissioner cleland finding established need proposed development land zoned permit development operation managed minimise environmental impact resident 138 find approval granted proposed development prior finalisation port freight plan determination government preferred option container movement intermodal terminal location sydney metropolitan area proposed development strategically located enable development economically environmentally efficient transport system capable dealing steady growth containerised trade new south wale ensure continued economic prosperity state thus find approval proposed development public interest sub 39 4 thecourt act promote orderly economic development land social economic welfare community sub s 5 ii theep act 139 m duggan submitted event court decided grant consent staged development submission advanced however support contention accordingly absence reason development staged consent granted whole development sought party otherwise agreed appropriate condition consent court orders140 court order 1 appeal upheld 2 development application intermodal cargo facility lot 132 145 deposited plan 804256 lot 113 deposited plan 800543 lot 205 deposited plan 787308 broadhurst road ingleburn determined grant development consent subject condition set annexure 3 order cost 4 exhibit may returned hereby certify preceding 140 paragraph true copy reason judgment herein honourable mr justice h lloyd associatedated 3 august 20051annexure apatrick autocare pty ltd v minister infrastructure planningland environment court proceeding 11609 2004conditions consentschedule 1application made patrick autocare pty ltd minister infrastructure planning respect lot 132 145 dp 804256 lot 113 dp 800543 lot 205 dp 787308 broadhurst road ingleburn campbelltown local government area following construction operation intermodal cargo facility cargo transported site via rail port botany melbourne distribution site via truck development would include vehicle transfer operation container consolidation distribution operation rail siding site office maintenance workshop landscaping carpark development application da 256 10 2004 lodged department infrastructure planning natural resource 20 october 2004 accompanied byintermodal cargo facility broadhurst road ingleburn statement environmental effect two volume prepared city plan service dated october 2004 state significant developmentunder section 76a 7 act development classified state significant development virtue declaration made minister planning 3 august 1999 respect rail freight terminal integrated developmentthe proposal requires additional approval department infrastructure planning natural resource therivers foreshore improvement act 1948 consequently classified integrated development unders 91of theenvironmental planning assessment act 1979 commencement consentpursuant tosection 83 2 theenvironmental planning assessment act 1979 consent operates date determination lapse consentpursuant tosection 95of theenvironmental planning assessment act 1979 development consent liable lapse five year date operates unless use land building work subject consent actually commenced date consent would otherwise lapse key conditions1 general4scope development4surrender development consents4statutory requirements4utilities infrastructure42 compliance43 environmental performance5air quality impacts5soil water quality impacts5noise impacts6waste generation management7visual impacts7traffic transport impacts84 environmental monitoring auditing8noise monitoring8auditing95 community information consultation involvement9complaints procedure106 environmental management monitoring10environmental representative10construction environmental management plan11operation environmental management plan127 environmental reporting14incident reporting14annual performance reporting14schedule 2in consent except far context subject matter otherwise indicates requires following term meaning indicated actenvironmental planning assessment act 1979applicant patrick autocare pty limitedconstruction activity requiring construction certificate part 4a theenvironmental planning act 1979 laying slab significant excavation workscouncil campbelltown city councildepartment nsw department infrastructure planning natural resourcesdevelopment development consent appliesdirector general director general nsw department infrastructure planning natural resource nomineedust solid material may become suspended airminister minister infrastructure planning nomineeregulationenvironmental planning assessment regulation 20001 generalscope development1 1 applicant shall carry development generally accordance development application da 256 10 2004 lodged department infrastructure planning natural resource 20 october 2004 b intermodal cargo facility broadhurst road ingleburn statement environmental effect two volume prepared city plan service dated october 2004 c landscape plan 203022 ld 01 vers 00 203022 ld 02 vers 00 dated 1 october 2003 site plan p095 d3 02 six sheet dated 25 june 2004 andd condition consent 1 2 event inconsistency document listed condition 1 1 consent condition consent condition shall prevail extent inconsistency surrender development consents1 3 applicant shall within six month date consent surrender minister development consent relating development application da 357 10 2002 granted 24 september 2004 23 november 2004 statutory requirements1 4 applicant shall ensure licence permit approval obtained maintained required throughout life development condition consent remove obligation applicant obtain renew comply licence permit approval applicant shall ensure copy consent relevant environmental approval available site time development utility infrastructure1 5 applicant shall responsible cost associated undergrounding relocation overhead 66kv electricity line feeder 860 11kv feeder line lancaster street barf road alteration required existing main broadhurst road due development underground main crossing main southern rail line 1 6 prior issue occupation certificate development applicant shall obtain sydney water section 73 compliance certificate thesydney water act 1994 2 compliance2 1 applicant shall put place management system take reasonable step ensure employee contractor sub contractor aware comply condition consent relevant respective activity 2 2 applicant shall responsible work subject consent environmental impact may result work shall put place environmental management system governing conduct person site including contractor subcontractor visitor 2 3 prior event listed c within period otherwise agreed director general applicant shall certify writing satisfaction director general complied condition consent applicable prior event event undertaken stage applicant may subject agreement director general stage submission compliance certification consistent staging activity relating event commencement physical work site b commencement construction development andc commencement operation development 2 4 notwithstanding condition 2 3 consent director general may require update report compliance part condition consent update shall meet requirement director general submitted within period director general may agree 2 5 applicant shall meet requirement director general respect implementation measure necessary ensure compliance condition consent general consistency document listed condition 1 1 consent director general may direct measure implemented response information contained within report plan correspondence document submitted accordance condition consent within time director general may agree 3 environmental performanceair quality impacts3 1 applicant shall permit offensive odour emitted beyond boundary site defined section 129 theprotection environment operation act 1997 3 2 applicant shall undertake development manner minimises prevents dust emission site including wind blown traffic generated dust activity site shall undertaken objective preventing visible emission dust site visible dust emission occur time applicant shall identify implement practicable dust mitigation measure including cessation relevant work appropriate emission visible dust cease soil water quality impacts3 3 applicant shall ensure section 120 theprotection environment operation act 1997 prohibition pollution water complied connection carrying development erosion sedimentation3 4 soil vegetation disturbed removed site shall disposed stored appropriate location cannot washed site 3 5 construction vehicle exiting site access unpaved area shall depart via wheel wash facility 3 6 applicant shall install appropriate erosion control eg haybales prevent soil sediment loss site applicant shall ensure sediment laden run site enter bow bowing canal bay stage development 3 7 applicant shall install erosion sedimentation pollution control infrastructure prior commencement soil disturbing activity site infrastructure maintained design capacity duration soil disturbing work time disturbed area stabilised rehabilitated act going source sediment stormwater drainage3 8 stormwater runoff collected hardstand area carparks roadway shall collected treated prior discharge 3 9 stormwater runoff naturally draining site shall collected discharged site stormwater system 3 10 applicant shall design implement maintain stormwater management system site capable collecting containing treating stormwater least one three month ari storm peak flow riparian protection enhancement3 11 applicant shall undertake development manner cause damage increase erosion bank associated bow bowing canal 3 12 applicant shall design construct maintain stormwater outlet structure located within 40 metre bow bowing canal ensure structure compromise stability function riparian zone design outlet structure within riparian zone including pipeline spillway shall accordance department guidelinestormwater outlet structure streamsand shall approved director general prior commencement construction work within riparian zone3 13 applicant shall establish maintain riparian zone consisting local native plant specie area development bow bowing canal within property boundary zone shall designed ensure bed bank stability area prevent sedimentation water quality impact canal result development riparian zone shall designed constructed meet requirement department shall addressed part landscape management plan required condition 6 5d consent 3 14 applicant shall maintain riparian zone required condition 3 13 period least two year final planting every six month period applicant shall submit satisfaction director general status report detailing progress implementation landscape management plan noise impacts3 15 applicant shall minimise noise emission plant equipment operated site relation development installing maintaining wherever practicable efficient silencer low noise muffler residential standard replacement reversing alarm alternative silent measure flashing light restriction hours3 16 car train arriving site 6 00am shall enter site shall shut approach line engine shall restarted uncoupling placement wagon site siding 6 00am 3 17 applicant shall undertake construction activity associated development including delivery material site following hour 7 00 6 00 pm monday friday inclusive b 8 00 1 00 pm saturday andc time sunday public holiday 3 18 applicant shall operate development following hour 5 00 6 00 pm monday friday inclusive b 5 00 6 00 pm saturday andc time sunday public holiday 3 19 notwithstanding condition 3 18 consent applicant may undertake rail operation loading unloading train outside hour indicated condition 3 18 12 occasion 12 month period 3 20 time restriction specified condition 3 16 3 18 consent may varied director general agreement proposed variation time including result community consultation director general may require applicant undertake providing information necessary director general reasonably determine activity undertaken varied hour adversely impact acoustic amenity receptor vicinity site noise limits3 21 applicant shall design construct operate maintain development ensure noise contribution development background acoustic environment exceed maximum allowable noise contribution specified table 1 residence affected noise development maximum allowable noise contribution apply wind speed 3 m 1 measured 10 metre ground level orb temperature inversion condition 3oc per 100 metre wind speed 2 m 1 measured 10 metre ground level table 1 maximum allowable noise contributionday |
Cankulovski and Secretary, Department of Family and Community Services [2001] AATA 1034 (21 December 2001).txt | cankulovski secretary department family community service 2001 aata 1034 21 december 2001 last updated 21 december 2001decision reason decision 2001 aata 1034administrative appeal tribunal n2001 812general administrative division kiril cankulovskiapplicantand secretary department family community servicesrespondentdecisiontribunalms n belldate21 december 2001placesydneydecisionthe decision review affirmed sgd m n bellmembercatchwordssocial security carer allowance carer payment eligibility adult disability assessment tool discrepancy health professional assessment applicant assessment care recipient care needssocial security act 1991 section 38c 198and954reasons decisionms n bellmember1 application mr kiril cankulovski applicant review decision social security appeal tribunal ssat dated 28 may 2001 affirmed decision centrelink delegate secretary department family community service respondent dated 8 march 2001 cancel applicant carer payment carer allowance respect wife mr cveta cankulovska latter decision reviewed authorised review officer aro affirmed decision dated 23 march 2001 2 tribunal document lodged respondent pursuant tosection 37of theadministrative appeal tribunal act 1975 document respondent statement fact contention applicant appeared behalf gave oral evidence tribunal respondent represented m angela smith background3 following background information provided respondent disputed applicant prior introduction carer allowance change qualification criterion carer payment july 1999 applicant receipt carer payment successfully appealing rejection claim payment following introduction carer allowance change qualification criterion carer payment applicant entitlement payment reviewed centrelink t14 15 involved completion mr cankulovska treating doctor health professional assessment form scored 5 5 point t14 completion mr cankulovski claimant questionnaire scored 49 5 point t19 carer payment carer allowance cancelled 20 february 2001 basis health professional assessment second health professional assessment obtained 28 february 2001 gave score 4 0 point decision cancel affirmed aro 23 march 2001 28 may 2001 ssat affirmed decision cancel carer payment carer allowance issue4 issue considered application whether decision cancel applicant carer payment carer allowance correct particular whether mr cankulovska sufficient score adult disability assessment tool adat health professional assessment provided dr sobol legislation5 legislation relevant issue issections 38c 198and954of thesocial security act 1991 theact adult disability assessment determination 1999 disability assessment determination 6 section 38cof theactprovides adult disability assessment tool38c 1 secretary may determination writing devise test assessing disability emotional state behaviour special care need person aged 16 b provide method rating person giving basis result test score accordance scale kind described subsection 2 38c 2 scale referred subsection 1 scale provides range score indicate different level physical intellectual psychiatric disability person 38c 3 determination thisact referred adult disability assessment tool 38c 4 determination disallowable instrument purpose section 46a theacts interpretation act 1901 7 disability assessment determination provides adat involve completion two questionnaire namely claimant questionnaire professional questionnaire latter completed treating health professional pursuant step 5 contained within schedule 2 rating method professional questionnaire score 12 minimum score permitted individual qualify payment carer allowance pursuant tosubsection 954 1 c theact step 5 requires score 10 professional questionnaire must achieved order applicant qualify carer payment pursuant tosubsection 198 2 theact 8 section 954of theactprovides relevantly qualification carer allowance caring disabled adult954 1 person qualified carer allowance disabled adult care receiver care receiver australian resident b care receiver family member person person approved writing secretary purpose paragraph c care receiver assessed rated given score le 30 adult disability assessment tool disability care receiver suffering care receiver receives care attention daily basis person person together another person private home residence person care receiver f person australian resident 9 section 198of theactprovides relevantly 198 qualification carer payment198 1 person qualified carer payment requirement section met constant care disabled etc persons198 2 person must personally provide constant care person person providing constant care disabled adult thecare receiver assessed rated given score least 25 adult disability assessment tool applicant evidence10 applicant confirmed information already given ssat summary wife hysterectomy colostomy ileostomy 1994 also high blood pressure requires medication experience dizziness make reluctant go near stove shower without husband assistance applicant wife need assistance change colostomy bag particularly diarrhoea difficulty tape sometimes wash skin around bag change clothes 11 addition applicant said wife condition deteriorated continues deteriorate said last four week wife hospital surgery wollongong hospital transferred westmead hospital another operation applicant unsure nature surgery wife said mr cankulovska referred surgery treating doctor dr sobol surgery return home cared applicant 12 applicant described wife totally dependent 13 applicant said dr sobol completed health professional assessment form mr cankulovska treating doctor approximately six year tribunal noted dr sobol mr cankulovska treating doctor ever since colostomy 1994 also noted mr cankulovski evidence ssat mr cankulovska see dr sobol approximately three time per month respondent evidence submissions14 m smith respondent told tribunal recently arranged social worker dapto office centrelink contact dr sobol view discussing apparent discrepancy assessment mr cankulovska care need mr cankulovski reporting particular noted dr sobol assessed mr cankulovska continent notwithstanding colostomy frequent difficulty diarrhoea respect m smith advised social worker attempt discus dr sobol issue interpretation tribunal note ssat highlighted matter decision 15 m smith suggested following discussion applicant would assisted centrelink make claim tribunal also noted applicant evidence recent week wife condition taken turn worse including need surgery could taken account assessment m smith advised tribunal late august early september 2001 dr sobol completed yet another health professional assessment gave applicant score 8 5 point 16 m smith drawing tribunal attention provision ofsections 38c 198and954of theact referred term ofpart 2 2of adult disability assessment determination 1999 particular paragraph three provides 3 secretary satisfied professional questionnaire accurate reflection person disability emotional state behaviour special care need secretary must ask replacement professional questionnaire completed another treating health professional t4 17 m smith drew tribunal attention obvious practical difficulty applicant obtaining questionnaire fromanothertreating health professional include dr sobol mr cankulovska treating doctor ever since colostomy 1994 also noted mr cankulovski evidence ssat mr cankulovska see dr sobol approximately three time per month tribunal noted applicant evidence dr sobol referred mr cankulovska surgery recently appears information available tribunal health professional best acquainted mr cankulovska condition need consideration18 tribunal find basis applicant evidence document lodged undersection 37of theadministrative appeal tribunal act mr cankulovska colostomy ileostomy 1994 also high blood pressure requires medication experience dizziness make reluctant go near stove shower without husband assistance need applicant assistance change colostomy bag particularly diarrhoea difficulty tape sometimes wash skin around bag change clothes condition deteriorated continues deteriorate last four week hospital surgery wollongong hospital transferred westmead hospital another operation dr sobol mr cankulovska treating doctor ever since colostomy 1994 see dr sobol approximately three time per month dr sobol completed two health professional assessment form yielding score 5 5 4 0 respectively 19 tribunal note discrepancy dr sobol assessment mr cankulovska care need applicant reporting care need satisfied dr sobol assessment accurate reflection mr canuklovska need say tribunal doubt way dr sobol interpreted term toilet use incontinence used form however range matter le open varying interpretation dr sobol also assessed level need variance reported applicant 20 given disability assessment determination requires minimum score health professional 10 carer allowance 12 carer payment applicant obtained score 5 5 qualify receive carer allowance carer payment decision review must therefore affirmed 21 tribunal conscious effort m smith assist applicant claim ensuring assistance centrelink social worker liaise dr sobol purpose obtaining accurate assessment possible tribunal also mindful recent deterioration mr cankulovska condition impact may applicant entitlement tribunal therefore encourages applicant avail assistance offered pursue right make claim carer allowance carer payment determination22 decision review affirmed certify 22 preceding paragraph true copy reason decision herein m n bellsigned raina savage associatedate hearing 17 december 2001date decision 21 december 2001advocate applicant selfsolicitor respondent m smith |
G Rocca Pty Ltd v Timetrex Pty Ltd (Building and Property) [2017] VCAT 261 (21 February 2017).txt | g rocca pty ltd v timetrex pty ltd building property 2017 vcat 261 21 february 2017 last updated 22 february 2017victorian civil administrative tribunalcivil divisionbuilding property listvcat reference bp288 2015catchwordsapplicant seek joinder section 60victorian civil administrative tribunal act 1998for joinder ofdirector first respondent whether applicant open arguable claim conduct relied director personal capacity joinder basis refused whether applicant open arguable claim director liable applicant accessorial liability provision thetrade practice act 1974and thefair trading act 1999 vic respect alleged conduct first respondent prior 1 november 2011 theaustralian consumer law vic respect alleged conduct 1 november 2011 joinder basis ordered applicantg rocca pty ltd acn 004 577 477 first respondenttimetrex pty ltd acn 006 586 223 second respondent second joined partybjp holding pty ltd acn 074 343 285 third respondent third joined partycgb consulting engineer pty ltd acn 059 161 205 fourth respondentjoseph mazza trading jm designsfifth respondentmario mazzafirst joined partybarry james parkwhere heldmelbournebeforea kincaid memberhearing typejoinder applicationdate hearing17 january 2017date order reasons21 february 2017citationg rocca pty ltd v timetrex pty ltd building property 2017 vcat 261orderpursuant tosection 60of thevictorian civil administrative tribunal act 1998 mr mario mazza unit 1 7 lindaway place tullamarine victoria 3043 joined fifth respondent proceeding applicant granted leave file serve amended point claim regard attached reason principal registrar directed fix proceeding direction event failed compulsory conference presently fixed 22 february 2017 solicitor first joined party must also notify tribunal email within 48 hour failed compulsory conference whether wish make application strike claim first joined party kincaidmemberappearances applicantmr cole counsel proposed fifth respondent m j johnston solicitor reasonsintroductionby building contract dated 16 june 2010 applicant first respondent building contract first respondent agreed undertake construction 3 unit land owned applicant woyna avenue rosebud west victoria applicant alleges proposed amended point claim dated 22 december 2016 ppoc terminated building contract letter dated 7 june 2013 consequent upon first respondent alleged repudiation obligation complete work 1 first respondent alleges applicant purport accept first respondent alleged repudiation 24 june 2015 2 applicant repudiated building contract accepted first respondent 3 part hearing datethe hearing proceeding started 10 october 2016 first respondent sole respondent hearing adjourned 12 october 2016 third day hearing purpose tribunal considering application first respondent recusal presiding member tribunal since reconstituted pursuant term tribunal order dated 19 october 2016 relief sought applicantdamages defective incomplete worksby ppoc applicant claim 144 288 59 damage allegedly defective incomplete work provides credit monies building contract unpaid date termination damage delayprior ppoc applicant also claimed first respondent sole respondent loss rental damage respect two unit 1 january 2011 alleged late completion work ppoc applicant seek loss rental damage respect 3 unit 1 january 2011 3 december 2016 continuing alleged late completion work claim 340 770 3 december 2016 applicant alleges obligation upon first respondent complete arose oral term building contract agreed around june 2010 director applicant mr rocca director first respondent mr mario mazza mr mazza proposed fifth respondent applicant alleges term front unit 3 unit would completed christmas 2010 2 unit completed end first quarter 2011 4 applicant also alleges ppoc supposedly alternative entered building contract reliance upon representation mr mazza 10 june 2010 3 unit would completed within ten month need completion date contract first representation 5 applicant say first representation two subsequent representation allegedly made mr mazza concerning completion date false misleading 6 representation would entered contract another builder case first representation terminated first respondent earlier case two subsequent representation interpose one issue hearing extent oral term representation made outside term building contract subject evidence detail inserted party time completion section building contract 7 agreed damage late completion section building contract appears scored party 8 relief sought first respondentunpaid variationsby defence counterclaim dated 14 september 2015 first respondent claim applicant 31 724 variation follows variationdescriptioncostextra concreteafter work commenced relevant authority required new level basis property flood zone resulted increase cost obtaining concrete 12 232 00pits material council requires installation pit shown construction drawing 5 905 00pits labour labour paid catania labour contractor 8 637 00additional tiling40m2to bathroom unit 1 4 950 00 31 724 00loss profitthe first respondent also claim loss profit 29 000 arising applicant alleged wrongful termination building contract amount due first respondent building contract varied le first respondent anticipated cost completion reimbursement monies advanced first respondentthe first respondent also seek reimbursement 9 700 payment allegedly paid first respondent third party applicant request party subsequently joinedas stated time adjournment hearing first respondent sole respondent time first respondent alleged way defence extent failed complete work 1 january 2011 date liability denied event alleged failure caused error construction drawing 9 prepared architectural draftsman fourth respondent b error engineering drawing 10 prepared consulting engineer third respondent c failure relevant building surveyor second respondent first joined party ensure drawing plan complied planning permit 11 since party sought join additional party proceeding joinder architectural draftsmanon application applicant direction hearing 16 december 2016 joined fourth respondent architectural draftsman proceeding applicant concedes engaged fourth respondent 12 joinder relevant building surveyorthe party dispute engaged relevant building surveyor bjp mr park direction hearing 24 november 2016 application first respondent ordered joinder bjp mr park joined party direction hearing 16 december 2016 applicant applied join bjp second respondent made order whether mr park remains party subject application behalf claim struck 13 joinder consulting engineerthe party also dispute engaged consulting engineer cgb direction hearing 24 november 2016 application first respondent ordered joinder cgb joined party direction hearing 16 december 2016 applicant applied join cgb third respondent made order also interpolate seems tolerably clear subject evidence third respondent engaged fourth respondent 14 joinder applicationthe applicant seek leave join mr mazza sole director first respondent fifth respondent seek two base first mr mazza personally liable conduct prior 1 november 2011 contravened section 7 9 thefair trading act 1999 vic fta repealed section 7 fta provided unconscionable conduct within meaning unwritten law 1 person must trade commerce engage conduct unconscionable within meaning unwritten law time time section 9 fta provided misleading deceptive conduct 1 person must trade commerce engage conduct misleading deceptive likely mislead deceive respect alleged conduct mr mazza personal capacity 1 november 2011 applicant relies similar provision theaustralian consumer law vic acl section 52 1 thetrade practice act 1974 cth tpa provided corporation shall trade commerce engage conduct misleading deceptive section 82of tpa provided 1 person suffers loss damage conduct another person done contravention provision ofpart ivaor v may recover amount loss damage action person person involved contravention second basis seeking leave join mr mazza extent prior 1 november 2011 first respondent contravenedsection 52of tpa mr mazza person involved contravention within meaning ofsection 82 1 tpa therefore party applicant may recover damage pursuant tosection 82of tpa 15 applicant also relies accessorial liability provision ftaand respect conduct 1 november 2011 section 18of acl joinder relevant principlesi accept tribunal power undersection 60of thevictorian civil administrative tribunal act 1998are wide section 60provides 1 tribunal may order person joined party proceeding tribunal considers person ought bound benefit order tribunal proceeding b person interest affected proceeding c reason desirable person joined party 2 tribunal may make order sub section 1 initiative application person considering application joinder proposed point claim filed tribunal must satisfied reveal open arguable case 16 respectfully adopt observation senior member lothian inwatson v richwall pty ltd 17 follows show open arguable case proposed joined party necessary plead fact law support successful case without proving fact demonstrate prima facie case nevertheless sufficient merely assert fact without demonstrating fact supported similarly decision inluo v reynson concept pty ltd 18 deputy president aird stated dispute contract entered reynson concept pty ltd whilst may work completed within 6 month commencement particular support allegation misleading deceptive conduct similarly particular relevance incorporation builder said work would carried diligently misleading deceptive enough make bald allegation must supported relevant particular although necessary set evidence applicant relies onjohnson matthey aust ltd v dascorp pty ltd 19 androot quality pty ltd v root control technology pty ltd 20 authority general proposition accept director may certain circumstance held personally liable joint tortfeasor respect wrong company director case applicant seeking join director basis personally liable respect conduct contravening relevant legislation addition whatever may found liability company director proposed pleading must distinguish conduct director capacity director conduct alleged personal capacity 21 relevant paragraph ppocit helpful set following extract ppoc agreement made 16 june 2010 first respondent agreed construct 3 unit theunits applicant property theworks sum 640 000 including gst thecontract particular detail recited written building contract applicant first respondent insofar oral comprised discussion mr p rocca behalf applicant mr mazza behalf first respondent around june 2010 mario mazzamisleading deceptive conducton 10 june 2010 mr mazza licenced builder sole director first respondent represented mr pat rocca behalf applicant first respondent would complete construction unit within ten month b need completion date contract thefirst representation january 2011 mr mazza represented mr pat rocca behalf applicant first respondent would complete construction unit christmas 2011 thesecond representation 7 february 2013 mr mazza represented mr pat rocca behalf applicant first respondent would complete construction unit within six week thethird representation first representation made orally rocca mr pattie rocca mr mazza home mr mr rocca second representation made orally rocca mazza office rocca third representation made rocca mr mazza writing comprising emailed letter dated 7 february 2013 22 copy possession solicitor applicant may inspected appointment first second third representation made mr mazza trade commerce 52 64 ppoc recites representation respect future matter within meaning applicable law false misleading applicant relied applicant suffered loss damage conduct mr mazza making first second third representation applicant entitled recover loss pursuant applicable law claim mr mazza personal capacitythe paragraph ppoc contain allegation support applicant claim mr mazza liable personal capacity respect claimed contravening conduct subsequent paragraph ppoc allege mr mazza thereby engaged conduct contravention ofsection 7 unconscionable conduct section 9 misleading deceptive conduct fta take 1 november 2011 conduct contravention ofsection 18 misleading deceptive conduct andsection 20 unconscionable conduct acl applicant claim loss damage mr mazza pursuant tosection 159of fta section 236 acl 23 principle company law individual director normally liable personally failing company director 24 something required many formulation various jurisdiction required director liable company wrongful conduct whichever formulation adopted nature participation breach must identified 25 applicant submits director company liable statutory provision referred assumed responsibility company act 26 expression come oft quoted passage inpioneer electronics australia pty ltd v lee 27 2000 fca 1926 2001 108 fcr 216 sundberg j said law personal liability director corporate tort uncertain state seem least four view judicial support director liable along company procured directed commit tort performing right society ltd v cyril theatrical syndicate ltd 1924 1 kb 1at 14 kalamazoo aust pty ltd v compact business system pty ltd 1985 84 flr 101at 127 martin engineering co v nicaro holding pty ltd 1991 100 alr 358 microsoft corp v auschina polaris pty ltd 1996 fca 1069 1996 142 alr 111 lott v jwb friend pty ltd 2000 sasc 3 henley arch pty ltd v clarendon home aust pty ltd 1998 41 ipr 443at 464 director liable made wrongful act distinct act company mentmore manufacturing co ltd v national merchandising manufacturing co inc 1978 89 dlr 3d 195 white horse distiller ltd v gregson associate ltd 1984 rpc 61at 91 king v milpurrurru 1996 136 alr 327at 346 351 director liable assumed responsibility company act trevor ivory ltd v anderson 1992 2 nzlr 517 director liable procuring company infringe right others said v butt 1920 3 kb 497 brien v dawson 1942 hca 8 1942 66 clr 18at 32 34 rutherford v poole 1953 viclawrp 23 1953 vlr 130 root quality pty ltd v root control technology pty ltd 2000 fca 980 emphasis added 28 intrevor ivory v anderson 29 appellant director one man company retained orchardist provide horticultural advice company director advised orchardist use particular herbicide destroyed orchardist crop orchardist sued company also sued director negligence alleging failed exercise reasonable care skill diligence advising use spray rejecting claim president court sir robin cooke said behoves court avoid imposing owner one man company personal duty care would erode limited liability separate identity principle associated name salomon lee viewing issue one assumption duty care cannot think reasonable say mr ivory assumed duty care plaintiff carrying business account company 30 case hardie boy j said agent general personally liable tortious act bowstead agency 15th ed 1985 p 490 one cannot conclude whenever company liability tort arises act omission director must either agent employee primarily liable company liable vicariously area negligence must always first determined existence duty care always inquiry matter fact degree balancing policy consideration policy area find difficulty imposition personal liability director appropriate circumstance make director liable personal negligence opinion run counter purpose effect incorporation essentially think test least includes whether assumption responsibility actual imputed appropriate test personal liability director employee basis upon director held liable infairline shipping corporation v adamson 1975 qb 180 see p 189 assumption responsibility virtually express may lie behind finding liability incentrepac partnership v foreign currency consultant ltd 1989 nzhc 54 1989 4 nzclc 64 940 assumption responsibility may well arise imputed director employee exercise particular control control particular operation activity inadler v dickson 1954 ewca civ 3 1955 1 qb 158 although issue arise pre trial decision different point law yuille v b b fishery leigh ltd 1958 2 lloyd rep 596is another illustration perhaps likely arise within large company clear allocation responsibility small one arose however case small company inmorton v douglas home ltd 1984 2 nzlr 548 593ff case made reference judgment inmorton namelycallaghan v robert ronayne ltd auckland 1112 76 17 september 1979 judgment speight j may present case would sufficient assumption responsibility mr ivory undertaken spraying necessary consider possibility emphasis added 31 applicant also relies statement principle principal authority victoria johnson mathey aust pty ltd v dascorp pty ltd or 32 case claim successfully made company purchased plaintiff gold thief proceeding also taken two director company found two director purchased gold primarily liable conversion nonetheless liable regard transaction either taken possession gold directed occur case one conversion value present purpose lie lengthy judgment redlich j exhaustively examined authority concerning liability tort director company paragraph 198 201 relied applicant honour said australia england director different position agent whilst binding principal may also liable tortious act defendant submission mr mr secchi cannot held liable conduct director act corporation expressed absolute term must rejected mean director become personally liable merely director unless procure direct tortious conduct law impose upon liability act agent employee whether director large corporation described one man company emphasis added applicant notwithstanding decision invite different conclusion direct procure test shown unsound remains standard determination director liability level involvement degree control director exercise determine whether said act directed procured director emphasis added applicant note decision relied applicant concerned allegedly tortious act number decision concerning whether director co extensively liable company director tortious act cited behalf applicant argument 33 applicant submits decision relied analogy making application join director ground personally liable conduct contravention fta acl conduct proscribed statute tortious character hand mr mazza submits open applicant application rely common law relating joinder director allegedly individual corporatetortfeasors agree submission behalf mr mazza liability respect misleading deceptive conduct unconscionable conduct arises relevant piece legislation question fact case contract company whether particular provided applicant sufficient make open arguable case company sole director personally liable whether solely together company contravening conduct alleged becomes clear review allegation ppoc recited distinguish conduct mr mazza capacity director first respondent personal capacity 34 applicant written submission contain available material said mr mazza personally liable claimed contravening conduct unsupported affidavit applicant argument follows level involvement degree control thejohnson mattheysense mr mazza absolute person made representation full knowledge thing necessary get construction started known long would take get house demolished building permit issued known long would take build unit known information plan specification builder entering major domestic building contract obligation regard including set construction period contract 35 however mr mazza close relationship mutual trust mr rocca filled contract omitting crucial part including construction period completion date mr mazza personally knowledge building surveyor needed appointed building permit obtained mr mazza also knew existing house demolished mr rocca evidence mr mazza agreed arrange demolition engage building survey apply building permit whist mr mazza denies question determined hearing notably also mr mazza knew attended roccas contract executed deposit paid intending travel overseas shortly company flew italy mr mazza personally although would reasonable assume fund trip may well come deposit paid mr rocca applicantmaintains virtue close relationshipbetween mr mazza mr rocca mr mazza ought found liable personally misleading deceptive conduct comprising promise made full knowledge roccas wanted able occupy first unit christmas holiday mr mazzarepeated personal assurance mr roccathat would see construction completed within certain timeframes occasion due largely personal conduct construction never completed respondent 36 submission properly incorporated particular ppoc would view sufficient make mr mazza personally liable contravening conduct view amount nothing proposition applicant trusted mr mazza nothing support proposition mr mazza made series personal assurance mr rocca behalf applicant find applicant failed matter contained ppoc demonstrate open arguable case mr mazza personally liable claimed conduct contravention various statute insofar paragraph 45 67 prayer relief seek proposed amendment disallowed claim mr mazza accessorial liability provision tpa acl applicant claim ppoc first respondent agent mr mazza engaged conduct breach ofsections 52 misleading deceptive conduct tpa take 1 november 2011 section 18of acl 37 given first respondent alleged contravention relevant provision tpa acl mr mazza alleged personally liable offending conduct accessorial liability provision fta repealed tpa acl 38 statutory provision claimant case applicant may recover amount loss damage action case claim first respondent person involved contravention 39 case claim mr mazza basis upon ppoc claim mr mazza said liable person involved contravention stated follows b mazza aided abetted first respondent contravention ii directly indirectly knowingly concerned party first respondent contravention 40 section 2of acl legislation upon applicant relies 41 provides involved mean person involved contravention provision schedule conduct constitutes contravention person hasaided abetted counselled procured contravention b induced whether threat promise otherwise contravention c way directly indirectly knowingly concerned party contravention conspired others effect contravention emphasis added seen applicant allegation paragraph 68 b ppoc claimed basis accessorial liability mr mazza taken definition applicant submits correctly view three alleged representation paragraph 45 47 ppoc future matter within meaning relevant piece legislation found applicant unable allege made mr mazza behalf first respondent respect representation future matter various piece legislation relied applicant effect representation including act case alleged commitment first respondent complete certain date deemed misleading unless case first respondent director mr mazza prof first respondent reasonable ground making representation 42 accepting purpose joinder representation future matter made whether fact made plainly matter hearing remains satisfied pleading open arguable first respondent reasonable ground making one three representation regard future matter therefore one relevant representation taken misleading b relevant test accessorial liability mr mazza alleged misleading deceptive conduct part first respondent satisfied regard whether first respondent reasonable ground alleged representation concerning future matter observe much material ppoc intended support conclusion contended applicant effect first respondent reasonable ground making alleged representation material appears particular paragraph 53 54 ppoc strictly reply material onus first upon first respondent adduce evidence reasonable ground 43 consider regard alleged misrepresentation future matter time first respondent adduces evidence reasonable ground making alleged representation open arguable first respondent reasonable ground regard claimed accessorial liability mr mazza held purpose definition involved legislation referred must shown person intentionally participated contravention knew fact constituting contravention 44 yorke v lucas 45 case involved misrepresentation corporate business agent turnover profit business induced sale agent escaped liability accessory agent aware figure incorrect pas vendor instruction also debate whether statutory provision place onus upon natural person mr mazza alleged knowingly concerned contravening conduct demonstrate presence reasonable ground 46 allegation made applicant particular paragraph 53 54 ppoc effect mr mazza aware various event occur connection proposed building work knew well knew reasonable basis making alleged representation completion date give rise accessorial liability mr mazza authority make clear order applicant establish liability mr mazza person involved contravention another require high standard proof knowledge authority suggest constructive knowledge consider allegation presently open arguable allowed stand particular mr mazza claimed knowledge need provided particular paragraph 68 ppoc make order attached kincaidmember 1 paragraph 15 ppoc 2 paragraph 15 applicant amended point claim dated 24 june 2015 3 see paragraph 13 e defence counterclaim dated 14 september 2015 4 paragraph 4 f ppoc difficult see breach alleged term give rise entitlement claim alleged delay 1 january 2011 respect 3 unit 5 see paragraph 45 ppoc note alleged content oral term building contract one hand alleged content first representation hand odds 6 given building contract entered june 2010 misleading deceptive conduct complained proscribed section 9 thefair trading act 1999 vic case representation said made proposed fifth respondent section 52 tpa respect representation said made first respondent 7 item 1 schedule 1 building contract page 6 building contract 8 item 9 schedule 1 building contract page 8 building contract 9 see particular paragraph 22 ppoc 10 see particular paragraph 37 ppoc 11 see particular paragraph 43 ppoc 12 see paragraph 19 ppoc 13 application await outcome compulsory conference presently set 22 february 2017 14 see chronological sequence event accompanying copy document filed third respondent 15 december 2016 material perhaps reached hand first respondent made joinder application 24 november 2016 15 see paragraph 68 69 ppoc 16 see zervos v perpetual nominee limited 2005 vsc 380 applied inperry v binios 2006 vcat 1604 watson v richwall 2014 vcat 1127at 28 17 see footnote 16 31 18 2009 vcat 890at 8 19 2003 vsc 291 20 2000 fca 980 21 seeperry v biniossupra fn 16 14 16 luo anor v reynson concept pty ltdsupra fn 18 22 note email relied document letterhead timetrex builder also describing mr mazza director first respondent signed mario mazza timetrex builder 23 see paragraph 65 67 ppoc damage also claimed tpa would seem inapplicable 24 salomon v saloman 1897 ac 92 25 seeyoung investment group pty ltd v mann 2012 fcafc 107at 58 26 see paragraph 30 applicant submission dated 16 december 2016 27 2000 fca 1926 2001 108 fcr 216 28 ibid page 233 29 1992 2 nzlr 517 summary taken fromkorfiatis v tremaine development pty ltd 2008 vcat 403per sm walker 29 30 30 ibid page 523 31 ibid page 527 32 2003 2004 9 vr 171 summary follows also taken fromkorfiatis v tremaine development pty ltd 2008 vcat 403per sm walker 23 33 referred applicant counsel topioneer electronics australia pty ltd v lee92001 2000 fca 1926 108 fcr 216 johnson matthey aust pty ltd v dascorp pty ltd or 2003 2004 9 vr 171 korfiatis v tremain develpments pty ltd or 2008 vcat 403 kierce v morris architect pty ltd or 2010 vcat 1740 young investment group pty ltd v mann 2012 fcafc 107andjr consulting drafting pty limited v cummings 2016 fcafc 20 34 seeperry v binios 2006 vcat 1604andluo anor v reynson 2009 vcat 890at 13 35 applicant submission dated 16 december 2016 42 36 applicant reply submission dated 17 january 2017 37 see paragraph 68 ppoc allegation made first respondent liable provision 51aa tpa unconscionable conduct section 20 acl unconscionable conduct account conduct mr mazza 38 see paragraph 68 b ppoc 39 see section 236 acl 40 see paragraph 68 b ppoc 41 see also section 75b tpa section 145 fta 42 see section 4 fta section 4 acl 43 see section 4 acl section 4 fta section 51a tpa 44 seeyorke v lucas 1985 hca 65 1985 158 clr 661at 667 668 quinlivan v accc 2004 fcafc 175 2004 atpr 42 010 see alsoaccessorial liability misleading deceptive conductby michael pearce qc 2006 80 alj 104 45 ibid 46 seeaccessorial liability thetrade practice actby conor bannon 2009 83 alj 407at 420 422 |
SZJAW v Minister for Immigration & Citizenship No 2 [2007] FCA 977 (4 June 2007).txt | szjaw v minister immigration citizenship 2 2007 fca 977 4 june 2007 last updated 5 july 2007federal court australiaszjaw v minister immigration citizenship 2 2007 fca 977szjaw v minister immigration citizenship anornsd205 2007emmett j4 june 2007sydneyin federal court australianew south wale district registrynsd205 2007between szjawapplicantand minister immigration citizenshipfirst respondentrefugee review tribunalsecond respondentjudge emmett jdate order 4 june 2007where made sydneythe court order 1 applicant pay cost proceeding note settlement entry order dealt order 36 federal court rule federal court australianew south wale district registrynsd205 2007between szjawapplicantand minister immigration citizenshipfirst respondentrefugee review tribunalsecond respondentjudge emmett jdate 4 june 2007place sydneyreasons judgment1 proceeding slightly chequered career 7 may 2007 reason gave ordered application extension time file notice appeal dismissed ordered applicant pay minister cost application however reason gave stayed order including 1 june 2007 directed matter listed direction 1 june 2007 purpose enable applicant advised move court rescission two order question obtained legal advice able persuade court utility permitting file notice appeal time 2 matter called friday applicant produced written submission raising new ground appeal submission raised ground ventilated primary judge draft notice appeal filed connection application extension time due fact minister solicitor opportunity considering applicant new submission otherwise committed course friday stood matter today order enable minister opportunity considering applicant written submission applicant indicated stage would able remain sydney engage argument today took objection course proposed therefore extended stay including today stood matter morning matter called morning appearance applicant 3 ground applicant seek ventilate tribunal failed ass particular element claim submission asserted applicant claimed member particular social group variously described citizen pakistan politician pakistan supporter political party pakistan uneducated supporter pakistan muslim league nawaz well political activist supporter pakistan political party supporter pakistan tribunal obligation deal claim 4 submission asserts applicant claimed member group upon return pakistan would exposed risk persecution lack state protection submission asserted claimed fear persecution upon return pakistan reason relating membership social group variously described however material tribunal evidence mere supporter pakistan muslim league faced real chance harm reason certainly material tribunal suggest person formed identifiable particular social group pakistan 5 tribunal rejected applicant assertion active member pakistan muslim league although prepared accept supporter however tribunal find applicant active way supporter tribunal rejected applicant claim basis number adverse credibility finding particular found voluntary return pakistan first visit australia 2005 consistent alleged fear persecution tribunal overall finding applicant lacked subjective fear persecution logically precludes present claim tribunal erred failing consider another possible basis fear persecution 6 tribunal fall jurisdictional error failing consider claim never made arise evidence tribunal additional ground raised prospect success appeal would therefore utility extending time appeal notwithstanding shortness delay circumstance would point treating presentation written submission application rescission order made 7 may 2007 accordingly propose take step confirm order made applicant pay cost proceeding certify preceding six 6 numbered paragraph true copy reason judgment herein honourable justice emmett associate dated 2 july 2007the applicant appear solicitor respondent australian government solicitordate hearing 4 june 2007date judgment 4 june 2007 |
Industrial Relations Commission Decision 1025_1994 [1994] AIRC 856;
(3 June 1994).txt | industrial relation commission decision 1025 1994 1994 airc 856 3 june 1994 industrial relation commission decision 1025 1994 s0335 dec 1025 94 print l3682 australian industrial relation commissionindustrial relation act 1988s 99notification industrial dispute australian rail tram bus industry union state rail authority new south wale c 20126 1994 state rail authority new south wale enterprise agreement 1992 odn c 20692 1990 print k7092 s0335 wage maintenance grade public transport industry commissioner shea melbourne 3 june 1994 hour work travel time evidence indicated past employee paid travelling time training arranged approved conducted employer duty entitling attachment entitlement performance duty training voluntary nature matter referred conference decision 4 february 1994 australian rail tram bus industry union ptu lodged notification alleged industrial dispute unders 99of act notification concern refusal state rail authority new south wale sra pay excess travelling time employee undertaking certain training matter heard initially 11 february proceeding adjourned enable discussion party gathering material hearing resumed 4 may request union commission proceeded hear evidence take submission matter dispute could determined ptu case union position summarised follows refusal sra pay excess travelling time union member participating linesman training course chullora award entitlement payment payment excess travelling time made past custom practice favour union distinction drawn sra voluntary attendance training course attendance employer direction open sra award integrated nature work training qualifies training question attendance duty sra case sra position summarised follows sra accepts award entitlement payment excess travelling time employee attending training course direction employer however training voluntary nature training employee secure promotion higher grade higher payment covered undertake duty clause award would unreasonable require sra pay excess travelling time circumstance voluntary training would unreasonable impost top cost training already provided sra position set may 1992 exhibit sra 1 whilst acknowledged timekeeper electrical division approved payment excess travelling time linesman course etc past malpractice step rest sra success union claim would horrendous cost implication sra consideration submission support argument ptu led evidence mr douglas c klineberg mr klineberg gave evidence experience others say familiar union contends experienced union delegate sub branch secretary mr klineberg position attest authority experience others receiving payment excess travelling time attendance training course selection procedure used lack notice certain course voluntary cross examining mr klineberg sra able confirm mr klineberg actually attended linesman general training course currently structured secured level job training passing exam mr klineberg evidence practice employee sra electrical branch receiving payment excess travelling time attendance linesman similar course chullora supported exhibit ptu 5 document ptu say prepared within sra compilation linesman related course conducted chullora 1988 1994 material exhibit ptu submits nineteen training course exhibit show conducted excess travelling time paid least participant eighteen course data available nineteenth course incomplete basis material ptu submits discharged onus demonstrate commission custom practice sra accept claim make payment linesman related training course consistent practice number year ptu argues award provision establishes entitlement payment excess travelling time attendance training course course conducted sra employee selected attendance attendance approved union take commission clause 10 1 ofpart 4of state rail authority new south wale enterprise agreement 1992 covering wage maintenance grade read employee required undertake duty temporarily location travel daily shall paid time spent travelling residence le travelling time would incurred enable shift undertaken home station award provision ptu argues extends type training contention proceeding union argues sra distinction course say continuing accreditation attended direction management course designed give employee qualification gain promotion attended voluntarily recent rationalisation management position also argues amount denial entitlement claim receive excess travelling time accordance award support position attendance linesman related course attract excess travelling time ptu relies particular construction award provision would see attendance training course coming within expression required undertake duty seeking demonstrate connection union relies well custom practice argument earlier proceeding commission union relies full bench decision print k2892 draw connection training consultation activity forming part person duty work union relies strongly decision commissioner nolan september 1992 print k4062 proposition payment excess travelling time attendance training course case guard refresher course issue raised sra case fact confirmed commission decision b commission made decision bind sra payment excess travelling time attending training course commission said employee shall treated equally respect attendance training course involves time training course travelling time shall rate 7 hour 36 minute per shift plus necessary travelling time taken travelling course finally union referred commission april 1991 national wage case decision print j4700 support argument essential link training structural efficiency work training integrated nature particularly context structural efficiency principle consistency wage fixing principle would party creating incentive disincentive participate training sra argument union based fairly simple contention award provision requires payment excess travelling time employee undertaking duty away home station sra argues seen requirement pay excess travelling time situation employee required sra attend course course voluntary designed benefit employee example mean gaining promotion higher grade sra case respect best summed direct quote mr larkins submission quite firmly take point view situation determine employee next turn duty attend training course attend work location excess travelling time arising entitlement simply employee desire attend accepts opportunity attend training course arising excess travel requirement behalf employee accept responsibility instance pay excess travelling time people making distinction training directed training discretionary voluntary sra directs commission notice circulated may 1992 exhibit sra 1 set distinction sra also contends approaching issue total exercise seeking correct malpractice occurred within electrical branch sra response ptu evidence practice payment excess travelling time respect linesman related training course sra submits area step practice area sra mr larkins provided exhibit based investigation exhibit sra 2 say show inconsistency apparent payment case subsequent withdrawal excess travelling time sra submits commission entertain union claim based sra see mistaken application policy timekeeping staff electrical branch would tail wagging dog sra submits requirement sra pay excess travelling time circumstance voluntary attendance training course would unfair imposition sense sra already conducting course benefit employee already incurring loss direct immediate productivity involved employee attendance training course sra fact put argument term training time working time employee really allowed leave attend training course conducted authority finally association argument sra submits would horrendous cost implication authority commission accept union position rule accordingly conclusion matter first commission 11 february 1994 commission told party matter seems one issue come construction might put existing award provision commission also said occasion circumstance appropriate look past practice see particular clause applied examine whether reason practice within framework award industrial merit party notice commission remarked received contradictory submission past practice relation payment excess travelling time employee attending training course would matter exercising commission mind subsequent submission evidence union dealt issue past practice relation linesman related course material support conclusion general acceptance responsible sra legitimacy claim payment excess travelling time attending linesman related training course chullora 1988 1994 material exhibit ptu 5 appears recent compilation sra record anomaly consistent pattern shown quite clear namely person attending kind course accepted entitlement payment excess travelling time taken together clear statement entitlement excess travelling time respect training equal treatment group within sra commissioner nolan decision print k4062 strong argument favour union position ptu also mounted persuasive case strong link established training work concept behind structural efficiency principle submission put forward union sra failed convince commission argument merit firstly custom practice sra position confusing uncertain obvious contradiction acceptance claim excess travelling time respect guard refresher course september 1991 exhibit ptu 1 sra preferred position november 1993 exhibit ptu 3 mr larkins correctly point latter document draft seem enunciate essence sra currently stated position also contradiction sra general position proceeding decision exhibit ptu 6 pay excess travelling time employee attending linesman training school chullora 15 april 1994 whilst distinction may word employee directed attend emphasis adequately explained sra spent considerable time 11 february 4 may advancing general proposition attendance linesman training course nature voluntary capable attracting excess travelling time within term award general issue practice past sra modified argument submit extent payment made past done malpractice within electrical branch influence commission cannot accept logic argument one thing say occasion individual might made error needed corrected constant pattern payment excess travelling time 1988 1994 person attending linesman related training cannot simply walked away passing malpractice significant number timekeeper sra audit 1992 subsequent direction may 1992 exhibit sra 1 clearly seen concerned changing practice place exhibit provided mr larkins exhibit sra 2 provide sufficient detail draw helpful conclusion invited example note attendance course identified exhibit voluntary course identified detailed exhibit seems provide documentary evidence sra sought case uniformly enforce currently stated policy provide substance support merit policy finally issue custom practice sra failed provide evidence support contention payment made past employee electrical branch sra odds practice applying throughout rest authority exhibit sra 2 helpful regard mr larkins informed commission certain material tender speak circumstance commission able find practice paying excess travelling time employee sra attendance training course secondly sra advanced satisfactory argument distinction seek make voluntary direction attendance training course commission approached consideration issue mindful agreement party reached freely entered 1992 heading vision state rail work culture agreement say party agreement share vision state rail work culture culture based employment practice ensure change managed consultation management union employee employee given satisfying work broad career path reward employee potential realised training development notion undertaking training clearly job related one mutual benefit clearly employee undertaking training benefit acquisition higher broader skill possibly opportunity apply skill challenging better paid position employer benefit highly skilled employee able take place apply skill responsibility achievement business objective employer light advancement made application structural efficiency principle seems quite unrealistic contending training conducted employer purpose employee become highly skilled advance next level skill matrix qualify undertaking duty connection work related training might term normal productive work closely integrated make distinction quite artificial provision training employer undertaking employee common benefit encouraged difficulty practical sense defining regarded voluntary training party proceeding agreed employee always accepted selection training course attended basis benefit situation employee declined training never tested prepared accept sra submission employee declined selection voluntary training would penalty imposed doubt really point important believe understand process applied understand evidence commission process seen one driven management management endorsement evidence process one whereby employee supervisor selects person attendance training employee released regular duty attend training specified duration training conducted employer conducted employer premise employee paid employer attend course understood concerned relationship job classification within particular segment sra presumably regarded service purpose calculation annual leave long service leave break continuity service regarded part parcel career path party given commitment reasonable employee assume attendance training course arranged employer approved employer conducted employer duty attract entitlement attend performance duty evidence disclose distinction sra seek make voluntary training training direction put employee term event discussed artificial distinction context training clearly joint benefit employer employee clearly job related arising consideration outlined commission convinced merit ptu argument union initially sought commission make recommendation employee immediately concerned entitled paid travelling time consistent provision award b commission commit writing view employee sra attending training course paid attend entitlement claim excess travelling time accordance award later proceeding ptu sought statement principle commission attendance training course cannot disentitle one payment excess travelling time accordance award award currently stand reached conclusion merit intend refer party conference expectation able come understanding based view commission expressed discussion produce agreement within reasonable time ptu required provide commission draft order effect establishing following attendance training course conducted sra attendance discretion management employee entitled normal pay whilst course shall treated undertaking duty employee shall entitled make claim payment excess travelling time claim dealt basis currently applying respect clause 10 1 state rail authority new south wale enterprise agreement 1992 see exhibit ptu 2 proceeding appearance thomas australian rail tram bus industry union b larkins state rail authority new south wale hearing detail 1994 sydney february 11 may 4 end text end text |
Commentary on Amendments to Bills [2010] AUSStaCSBAD 82 (10 March 2010).txt | commentary amendment bill 2010 ausstacsbad 82 10 march 2010 commentary amendment billseducation service overseas student amendment registration provider measure bill 2009commentary amendment billseducation service overseas student amendment registration provider measure bill 2009on 11 february 2010 house representative agreed one amendment disagreed two amendment made senate 22 february 2010 senate resolved insist two amendment made house representative disagreed amendment agreed fall within committee term reference health insurance amendment compliance bill 2009on 24 february 2010 house representative disagreed 10 amendment made senate made government amendment following debate changing commencement bill retrospective commencement 1 january 2010 commencement day bill receives royal assent supplementary memorandum correction explanatory memorandum also presented time bill introduced 2009 proposed commencement retrospective however original commencement clause referred specific date passed would retrospective effect act promulgated committee pleased note government taken step ensure retrospective commencement avoided |
Qian & Xue [2022] FedCFamC1A 93 (21 June 2022).txt | qian xue 2022 fedcfamc1a 93 21 june 2022 last updated 29 june 2022federal circuit family court australia division 1 appellate jurisdictionqian xue 2022 fedcfamc1a 93appeal xue qian 2021 fedcfamc2f 695appeal number naa 91 2021file number brc 11124 2019judgment aldridge jdate judgment 21 june 2022catchwords family law appeal application leave appeal appeal order required appellant pay sum money trust account solicitor respondent indemnity cost order interim freezing order appellant received sum money transferred majority family member freezing order exposed appellant risk punishment contempt event complied freezing order operate preserve status quo error law basis indemnity order upon success appeal leave appeal granted appeal allowed relevant order set aside respondent pay cost appellant fixed sum legislation family law act 1975 cth case cited blueseas investment pty ltd v mitchell mcgillivray 1999 flc 92 856 1999 famca 745cardile v led builder pty ltd 1999 198 clr 380 1999 hca 18deputy commissioner taxation v huang 2021 395 alr 616 2021 hca 43jackson v sterling industry ltd 1987 162 clr 612 1987 hca 23macedonian orthodox community church st petka inc v eminence petar diocesan bishop macedonian orthodox diocese australia new zealand 2008 237 clr 66 2008 hca 42medlow medlow 2016 flc 93 692 2016 famcafc 34metwally v university wollongong 1985 60 alr 68 1985 hca 28national australia bank ltd v bond brewing holding ltd 1991 vicrp 31 1991 1 vr 386suttor v gundowda pty ltd 1950 81 clr 418 1950 hca 35teo guan 2015 flc 93 653 2015 famcafc 94number paragraph 54date hearing 7 june 2022place sydney via video link counsel appellant mr hackettsolicitor appellant evans brandon family lawyerscounsel respondent mr alexandersolicitor respondent hey family lawordersnaa 91 2021brc 11124 2019federal circuit family court australiadivision 1 appellate jurisdictionbetween m qianappellantand mr xuerespondentorder made aldridge jdate order 21 june 2022the court order appellant granted leave appeal appeal allowed order 2 c order 5 made 22 november 2021 set aside appellant deposit sum 100 000 trust account w law firm held trust party disbursed without court order written agreement party respondent pay appellant cost fixed sum 5 436 56 note form order subject entry court record note copy court reason judgment may subject review remedy minor typographical grammatical error r 10 14 b federal circuit family court australia family law rule 2021 cth record variation order pursuant r 10 13federal circuit family court australia family law rule 2021 cth noted publication judgment court pseudonymqian xuehas approved pursuant tos 121 9 g thefamily law act 1975 cth reason judgmentamended pursuant r 10 14 b thefederal circuit family court australia division 1 rule 2021 cth 22 june 2022aldridge j introductionthis application leave appeal leave granted appeal order made judge federal circuit family court australia division 2 22 november 2021 required appellant m qian wife pay 850 000 trust account solicitor mr xue husband within seven day party engaged property settlement proceeding foot since late 2019 order part suite interim freezing order dealing proceeds shareholder dispute wife third party interest b pty ltd wife received sum 850 000 third party 30 august 2021 1 september 2021 transferred 735 000 brother sister father live china varying amount complete order event wife received settlement fund personally capacity director b pty ltd trustee x family trust wife said capacity shall restrained injunction hereby granted disbursing distributed otherwise dealing said fund forthwith provide full frank disclosure application fund received either partial final basis inclusive deposit slip receipt statement account andwithin 7 day today date wife pay trust account hey family lawyer sum 850 000 fund received hey family trust account held upon trust party disbursed without court order written agreement party although appeal widely drafted effectively order 2 c issue balance remaining wife hand held pending trial wife also appeal order 5 indemnity cost order required pay 18 476 husband leave appeal granted two order set aside following reason backgroundthe party met 2012 lived together short period 2013 party married late 2015 separated early september 2017 according husband early october 2017 according wife despite shortness relationship fact commencement neither party significant asset earned income great significance party managed acquire several property whilst subsisted often help relative husband evidence property town c purchased july 2018 1 050 000 registered wife name husband say wife sold property december 2018 friend father 800 000 without informing husband wife agreed property sold 800 000 transferred 667 00 sale proceeds parent repayment loan made prior marriage wife affidavit filed 20 november 2019 paragraph 9 v husband filed initiating application seeking property settlement order 16 september 2019 husband deposed became aware 17 august 2021 supreme court queensland proceeding shareholding b pty ltd resolved husband affidavit filed 24 august 2021 paragraph 4 result wife receive payment 850 000 wife solicitor asked confirm letter sent 19 august 2021 reply 24 august 2021 husband filed application case seeking urgent injunction restraining wife dealing proceeds action reason apparent application interim ex parte relief made circumstance would justification instead rather perplexingly application listed hearing 22 november 2021 hearing oral application made expand application include order return fund wife received 850 000 30 august 2021 next day withdrew 15 000 paid brother part repayment loan said payment occurred cheque deposit cleared 1 september 2021 20 000 withdrawn paid brother balance loan day wife withdrew 50 000 650 030 including 30 bank fee paid sister father respectively repayment loan father case 463 000 support business struggling result covid 19 suggestion deposit anything wife money payment breach either court order undertaking rather basis injunction sought disposition fund would put beyond jurisdiction court diminish property pool available distribution convenient commence ground 1 b shall deal question leave appeal required order interlocutory due course primary judge err making order payment 850 000 fund available wife time 117 000 ground 1 b clear enough accepted wife basis making freezing order fund still held wife money transferred wife brother sister father primary judge found return fund necessary protect property pool 7 time payment wife aware injunction sought husband application case 8 evidence wife required make payment 9 andthere evidence justified amount payment 10 12 led following conclusion satisfied making order refund sum 850 000 disbursed without consent husband order court order cannot complied adduces evidence suggest pressing need money paid evidence relative effect disbursed fund therefore position repay money matter take repayment money unfortunately approach consistent principle injackson v sterling industry ltd 1987 hca 23 1987 162 clr 612 deane j agreement mason cj wilson brennan dawson jj said 625 three related ground upon combined order susceptible attack first required appellant pay court money identified within possession money required provide obtain regardless source secondly go beyond mere order preservation asset pending judgment execution specifically required money paid court security thirdly failed identify either money paid registrar secure entitlement appellant anyone else relation paid put positive form appears order preservation asset go beyond simply restraining defendant disposing specific asset judgment must framed come within limit set purpose properly intended serve purpose create security plaintiff require defendant provide security condition allowed defend action introduce effect new vulnerability imprisonment debt rather alleged indebtedness requiring defendant duress threat imprisonment contempt court find money may may whether point time may available guarantee plaintiff judgment obtained satisfied prevent defendant disposing actual asset including claim expectancy frustrate process court depriving plaintiff fruit judgment obtained action may appropriate rare case order requires defendant actually deliver asset named person emphasis added freezing order operates preserve thestatus quoand change favour party seek order per gageler keane gordon gleeson jj indeputycommissioner taxation v huang 2021 hca 43 2021 395 alr 616at 29 emphasis added order made primary judge payment 850 000 exposed wife risk punishment contempt event complied indeed husband brought application deane j explained purpose freezing order maintain status quo improve security position applicant render respondent liable imprisonment debt order considered clear could complied example transferred fund account wife control follows opinion wife need adduce evidence show relative unable would return fund aside criticism wife failed adduce evidence somewhat unfair need arose day hearing application return fund first made also accepting application adjournment sought also accepted whilst may basis prevent fund transferred absent order court preventing wife free deal fund saw fit wife need order court permitting primary judge assumed wife could recall fund paid presumably satisfactory evidence establishing existence loan evidence example wife financial statement suggested none accepting follow sister brother father could repay fund may spent would may feel entitled retain fund person entitled deal asset see fit unless legal obligation preventing fact injunction could obtained preventing person transferring fund automatically lead proposition permissibly done must reacquire fund possibly held contempt succeeding deane j explained purpose freezing order husband submitted order 2 c freezing order principle apply opinion reading order 2 whole clearly sufficient dispose appeal allowed order 2 c set aside shall therefore deal briefly ground evidence court establish necessity order ground 1 recalled purpose freezing order ensure exercise court jurisdiction frustrated removal asset order minimum disturbance necessary cardile v led builder pty ltd 1999 198 clr 380at 124 wife submitted asset remaining australia enough meet appropriate claim husband particularly regard short marriage extensive assistance party parent counsel wife prepared balance sheet sought demonstrate net asset available division australia ranged 7 5 8 5 million however contentious document nothing like placed primary judge reason accord little weight point wife evidence three property hand bank mortgagee possession owed total 1 760 000 valuation conducted january 2020 gave combined value property 2 750 000 leaving significant surplus whether amount sufficient meet husband claim never explored importantly freezing order justified without exercise court jurisdiction would frustrated required consideration nature extent husband claim whether remaining asset sufficient meet basis order return fund force argument primary judge undertake consideration lost accepted issue raised honour inmacedonian orthodox community church st petka inc v eminence petar diocesan bishop macedonian orthodox diocese australia new zealand 2008 hca 42 2008 237 clr 66 gummow cj kirby hayne heydon jj said court invited make discretionary decision many factor may relevant incumbent party contend appeal attention given particular matter demonstrate primary judge attention drawn matter least unless fundamental obvious would therefore difficulty ground succeeding see alsometwally v university wollongong 1985 60 alr 68 suttor v gundowda pty ltd 1950 hca 35 1950 81 clr 418 effect absence usual undertaking damage ground 1 c may accepted generally speaking giving usual undertaking damage usual course obtaining interlocutory injunction national australia bank ltd v bond brewing holding ltd 1991 vicrp 31 1991 1 vr 386at 559 561 may leeway application thefamily law act 1975 cth blueseas investment pty ltd v mitchell mcgillivray 1999 famca 745 1999 flc 92 856 party legally represented undertaking damage neither proffered sought circumstance following word fromteo guan 2015 famcafc 94 2015 flc 93 653are apt first draw attention failure wife provide undertaking damage counsel husband conceded undertaking sought husband primary judge asked take account fact undertaking proffered consider concession fatal complaint blueseas investment pty ltd v mitchell mcgillivray 1999 famca 745 1999 flc 92 856at 46 57 ground succeed effect lack carve wife reasonable living expense legal cost ground 1 clear framing freezing order court may take account respondent need living expense legal cost permit continued payment difficulty wife seek order primary judge evidence need order point raised evidence could called point raised late ground fails remaining ground ground 2 3 ground 2 mirror image ground 1 dismissal wife response need consideration ground 3 raise indemnity cost order counsel party accepted order 2 c set aside basis making cost order set aside response application case wife proposed remaining proceeds supreme court queensland action 100 000 paid trust account solicitor disbursed without order court written agreement party understand payment occurred formalise matter appropriate order made conclusion costsit seen decision primary judge erroneous substantial injustice would result leave appeal refused paraphrasemedlow medlow 2016 flc 93 692 57 somewhat give effect finding leave appeal granted appeal successful counsel husband properly conceded cost order sought circumstance husband ordered pay wife cost fixed sum 5 436 56 certify preceding fifty four 54 numbered paragraph true copy reason judgment honourable justice aldridge associate dated 21 june 2022 |
National Auto Glass Supplies (Australia) Pty Limitedv Nielsen & Moller Autoglass (NSW) Pty Limited (No 6) [2007] FCA 570 (13 April 2007).txt | national auto glass supply australia pty limitedv nielsen moller autoglass nsw pty limited 6 2007 fca 570 13 april 2007 last updated 7 may 2007federal court australianational auto glass supply australia pty limited v nielsen moller autoglass nsw pty limited 6 2007 fca 570national auto glass supply australia pty limited acn 081 814 342 maggie yeung lo harvey hui ouyang v nielsen moller autoglass nsw pty limited acn 107 721 595 jack j moller carl mollernsd 2596 2005graham j13 april 2007sydneyin federal court australianew south wale district registrynsd 2596 2005between national auto glass supply australia pty limited acn 081 814 342first applicantmaggie yeung losecond applicantharvey hui ouyangthird applicantand nielsen moller autoglass nsw pty limited acn 107 721 595first respondentjack j mollersecond respondentcarl mollerthird respondentjudge graham jdate order 13 april 2007where made sydneythe court order 1 second respondent pay applicant cost second respondent application effectively occupied whole hearing time 1 00 pm today note settlement entry order dealt order 36 federal court rule federal court australianew south wale district registrynsd 2596 2005between national auto glass supply australia pty limited acn 081 814 342first applicantmaggie yeung losecond applicantharvey hui ouyangthird applicantand nielsen moller autoglass nsw pty limited acn 107 721 595first respondentjack j mollersecond respondentcarl mollerthird respondentjudge graham jdate 13 april 2007place sydneyreasons judgment1 presently court application cost made applicant respect proved successful application second respondent excused giving evidence case mentioned reason judgment application application unusual challenging one 2 result second respondent successful invited counsel applicant treat application one akin application vacate hearing date notwithstanding success uncommon find cost successful application ordered paid applicant rather unsuccessful respondent may resisted application 3 notice whatsoever given second respondent intended application today witness box december 2006 proceeding adjourned result episode affecting health hearing resumed yesterday second respondent appear pay court applicant courtesy informing intention relation future appearance announced appearance today informed court intend go witness box sought excused requirement would otherwise 4 clear case applicant protected relation cost application incurred certify preceding four 4 numbered paragraph true copy reason judgment herein honourable justice graham associate dated 20 april 2007counsel applicant littlemore qc henskenssolicitors applicant robert yip cothe first respondent appearthe second respondent appeared person withdrew hearing cost application third respondent appeared persondates hearing 4 5 6 7 8 11 12 13 14 december 2006 12 13 april 2007date judgment 13 april 2007 |
Paloma [2014] QBCCMCmr 213 (12 June 2014).txt | paloma 2014 qbccmcmr 213 12 june 2014 last updated 17 july 2014adjudicator orderoffice commissionerfor body corporate community managementcitation paloma 2014 qbccmcmr 213parties orknie pty ltd applicant body corporate respondent owner affected person scheme paloma ct 9524jurisdiction section 227 1 b and229 3 thebody corporate community management act 1997 qld act applying act thebody corporate community management standard module regulation 2008 standard module application 0215 2014decision date 12 june 2014decision schmidt adjudicatorcatchwords disentitlement right vote whether vote owner owed body corporate debt start meeting debt paid meeting adjourned valid standard module s 84 2 87 5 b ordersmade hereby orderthat application isdismissed reason decisionintroduction 1 application brought orknie pty ltd owner lot 11 body corporate disputing validity one vote motion 2 egm 3 march 2014 applicant alleges vote motion 2 counted owner owed body corporate debt start meeting 2 motion 2 proposed carrying extensive work building cost vicinity 1 million much proposed work address water penetration issue plagued building number year 8 may 2012 adjudicator underdown office made certain order 1 including following body corporate shall within two month date order engage suitably qualified person report state structure building make recommendation stop water ingres exterior brickwork applicant well member body corporate may anticipation engagement obtain quotation suitably qualified person quotation given body corporate manager within one month date order upon quotation obtained body corporate shall convene either committee meeting general meeting appropriate order choose engage suitably qualified person person engaged shall take instruction report chairperson time committee shall act majority vote committee chairperson time committee shall within two day receipt report forward copy report committee member unless previously advised committee member want individual copy within one month receipt expert report body corporate must obtain quotation remedial work proposed engineer presented general meeting recommendation report within three month receipt report 3 adjudicator miskinis note reason dismissing application interim order prevent motion 2 motion 4 6 considered egm 3 march 2014 2 since time body corporate engaged jeffrey hill associate pty ltd subsequently undertook inspection 12 october 2012 provided report containing various recommendation invited jeffrey hill associate pty ltd kavanaugh consulting engineer kce submit quote administer tender process egm 3 12 12 kce selected perform function work agreement sent kce 5 12 12 kce completed tender document three builder invited submit tender quote provided gerard flynn kline construction committee meeting 5 4 13 decided kce service terminated also decided third quote obtained contractor subsequent committee meeting 22 4 13 noted third quote received engineer determine scope work letter dated 25 7 13 body corporate chairman advised gerard flynn original scope altered include additional work however amended tender received readiness september 2013 agm new committee voted subsequent committee meeting 4 11 13 noted mr peter jones follow tender make sure quote specification 19 12 13 secretary wrote mr flynn correspondence altered original scope work include following rendering entire building repair balcony penthouse unit 9 duplicated penthouse unit 10 11 12 removal decorative roof tile associated flashing 4 motion 2 considered egm 3 march 2014 proposed undertaking work specified amended scope work selecting one two builder alternative engage batir cost 964 922 alternative b engage flynn cost 935 211 adjudicator miskinis reason dismissing application interim order commented follows relation motion 2 motion proposes body corporate proceed scope work settled committee per information attached provides acceptance one two tender alternative engage batir cost 964 922 alternative b engage flynn cost 935 211 attached meeting paper extensive schedule work undertaken work included original kce scope work fact disclosed owner perused minute committee meeting held 9 december 2013 tender document presented noted scope 98 complete also evident tenderers met committee 7 january 2014 scope work settled date committee noted possibility sealing around balcony door may responsibility individual owner however regard practicable excise component event would possible recover relatively small amount individual owner rendering external wall instead using sealing compound could involve making improvement proposed motion resolved special resolution committee say replacement waterproofing membrane balcony included following numerous complaint water leaking lower unit balcony upper unit form roof lower unit point time see real objection motion 2 proposed propose make requested interim order 5 sole question determination dispute whether vote cast owner lot 5 valid motion 2 egm correctly declared lost motion 2 would carried owner present meeting given opportunity selecting one two alternative also voting motion 3 proposed raising special levy fund work subject motion 2 overview 6 paloma 12 lot residential scheme located mermaid beach regulated thebody corporate community management standard module regulation 2008 standard module scheme created building unit plan subdivision 5681 procedure jurisdiction 7 satisfied matter fall within legislative dispute resolution provision 3 dispute lot owner body corporate section 276 1 act provides adjudicator may make order equitable circumstance resolve dispute context community title scheme claimed anticipated contravention act 8 commissioner invited owner committee make written submission regarding application submission received six owner three supported application three opposed statement also made body corporate manger stating committee supported application mr mccallum orknie pty ltd inspected submission made provided written reply 9 decided application based written material provided relevant material referred analysis 10 section 84 2 standard module provides follows person right exercise vote aparticular lot motion motion aresolution without dissent required choosing amember committee owner lot owes bodycorporate debt relation lot time meeting 11 question lot 5 owed body corporate debt start egm 3 march 2014 however alleged representative lot 5 know existence body corporate debt purporting exercise vote motion 1 egm 3 march 2014 representative claim received notification either contribution due unpaid time due upon becoming aware existence debt majority person present meeting agreed adjourn meeting allow owner lot 5 leave meeting obtain sufficient cash discharge debt done representative lot 5 purported vote remaining motion egm 12 question determined whether fact body corporate debt owed start meeting paid meeting disentitles relevant owner voting meeting relevant law 13 legislative provision general meeting adjourned apart requirement adjourn general meeting event quorum meeting present within 30 minute scheduled start time place day time next week 4 14 applicant made reference two decision alleges support case although fails explain 15 decision ofyallambee 5 adjudicator taylor made following comment relation adjournment general meeting law procedure meeting australia 6 joske say although normal course event meeting take decision adjournment chair may invested power decide adjourn certain circumstance chair seek comply rule regard adjournment endeavour secure vote motion adjournment meeting serious disorder may impossible follow process chair may exercise authority seems capacity quite restricted joske concludes adjournment circumstance must purpose forwarding facilitating meeting purpose interruption procrastination longer necessity case indicates longer chairperson considers reasonably necessary restoration order 7 reasonable expectation adjournment may specific period time another place particular reason provision body corporate consider procedural motion conduct meeting 8 may reasonable meeting consider motion adjournment circumstance adjournment resolve however provision general meeting adjourned whim chairperson inconvenient continue 16 rather supporting applicant case consider thatyallambeecould used authority proposition thatsection 87 5 b standard module could form legislative basis meeting passing motion adjournment circumstance adjournment resolve 17 applicant also referred decision oflido place 9 owner relevant unit admitted levy paid time agm excluding interest adjudicator held outstanding interest fell within definition body corporate debt penalty paying contribution due date accordingly adjudicator view owner relevant unit non financial member body corporate time agm therefore able vote agm 18 applicant explain relevance decision case reading fail see vote cast respect lot 5 ruled invalid 19 minute egm 3 march 2014 note following relation transpired meeting chairman noted determining vote motion 1 vote lot 5 could counted lot 5 owed debt body corporate time meeting advice sought aua point law representative aua advised correct representative lot 5 disputed lot 5 financial record produced showed levy due 01 01 2014 paid two 2 notice arrears sent correct address service owner present considered lot 5 able pay advice chairman meeting adjourned 20 minute enable lot 5 pay arrears cash chairman advised meeting decision could leave body corporate open legal challenge vote lot 5 counted around 10am meeting resumed 20 submission janadele stewart representative lot 5 state follows motion 1 voted declared passed chair michael mccallum raised issue levy arrears aware levy arrears would certainly taken action remedy prior meeting would definitely spent time travelling attending important egm unable vote michael mccallum advised meeting levy arrears 6 8 owner present voted allow pay levy cash warren thomson lot 3 stated allowed vote would vote motion 2 motion would failed regardless 21 aua claim sent m stewart reminder notice overdue levy 7 25 february 2014 unable provide confirmation email actually sent email 26 march 2014 m stewart aua state levy originally emailed 27 02 14 06 03 14 failed send please ignore due date payment made asap would greatly appreciated m stewart suggests perhaps happened alleged reminder notice 22 m stewart also asserts made request aua 17 february 2014 email information concerning unpaid levy responded 23 m stewart concludes submission follows believed paid levy receive reminder notice unpaid levy could would rectified prior egm known six eight owner present meeting voted allow time pay levy arrears vote chairperson declare vote order motion included either minute issued lot 3 would voted motion 2 allowed vote motion 2 would failed anyway 24 recorded minute meeting production two set minute suggesting minute somewhat controversial appears though owner present passed motion adjourn meeting allow representative lot 5 pay levy stated owed body corporate time occurred vote recorded lot 5 remainder motion considered meeting 25 m blair submits previous occasion body corporate agreed without objection grant permission owner pay outstanding levy time meeting 26 circumstance although disputed lot 5 owe body corporate debt start egm satisfied body corporate sent reminder notice lot 5 claimed m stewart specific request aua information unpaid levy prior meeting went unanswered majority present meeting agreed meeting adjourned allow m stewart opportunity pay unpaid levy respect lot 5 meeting adjourned period approximately 20 minute end lot 5 longer owed body corporate debt meeting thereafter resumed whence remaining business agenda completed lot 5 vote counted recordedi consider equitable order vote cast respect lot 5 ruled invalid accordingly dismissed application outstanding issue 27 dismissal application leaf body corporate precarious situation plan action respect undertaking work adjudicator previously found body corporate responsibility adjudicator found body corporate failed remediation work address long standing significant water penetration issue considered necessary adjudicator underdown made decision 8 may 2012 required owner presented quotation undertake remediation work within three month receiving report suitably qualified person state structure building recommendation stop water ingres exterior brickwork 28 m blair submits mr mccallum largely responsible making relatively straightforward task administering purely water ingres related order 1136 2012 complicated scope containing additional unrelated work imposed inclusion unrelated work state motion contentious polarising issue lot dissention occurred due perceived lack consultation prospect exorbitant premium 80 000 unit owner expected pay simpler transparent logical option present unrelated work unit owner separate motion continues reasonable believe motion strictly relating scope work required adjudicator underdown order 1136 2012 would easily passed 29 time test m blair theory body corporate must soon possible convene general meeting consider quote work deemed necessary adjudicator underdown undertaken body corporate fails within reasonably short period time owner scheme could commence enforcement proceeding body corporate breach adjudicator underdown decision 1136 2012 magistrate court may order appoint administrator authorise administrator perform obligation adjudicator order body corporate committee member committee owner occupier lot subject order 30 understand email dated 3 june 2014 secretary committee meeting held last week egm convened soon possible address outstanding issue conclusion 31 consider equitable rule vote cast respect lot 5 egm 3 march 2014 invalid accordingly interfere result voting motion 2 declared lost however dismissal application leaf body corporate necessary work becoming increasingly urgent order comply legislative responsibility respect maintenance also previous adjudicator decision body corporate must arrange undertake work necessary remedy water penetration issue forthwith 1 paloma 2012 qbccmcmr 204 2 paloma 2014 qbccmcmr 79 3 section 227 228 276andschedule 5act 4 see section 82 3 standard module 5 2013 qbccmcmr 343at 25 27 6 magner e lawbook co ninth edition 2001 7 joske p 41 8 see section 87 5 b standard module 9 2010 qbccmcmr 481 |
Pijetlovic, Katarina --- "European model of sport: alternative structures" [2018] ELECD 550; in Anderson, Jack; Parrish, Richard; Garcia, Borja (eds), "Research Handbook on EU Sports Law and Policy" (Edward Elgar Publishing, 2018) 326.txt | pijetlovic katarina european model sport alternative structure 2018 elecd 550 anderson jack parrish richard garcía borja ed research handbook eu sport law policy edward elgar publishing 2018 326book title research handbook eu sport law policyeditor anderson jack parrish richard garcía borjapublisher edward elgar publishingisbn 9781784719494section chapter 16section title european model sport alternative structuresauthor pijetlovic katarinanumber page 34abstract description forthcoming commission decision isu case expected leave important precedent alternative way organise european sport subject pyramid structure structure typically confers monopolistic position sport governing body enables conflation regulatory commercial function resulting potential foreclosure organisational market legality clause governing body rulebooks make impossible practice stage rival competition organise alternative league heart impending isu decision chapter critically analysis eu competition law jurisprudence applicable legal issue posed clause including isu meca medina dlg moto fia formula one euroleague basketball v fiba fiba europe fiba v euroleague commercial asset |
PGEU [2006] QIRComm 120; 183 QGIG 798 (17 October 2006).txt | pgeu 2006 qircomm 120 183 qgig 798 17 october 2006 last updated 17 november 2006 extract queensland government industrial gazette dated 27 october 2006 vol 183 13 page 798 802 queensland industrial relation commissionindustrial relation act 1999 613 declaration invalidity 615 order invaliditythe plumber gasfitters employee union australia queensland branch union employee rio 2006 88 vice president linnane17 october 2006decision 1 application jorgen gullestrup plumber gasfitters employee union australia queensland branch union employee pgeu seeking following relief declaration pursuant 613 theindustrial relation act 1999 act invalidity occurred management administration pgeu 2003 date reason fact election conducted branch committee management pgeu accordance registered rule pgeu declaration pursuant 613 act invalidity occurred management administration pgeu since date recent amendment rule pgeu registered 6 october 1966 including present time rule registered compliant act order rule pgeu set schedule 4 rule subject registrar certifying rule compliant act shall date order rule pgeu order branch committee management pgeu shall date order constituted person set schedule 2 shall treated branch committee management pgeu purpose branch committee management take office accordance rule pgeu order decision branch committee management branch secretary pgeu constituted prior date order may affected invalidity act matter thing rendered invalid remedied validated order various decision taken branch committee management 27 june 2006 may affected invalidity remedied validated 2 object application remedy invalidity occurred change effect invalidity validate act matter thing rendered invalid said invalidity 3 14 april 2000 industrial registrar granted exemption election member branch committee management pgeu notwithstanding requirement rule 49 4 registered rule pgeu election held branch committee management 2003 member elected 2000 purported continue office branch committee management 4 pgeu counterpart federal body within meaning act communication electrical electronic energy information postal plumbing allied service union australia cepu plumbing division queensland branch queensland branch cepu membership pgeu queensland branch cepu historically pgeu administered practical purpose queensland branch cepu organisation registered theworkplace relation act 1996 5 longstanding arrangement effect unwritten agreement state federal union commercial similar dealing union engaged state queensland transacted cepu thus pgeu creditor commercial business dealing anyone 6 part arrangement cepu pgeu sought payment due contribution member cepu would provide way employee industrial service required pgeu employee cepu treated joint employee 7 mr gullestrup branch secretary queensland branch cepu since july 2001 since time treated branch secretary pgeu rule pgeu place mr gullestrup commenced branch secretary pgeu since made aware rule organisation current form form since october 1966 therefore compliant provision act 8 upon realisation rule compliant provision act mr gullestrup made arrangement contemporary set rule prepared body purport branch committee pgeu resolved 27 june 2006 direct acting secretary take step may necessary contemporary set rule registered application made industrial registrar 12 september 2006 rio 2006 87 contemporary set rule registered pgeu rule industrial registrar advised contemporary set rule form register declaration invalidity made 9 mr gullestrup also view sufficient election conducted relation queensland branch cepu comprehend difference legislative arrangement pgeu queensland branch cepu mr gullestrup made application capacity long continuous standing member pgeu first joined union 1 august 1988 10 mr gullestrup also made arrangement application made industrial registrar exemption holding election rio 2006 89 application progressed application granted industrial registrar advised application order actioned invalidity order made 11 application seek rectify invalidity management administration pgeu mr gullestrup knowledge supported member purported branch committee management pgeu mr gullestrup opinion member membership generally pgeu strong desire ensure pgeu active continuing participant queensland industrial relation system 12 mr gullestrup state person suffer injustice commission make order sought application section 613 act provides follows 613 commission may decide 1 commission may application decide whether invalidity happened management administration organisation affair b election appointment officer organisation c making amending repealing rule organisation 2 deciding application commission may declare whether invalidity happened 13 failure part pgeu conducting election branch committee management pgeu 2003 invalidity management administration pgeu affair within term 613 1 act consider mr gullestrup person able make application 613 act virtue 614 b act therefore declare invalidity happened management administration pgeu 2003 date reason fact election conducted committee management accordance registered rule pgeu 14 declared invalidity happened 615 act deal order effect declaration section 615 act provides follows 615 order effect invalidity 1 section applies hearing application commission declares invalidity happened 2 commission may make order considers appropriate remedy invalidity cause remedied b change prevent cause change prevent effect invalidity c validate act matter thing made invalid invalidity 3 commission may also make another order consequential order subsection 2 4 commission must make order section order would cause substantial injustice organisation invalidity concern b member creditor organisation c person dealing dealt organisation 15 application advertised courier mail 22 september 2006 notifying public generally member pgeu particular application hearing date advertisement invited person interest matter contact industrial registrar person made contact industrial registrar response advertisement material would indicate substantial injustice would result order sought pgeu member creditor pgeu person dealing dealt pgeu relevant period 16 prevented making order 615 4 act 17 read application heard mr payne behalf pgeu make following order 1 branch committee management pgeu comprising b machin branch president battersby branch vice president j gullestrup branch secretary r crawford branch assistant secretary b carroll j halloran king branch organiser watt n lupton branch trustee p hartman j guilfoyle k duffin newlands e dursun branch committee management shall date order treated branch committee management pgeu purpose branch committee management take office accordance rule pgeu 2 decision branch committee management pgeu comprised b machin branch president battersby branch vice president j gullestrup branch secretary r crawford branch assistant secretary b carroll j halloran king branch organiser watt n lupton branch trustee p hartman j guilfoyle k duffin newlands e dursun branch committee management branch secretary j gullestrup may affected invalidity 2003 date remedied validated 3 decision branch committee management pgeu taken 27 june 2006 approve new set rule make application industrial registrar new set rule registered direct acting secretary make amendment proposed rule registrar may require ensure compliance theindustrial relation act 1999be remedied validated 4 application rio 2006 87 made industrial registrar 12 september 2006 seeking new set rule pgeu treated validly made pgeu 5 decision branch committee management pgeu taken 27 june 2006 direct acting secretary take step may necessary apply exemption election remedied validated 6 application rio 2006 89 made industrial registrar 18 september 2006 seeking exemption election pgeu treated validly made pgeu 7 decision branch committee management pgeu taken 27 june 2006 pgeu enter service agreement cepu respect queensland branch cepu remedied validated 8 decision branch committee management pgeu taken 27 june 2006 name registered organisation altered plumber gasfitters employee union queensland union employee remedied validated and9 application rio 2006 86 made industrial registrar 12 september 2006 seeking change name pgeu treated validly made pgeu 18 operative date declaration order 12 october 2006 order accordingly dated 16 october 2006 linnane vice president hearing detail 2006 11 octoberappearances mr j payne hall payne lawyer instructed mr j gullestrup plumber gasfitters employee union australia queensland branch union employee released 17 october 2006government printer queensland c state queensland 2006 |
R v Wells [2015] QCA 230 (17 November 2015).txt | r v well 2015 qca 230 17 november 2015 last updated 17 november 2015supreme court queenslandcitation r v well 2015 qca 230parties rvwells brian eric reginald appellant file ca 68 2014dc 33 2011division court appealproceeding appeal convictionoriginating court district court rockhampton unreported 12 march 2014delivered 17 november 2015delivered brisbanehearing date 31 march 2015judges holmes cj morrison ja dalton jseparate reason judgment member court concurring order madeorder appeal dismissed catchword criminal law appeal new trial verdict unreasonable insupportable regard evidence appeal dismissed appellant convicted jury raping complainant complainant friend influence alcohol marijuana gave partly inconsistent version event leading following rape family friend complainant influence alcohol painkiller gave evidence partly supported complainant version complainant mother consistently admitted poor recollection gave evidence partly supported complainant version complainant mother friend gave evidence complainant said offence pinned trampoline following offence complainant visibly upset jury position ass evidence witness light relevant inhibition time whether verdict unreasonable insupportable regard evidenceappeal new trial particular ground appeal misdirection non direction particular case appeal dismissed rape alleged occurred night appellant friend appellant house possible occasion raised evidence rape would occurred suggested complainant may confused occasion rape occurred whether trial judge erred failing direct jury satisfied rape occurred night complainant friend appellant houseevidence act1977 |
Zillow Inc. v. Felix-Hoffman Anne-Simone [2007] AUDND 8 (1 March 2007).txt | zillow inc v felix hoffman anne simone 2007 audnd 8 1 march 2007 wipo arbitration mediation centeradministrative panel decisionzillow inc v felix hoffman anne simonecase dau2006 00151 partiesthe complainant zillow inc seattle washington united state america represented griffith hack patent trade mark attorney australia respondent felix hoffman anne simone paddington new south wale australia 2 domain name registrarthe disputed domain nameis registered enetica pty ltd 3 procedural historythe complaint filed wipo arbitration mediation center center november 22 2006 november 23 2006 subsequently center transmitted email enetica pty ltd request registrar verification connection domain name issue december 7 2006 enetica pty ltd transmitted email center verification response confirming respondent listed registrant center verified complaint satisfied formal requirement au dispute resolution policy policy rule au dispute resolution policy rule wipo supplemental rule au dispute resolution policy supplemental rule accordance paragraph 4 rule center formally notified respondent complaint proceeding commenced december 8 2006 accordance paragraph 5 rule due date response december 28 2006 respondent submit response accordingly center subsequently notified respondent default january 10 2007 center appointed john swinson sole panelist matter february 12 2007 panel find properly constituted panel submitted statement acceptance declaration impartiality independence requested center ensure compliance rule paragraph 7 4 factual backgroundthe complainant operates online real estate service www zillow com service aim help consumer giving access kind information tool real estate agent broker would use website branded zillow com tag line edge real estate complainant launched beta website february 8 2006 prior complainant website www zillow com active used recruit staff business prior launch complainant service received significant publicity newspaper magazine united state launch february 8 2006 complainant service received publicity well known australian newspaper magazine complainant owns large number domain name include word zillow complainant owns number zillow related registered trade mark various country around world including registered trade mark australia zillow com registered effective september 28 2005 respondent registered disputed domain name february 2 2006 respondent resides sydney australia operates relocation service assist people moving sydney find place live currently website disputed domain name state construction show series photograph website virtually identical first page another website operated respondent www exclusiverelocation com complainant trade mark attorney firm wrote respondent february 2006 demanding transfer disputed domain name respondent solicitor responded rejecting demand suggesting respondent intended offer relocation service zillow name soon thereafter early march 2006 respondent filed australian trade mark application zillow application accepted registration currently opposed complainant issued registered trade mark address service trade mark application listed exclusive relocation address sydney 5 party contentionsa complainantthe complainant content complainant operating online real estate service since february 8 2006 provides consumer access type information tool used real estate professional determine property value service accessible via website domain name domain registered complainant september 16 2004 b date launch ofin february 2006 date submitting complaint complainant earned worldwide revenue amounting approximately u 4 000 000 good service bearing zillow com trademark c date launch ofin february 2006 date submitting complaint worldwide advertising public relation promotional expenditure good service bearing zillow com trademark amount approximately u 2 000 000 websitehas received 29 000 000 unique site visitor since launch 24 000 visitor australian ip address e complainant subject considerable medium attention prior shortly launch ofin february 2006 included report medium united state australia particular area respondent operated business f disputed domain nameis identical zillow com registered australian mark zillow com mark highly distinctive consumer would likely think association mark disputed domain name g respondent right legitimate interest disputed domain name respondent connection complainant licensed authorized use disputed domain name h respondent never commonly known zillow respondent registered business name zillow new south wale j respondent registered trademark right zillow mark date submission complaint k respondent making legitimate non commercial fair use disputed domain name intending operate existing business exclusive relocation name zillow l respondent engaging conduct misleading consumer diverting internet traffic away complainant website addition respondent exploiting publicity confusion amongst consumer association affiliation respondent complainant respondent registered us disputed domain name bad faith respondent aware publicity surrounding launch website february 2006 intended benefit respondent registered disputed domain name divert internet traffic away complainant disputed domain name n complainant mark acquired reputation within short period time many jurisdiction including australia respondent intentionally attracting internet user disputed domain name creating likelihood confusion complainant zillow com mark source sponsorship affiliation endorsement disputed domain name respondent never intended operate legitimate business disputed domain name registration designed obstruct complainant business b respondentthe respondent reply complainant contention 6 discussion findingsto succeed complaint complainant must demonstrate element enumerated paragraph 4 policy satisfied domain name dispute identical confusingly similar name trademark service mark complainant right ii respondent right legitimate interest respect domain name iii domain name registered subsequently used bad faith identical confusingly similarthe complainant established valid trademark right respect mark zillow com domain nameis identical zillow com except addition au well established insertion country code top level domain without legal significance determining identical confusingly similar domain name trademark seebt financial group pty ltd v basketball time pty ltdwipo case dau2004 0001 bayerische motoren werke g v bmwcar comwipo case d2002 0615 toyota jidosha kabushiki kaisha b toyota motor corporation v enterprise ltdwipo case d2000 0802 andtelstra corporation limited v nuclear marshmallowswipo case d2000 0003 accordingly panel find paragraph 4 policy satisfied b right legitimate intereststhe respondent opportunity respond present evidence chose complainant entitled relief simply default panel draw evidentiary inference failure respond seesupre pty ltd v paul kingwipo case dau2004 0006 panel considered available evidence determine respondent lack right legitimate interest disputed domain name evidence show respondent used disputed domain name name corresponding disputed domain name connection abona fideoffering good service respondent established corporation australia includes zillow name registered state business name relating zillow evidence respondent made preparation use intention using disputed domain name respondent applied register australian trade mark zillow however application made shortly complainant wrote respondent putting notice complainant right demanding transfer disputed domain name accordingly respondent cannot assert notice subject matter dispute made demonstrable preparation use disputed domain name name corresponding domain name see paragraph 4 c policy panel concludes respondent right legitimate interest respect disputed domain name accordingly reason panel find complainant satisfied element 4 ii policy c registered subsequently used bad faithin accordance paragraph 4 iii policy complainant must prove disputed domain name registered subsequently used bad faith paragraph 4 b policy list four example may regarded registration use domain name bad faith example exhaustive factor addition set paragraph 4 b may also presented evidence respondent bad faith evidence difficult determine exact reason respondent registered disputed domain name complainant well researched clearly written complaint suggested number theory explained theory probable one possibility coincidence respondent registered disputed domain name six day prior beta launch complainant service number reason seems unlikely name zillow unusual highly distinctive complainant service received significant medium exposure prior launch would made across pacific ocean australia respondent real estate business appears focus attracting client outside australia highly likely respondent aware complainant service prior february 2 2006 decided register disputed domain name order prevent complainant reflecting zillow com mark corresponding domain name australia disrupt business activity complainant stated complaint zillow com trade mark highly distinctive would unlikely coincidence indeed respondent happened independently devise distinctive trade mark use domain name service relating real estate time overwhelming medium attention complainant business complainant well known operator online real estate service provides consumer information tool finding real estate mostly united state america consumer agent list home sale site 10 000 real estate agent listing complainant complainant submitted evidence worldwide recognition zillow com recognition mark australia reflected level activity website australian visitor addition complainant submitted extensive evidence international medium attention date respondent registration disputed domain name respondent trademark application zillow short unlikely respondent independently devised disputed domain name accordingly panel find disputed domain name registered bad faith respondent complainant satisfied paragraph 4 iii policy 7 decisionfor foregoing reason accordance paragraph 4 policy panel order domain namebe transferred complainant john swinsonsole panelistdated march 1 2007 |
Melton v Metro Trains Pty Ltd & Ors [2021] VSC 450 (2 August 2021).txt | melton v metro train pty ltd or 2021 vsc 450 2 august 2021 last updated 2 august 2021in supreme court victorianot restrictedat melbournecommon law divisionjudicial review appeal list eci 2020 01537lewis meltonplaintiffvmetro train pty ltdfirst defendantassociate professor peter gibbon convenor medical panel second defendantmedical panel constituted associate professor miron goldwasser dr alan andrewsthird defendant judge quigley jwhere held melbournedate hearing 20 april 2021date judgment 2 august 2021case may cited melton v metro train pty ltd orsmedium neutral citation 2021 vsc 450 judicial review review decision medical panel part vba thewrongs act 1958 vic ama guide evaluation permanent impairment whether medical panel disclosed path reasoning duty medical panel make inquiry held medical panel erred remittal differently constituted medical panel wingfoot australia partner pty ltd anor v kocak or 2013 hca 43 2013 252 clr 480applied chang v neill 2019 vsca 151applied minister immigration citizenship v sziai 2009 hca 39considered wei v minister immigration border protection 2015 hca 51 2015 257 clr 22considered appearance counselsolicitorsfor plaintiffms simone baileyarnold thomas beckerfor defendantms roslyn kayehwl ebsworth lawyersher honour background1 plaintiff mr lewis melton injured right leg knee falling uneven ground rosanna railway station 13 may 2017 x ray taken austin hospital confirmed mr melton suffered comminuted spiral fracture proximal right fibula oblique fracture lower right tibial shaft surgery undertaken treat tibial fracture 2 mr melton commenced county court proceeding metro train pty ltd damage economic non economic loss pursuant thewrongs act 1958 vic act common law 3 receive compensation non economic loss act person must assessed suffered significant injury 1 injury deemed significant degree whole person impairment resulting injury meet threshold level 2 act defines relevant threshold level impairment 5 per cent 3 act also defines impairment permanent impairment 4 4 mr douglas gardiner orthopaedic surgeon assessed mr melton line ama guide evaluation permanent impairment 4thedition guide mr gardiner provided certificate impairment considered mr melton impairment level 10 per cent mr gardiner noted painful scarring front right knee preventing kneeling restricting squatting due sensitivity limitation performance employment daily living constant avoidance padding area required class 2 impairment 5 5 6 september 2019 plaintiff served first defendant certificate impairment pursuant tos 28lnaof thewrongs actand accompanying report mr gardiner 6 subsequently first defendant referred mr melton medical panel assessment leg injury scarring 6 mr melton assessed panel comprised orthopaedic surgeon professor miron goldwasser general practitioner dr alan andrew 14 january 2020 panel concluded although mr melton physical impairment permanent 7 level impairment meet threshold 8 clinical note panel member taken assessment indicate mr melton assessed impairment level 4 per cent zero per cent impairment attributed scarring 9 7 mr melton seek judicial review panel decision impairment contending decision quashed remitted differently constituted panel ground plaintiff8 oral ground plaintiff evolved put forward written material final ground characterised follows panel erred duty apply chapter 13 guide failing apportion impairment scarring b panel failed take account relevant consideration namely limitation mr melton daily activity caused scarring 9 set ground response detail turn first apposite consider relevant section guide closely guides10 chapter 13 guide titled skin chapter 13 5 titled scar skin graft table 2 chapter 13 5 outline class impairment applicable skin disorder 11 class 1 cover impairment 0 9 per cent applies sign symptom skin disorder present intermittently present andthere limitation limitation performance offewactivities daily living although exposure certain chemical physical agent might increase limitation temporarily andnotreatment intermittent treatment required original emphasis 12 class 2 cover impairment 10 24 per cent applies sign symptom skin disorder present intermittently present andthere limitation performance ofsomeof activity daily living andintermittent constant treatment may required original emphasis 13 table continues class 5 class 3 4 5 describing severe skin disorder relevant plaintiff 14 following additional guidance included beneath table 2 sign symptom disorder class 1 2 may intermittent present time examination impact skin disorder daily activity primary consideration determining class impairment frequency intensity sign symptom frequency complexity medical treatment guide selection appropriate impairment percentage estimate within class first ground15 respect first ground plaintiff argued inconsistency clinical note panel reason final determination particular plaintiff pointed clinical note referred mr melton scarring related symptom tenderness pin needle 10 declined apportion impairment 16 response first defendant urged court view reason panel primary justification determination rather clinical note first defendant suggested pin needle according panel reason could attributed dysfunction sural nerve infrapatellar branch saphenous nerve rather scarring accepted would mean inconsistency panel reason final determination 17 similar argument submitted relation tenderness evident around site injury specifically first defendant observed panel reason refer tenderness suggest cause tenderness scarring 11 second grounddid panel inquire plaintiff daily activity 18 second ground plaintiff drew attention mr gardiner conclusion mr melton scar led constant avoidance aspect daily living 19 plaintiff noted panel made explicit reference number daily activity including squatting walking driving however time panel made specific reference impact scarring context kneeling suggested indicates panel give due consideration full impact scarring mr melton daily activity 12 20 plaintiff pointed panel recorded mr melton ongoing capacity self care independence submitted quite separate inquiry whether scarring impact daily living point note according guide self care one aspect daily living consider evaluation impairment guide also list physical activity travel social recreational activity among others example daily living 13 21 first defendant argued panel fact inquire nature mr melton daily activity scarring occurred event transpired hearing impacted evidence point 22 affidavit 20 november 2020 plaintiff deposed panel ask whether scar symptomatic required treatment limited daily activity hearing plaintiff corrected affidavit note panel fact ask scar cross examination mr melton conceded memory assessment hazy 14 23 query plaintiff affidavit testimony given good faith must note discrepancy statement apportioning weight evidence 24 first defendant pointed discrepancy argue panel deficient duty consider relevant consideration including scarring first defendant also highlighted section panel reason sub heading scar claimant said right lower extremity scar asymptomatic require treatment restrict daily activity 15 symptom related scarring25 already stated panel noted pin needle symptom related mr melton scarring apportion impairment 26 plaintiff observed panel assessed mr melton close threshold level attributed zero per cent impairment scarring plaintiff submitted panel decision attribute impairment scarring material error even minor attribution scarring would elevated mr melton threshold level 27 first defendant cautioned speculating closer analysis plaintiff tenderness pin needle might impacted panel final determination argued even panel error first defendant disputed material error determination28 reason follow ground one allowed ground two would fail determination first ground29 find panel erred duty apply chapter 13 guide 30 first defendant referred oft cited principle reviewing decision medical panel one must apply overzealous approach hold reason standard judicial decision 16 31 moreover judicial review appropriate consider evidence afresh rather task review process undertaken panel determine whether jurisdictional error error law apparent consistent approach first defendant argued accept panel discretion determine plaintiff threshold impairment 17 32 said reason medical panel must disclose actual process reasoning formed conclusion 18 stated conclusion mr melton scar rise defined level permanent impairment 33 panel turn mind mr melton scar example panel member examined scar site noted length observed soft mobile non tender palpation 19 34 nevertheless find panel reason make plain sufficiently analysed scar light guide instance immediately table 2 chapter 13 5 guide following tendency scar disfigure considered evaluating whether impairment due scar permanent another consideration whether scar changed made le visible concealed 35 recording size location scar akin considering whether may impact mr melton daily activity likewise panel explain position concerning disfigurement linked scar 36 accept panel recorded plaintiff comment assessment scar limit daily activity difficulty plaintiff overcoming concession course reasonable indeed necessary panel form view based evidence provided 37 however instance panel may positive duty inquire view present case one instance role medical panel duty inquire38 role medical panel different court tribunal exist adjudicate arbitrate party rather function form opinion based expertise 20 regard merely passive body limited material submitted rather empowered make inquiry 21 panel member examined mr melton injury confirms 39 given circumstance medical panel duty bound make certain inquiry failure amount jurisdictional error high court australia put failure make obvious inquiry critical fact existence easily ascertained could circumstance supply sufficient link outcome constitute constructive failure exercise jurisdiction 22 40 authority arose circumstance visa applicant invited hearing respond allegation application forged similar circumstance arose university failed confirm enrolment student status determinative student visa application 23 latter case majority gageler keane jj found decision tainted university breached duty update enrolment record nettle j found university failure confirm student enrolment status amounted jurisdictional error 41 authority make clear jurisdictional error may occur decision made without reference crucial piece information circumstance information readily available view authority bear present case 42 note plaintiff comment assessment entirely consistent example panel reason indicate mr melton scar asymptomatic also record plaintiff comment experience intermittent pin needle region tibial fracture site anterior aspect knee 43 consider critical panel better inform full extent impact scarring mr melton daily activity including whether related symptom merited impairment rating respect panel reason confirm fact undertake process 44 panel failure amount jurisdictional error evince adequate process reasoning sustain determination attribute zero per cent impairment plaintiff scarring 45 face inconsistency recorded panel described paragraph 42 sufficient rely entirely comment plaintiff scar asymptomatic 46 first defendant submitted looking reason pin needle could attributed dysfunction sural saphenous nerve view sufficient clarity panel reason form view determination second ground47 allowed first ground appeal unnecessary rule second ground nonetheless court record following 48 plaintiff second ground effectively submitted natural justice point panel failed take account relevant consideration mr melton would denied fair hearing 49 mentioned mr melton confirmed hearing asked scarring impact daily activity contrast affidavit 20 november 2020 50 moreover section panel reason produced paragraph 24 telling plaintiff submit mr melton misrepresented difficulty accepting plaintiff denied fair hearing given opportunity discus scarring 51 panel reason make numerous brief mention scar 24 persuaded panel denied mr melton natural justice therefore second ground would fail remittal differently constituted medical panel52 first defendant submitted minded quash decision panel remitted panel member referred tovegco pty ltd v gibbon 25 kyrou j held good reason must proffered justify remitting differently constituted panel primary consideration whether would appear unfair successful party decision made decision maker 53 plaintiff position written submission decision remitted differently constituted medical panel argument expanded upon 54 direct decision remitted differently constituted medical panel note submission first defendant guidance provided kyrou j however formed view remittal panel would risk unfairness plaintiff circumstance panel member briefly considered declined apportion impairment mr melton scar found constitute error law consider preferable newly constituted medical panel ass claim form orders55 make order nature ofcertiorariquashing certificate opinion panel dated 29 january 2020 matter referred differently constituted medical panel considered determined accordance law 56 direct party make short submission writing relation cost 1 wrong act 1958 vic 28le wrong act 2 ibids 28lf 3 ibids 28lb definition threshold level para 4 ibid definition impairment 5 letter douglas gardiner arnold thomas becker filed inmelton v metro train pty ltd or eci 2020 01537 5 june 2019 4 letter mr gardiner guide class 1 impairment 0 9 impairment class 2 impairment 10 24 impairment 6 pursuant topart vbaof thewrongs act n 1 7 medical panel reason determination filed inmelton v metro train pty ltd or eci 2020 01537 29 january 2020 7 reason determination 8 medical panel certificate determination filed inmelton v metro train pty ltd or eci 2020 01537 29 january 2020 1 9 transcript proceeding melton v metro train pty ltd or supreme court victoria eci 2020 01537 justice quigley 20 april 2021 4 5 m bailey transcript proceeding 10 ibid 5 m bailey 11 ibid 31 m kaye 12 ibid 13 14 m bailey 13 american medical association guide evaluation permanent impairment american medical association 4thed 1993 317 14 transcript proceeding n 9 23 15 reason determination n 7 4 16 wingfoot australia partner pty ltd anor v kocak or 2013 hca 43 2013 252 clr 480 56 wingfoot 17 transcript proceeding n 9 32 m kaye 18 wingfoot n 16 65 19 reason determination n 7 4 20 wingfoot n 16 47 21 chang v neill 2019 vsca 151 51 22 minister immigration citizenship v sziai 2009 hca 39 25 french cj gummow hayne crennan kiefel bell jj 23 wei v minister immigration border protection 2015 hca 51 2015 257 clr 22 24 reason determination n 7 4 25 2008 vsc 363 33 |
Meade v Queensland Ambulance Service [1996] QSC 62 (24 April 1996).txt | meade v queensland ambulance service 1996 qsc 62 24 april 1996 last updated 22 march 1999in supreme courtof queenslandbrisbaneno 1414 1995before hon justice white meade v queensland ambulance service graham christopher meadeplaintiffand queensland ambulance servicedefendantreasons judgment white jjudgment delivered 24 04 1996catchwords review taxation cost four similar chamber summons solicitor counsel respondent plaintiff four bill cost apportionment approach r v hore ex parte brisbane city councilcounsel mr p dwyer applicantmr p gorman respondentsolicitors crown solicitor applicantwatts company respondenthearing date 19 april 1996in supreme courtof queenslandbrisbaneno 1414 1995 meade v queensland ambulance service graham christopher meadeplaintiffand queensland ambulance servicedefendantreasons judgment white jjudgment delivered 24 04 1996this application review taxation carried taxing officer court respect bill cost pursuant 92 r 119 rule objection taken great number item bill taxing officer answered objection allowing small number declining bulk review item objection disallowed sought application review three bill almost identical brought time taxed taxing officer considered taxing subject bill need considered application backgroundon 4 august 1995 four supreme court writ summons filed brisbane registry writ numbered 1414 1415 1416 1417 1995 writ queensland ambulance service service named defendant solicitor record plaintiff watt company endorsement writ damage personal injury caused negligence breach contract breach statutory duty service arising incident occurring 1992 subsequently writ served service worker compensation board queensland 9 august 1995 14 august 1995 crown solicitor received facsimile transmission copy writ worker compensation board following day crown solicitor received copy writ service crown solicitor instructed service enter appearance behalf respect writ due administrative matter within office crown solicitor action taken file 22 august 1995 entry appearance respect matter filed supreme court registry two hour earlier solicitor plaintiff obtained judgment respect action default appearance service damage assessed first crown solicitor knew judgment article appeared courier mail monday 28 august 1995 search court file revealed indeed occurred letter dated 28 august 1995 plaintiff solicitor wrote service including copy default judgment action sought identity service solicitor arrangement could made assessment damage crown solicitor wrote immediately watt company indicating acted behalf service action enclosed entry appearance way service notified watt company service proposed apply supreme court action seeking order setting aside interlocutory judgment together cost crown solicitor quoted extract courier mail article stated four officer shaun clark graham meade john brotton michael jerez judgment default worker compensation board insures qas failed respond writ judgment expected set aside board defend qas crown solicitor asked light comment plaintiff solicitor would prepared consent order setting aside judgment solicitor plaintiff disposed consent setting aside interlocutory judgment believing subsequent affidavit revealed commissioner service made admission liability radio interview summons set aside regularly entered judgment supporting material respect four judgment served upon watt company 30 august 1995 summons heard helman j chamber 11 september 1995 informed bar table hearing application occupied approximately one hour strenuously opposed statement claim filed support judgment default appearance alleged service failed provide safe system work wilful malicious unfair improper conduct service caused plaintiff suffer stress related illness unfit continue working service honour ordered interlocutory judgment entered plaintiff service 22 august 1995 set aside service pay cost incidental plaintiff application taxed bill delivered watt company taxable form crown solicitor 11 october 1995 following amount meade v queensland ambulance service 3 569 96 jerez v queensland ambulance service 2 908 49 clark v queensland ambulance service 2 932 31 brotton v queensland ambulance service 3 471 56that total 12 882 90 appointment made taxation bill taxationmr gorman counsel appeared chamber summons appeared behalf four plaintiff taxation solicitor office crown solicitor appeared behalf service 3 january 1996 prior commencement taxation taxing officer discussed conduct agreed bill respect writ 1414 1995 themeadewrit would taxed day bill adjourned commencement taxation taxing officer advised would apportion cost allowed four matter taxing officer taxed allowed themeadebill 2 220 57 allowed 14 day objection filed 17 january 1996 22 march 1996 taxing officer answered objection allowed small number taxed 40 47 amount bill allowed 2 173 57 bill contains notation cost common action 1414 1995 1415 1995 1416 1995 1417 1995 cost apportioned service submits whilst taxing officer apportioned item four bill others inconsistency approach thus revealed mr dwyer service prepared schedule challenged item showing item number bill challenged item writ 1414 1995 shall append schedule reason principle taxationboth party indeed taxing officer accept overall principle applied circumstance solicitor counsel act two application heard together involving substantially issue may derived fromr v hore ex parte brisbane city council 1969 qd r 75particularly p 91 hoare j hanger stable jj agreed said p 91 number appeal involving precisely point early agreement heard together would quite unrealistic allow full fee brief appeal comparable solicitor cost depending particular circumstance case respect fee brief refresher think normal full fee allowed separate appeal hand think usually would equally incorrect allow total fee amount appropriate one appeal generally speaking depending circumstance would appear appropriate moderate increase made proper fee one appeal apportionment total among appeal would think quite justified seems similar approach would correct one relevant item solicitor cost reflects view oliver law cost 1960 pp 67 110 recognised victorian practice different prevailing new south wale practice apportion see alsoboguslawski v gdynia ameryka linie 2 1951 2kb 328 earlier decision inoppenshaw v whitehead 1854 engr 125 1854 9 ex 384that two action fought substantially ground two plaintiff attorney entitled charge two different attorney employed doubted seems clear consequence approach inhorethat necessary action application consolidated one run test case apportionment occur horereflects practical rather formal sense double charging matter general principle mentioned perusal document mean simply looking perusal document mean consideration content comparison affidavit document number identical affidavit document therefore perusal betts v cleaver 1872 lr 7 ch 513 oliver op cit 214 neither solicitor charge perusing document drawn solicitor richards v watt 1866 1 qscr 143at p 145 per cockle cj drawing application mind preparation document actual writing marsland 1890 4 qlj 3 implies composing writing document include part document merely copy another document oliver pp 206 7 hard fast rule counsel fee settling affidavit document allowed unless matter complexity evidentiary difficulty straight forward case solicitor purport practise jurisdiction ought require assistance counsel settle affidavit see example oliver pp 111 3 item charge care consideration generally intended recompense solicitor work covered specific item includes skill knowledge care responsibility involved must something specific charge claimed turn specific item item 21this relates telephone call journalist newspaper radio station relating admission allegedly made commissioner service done ascertain plaintiff could hold position defence allegation quantum issue taxing officer allowed claim apportioned four action whilst matter practical commonsense one would conclude transcript dr fitzgerald said radio would regarded admission liability pursuant 36 r 5 nonetheless allowance item seem involve wrong principle amount unreasonable item 22 73 80these item relate obtaining transcript taped interview preservation tape observation apply item 21 item 29this item charge perusal defendant summons set aside judgment bill seek apportion taxing officer however allowed total amount charged noting amount charged respect summons concluded even allowance made simply comparing examining four summons summons three folio total claim 16 80 reasonable approach apportionment ought taken quick glance three summons would sufficient see reduction ought made item 31this relates perusal affidavit support summons 13 folio bill cost charge separately perusing affidavit four apparently identical save heading 18 20 claimed bill ordinary allowance perusal document length taxing officer concluded similarity affidavit unreasonable allow full charge respect view additional work handling considering three document accept allowance additional work taxing officer doubled usual fee divided four making allowance 9 10 view reasonable double cost perusal one half time cost divided four would maximum item 33that item relates perusal affidavit support summons six folio amount charged 8 40 bill usual charge item taxing officer approached way item 29 basis relatively small amount multiply four unreasonable opinion unreasonable approach item way approach item 31 set taken item 34again item related examining exhibit affidavit approach item 33 occurred item 36that item related perusing affidavit case taxing officer allowed half basis item 31 reason given respect item 31 think unreasonable make generous allowance item 37this item concerned examining exhibit affidavit total amount allowed basis item 29 namely reasonable sum accept reasonable approach set respect item 29 item 62this item photocopying affidavit service counsel brief nine folio application set aside judgment regularly entered suggestion correspondence issue taken respect service irregularity unnecessary brief counsel four application affidavit service line instruction counsel would sufficed ought allowed item 64this item relates photocopying statement claim counsel brief statement claim filed respect judgment required rule reasonable counsel briefed statement claim taxing officer correct allowing item item 67 68this item concerned drawing brief counsel six folio respect application taxing officer objection taxed amount reference apportionment four application served supporting material solicitor plaintiff course objection solicitor keeping four separate file plaintiff would unusual seems however four separate brief counsel result unnecessary expense document different action course included counsel brief summons supporting affidavit except heading judgment moderation needed exercised incurring cost view four brief allowed reduction ought occurred upon taxation item 76this item enquiry plaintiff solicitor ascertain number legal officer crown solicitor employ brisbane respond explanation failure put entry appearance action plaintiff solicitor pointed sole practitioner employed solicitor able work whilst might felt indignation big organisation crown solicitor office could overlook important matter filing entry appearance nonetheless seem particularly sensible way seeking persuade court administrative arrangement within crown solicitor office led failure would good reason setting aside judgment ground alone nonetheless seem unreasonable exercise taxing officer discretion allow amount apportioned would suggest amount could looked 4 15 charged allowed respect bill cost one letter would written item 82 96these item concern plaintiff solicitor affidavit response material filed defendant notice objection apparently effect application made service onus plaintiff simply attended made submission filed responsive material taxing officer concluded reasonable plaintiff reply way affidavit concluded four folio unnecessarily included properly submission page taxed cost reduced accommodate affidavit four matter 22 folio charged bill 101 20 amount 80 50 allowed agree taxing officer affidavit responsive application inappropriate however since taxing 20 seem sufficient title page backing sheet exhibit would extra work greater reduction ought therefore occurred item 86counsel apparently charged 1 000 settle solicitor affidavit amount 250 allocated four bill cost taxing officer concluded excessive apportioned four action although note allocating 250 bill fact apportioned taxing officer reduced fee 480 settling four identical affidavit apportioned equally four action degree anxiety briefing counsel settle straight forward affidavit response application set aside regularly entered judgment cannot conclude however unnecessary unreasonable would incline view even 480 excessive settle document without complexity matter needed covered evidentiary issue counsel opinion might well sought could reduced item 100this item relates telephone call counsel advising filing service affidavit arrangement hearing day apportioned across four bill 2 65 taxing officer approach bearing mind alternative available plaintiff solicitor reasonable item 102this item relates counsel fee brief expressed bill apportioned must occurred since counsel charged 1 250 themeadebrief 625 brief total amount 3 000 taxing officer allowed 1 900 apportioned four bill amount 775 clear taxing officer apportioned accordance principle enunciated inr v hore could consistently fixed reasonable fee one application added something reflect four application substantially allow nil fee brief three application taxed taxing officer note hearing occupied hour pleading different action needed considered whilst defence service claim matter chamber judge needed satisfied distinction four action liability application kind require detailed analysis statement claim taxing officer noted answer objection application great importance plaintiff argument noted success service would mean full action would run behalf plaintiff whilst amount 1 900 relatively straight forward application might amount would allow cannot conclude taxing officer discretion miscarried extent ought reviewed regularly made aware counsel charge supreme court chamber application applies knowledge think submitted upper scale district court chamber application great assistance item 106this item related attendance registry collect sealed copy order taxing officer reconsidered matter concluded reason one attendance would necessary collect four order charged separately reduced item 16 60 12 45 since note order kept folder counter readily available difficult understand amount 12 45 apportioned attributable file allowed seems excessive apportionment vicinity 20 whole attendance item 109this item care consideration total claim four action 1 200 reduced taxation 950 apportioned four matter taxing officer concluded serious matter plaintiff excessive reliance upon counsel plaintiff rightly concern merit defence plaintiff solicitor meet allegation critical firm failure give prior warning intention obtain default judgment either matter professional courtesy ethical conduct would matter concern solicitor appropriate answer taxing officer described item recompense solicitor work done unable specifically claimed elsewhere bill note includes skill knowledge care responsibility research consideration option course conduct also gathered well commercial profit element incorporates anxiety factor involving co ordinating preparing instructing hearing view amount charged care consideration even taxed 950 seems high one look balance bill use made counsel settle material failure select practical sense relevant document brief however item reduced cannot concluded amount allowed unreasonable item 110this item relates drawing bill cost taxing officer noted degree duplication four bill taxing officer allowed bill inmeadeat 23 folio lieu 47 claimed taking account item taxed bill allowed additional 23 folio respect additional work involved drawing three bill apportioned final amount four action basis disturbing approach item 111this relates engrossing bill twenty three folio allowed taxing officer four bill must separately printed basis disturbing amount item 112this item photocopying bill serve reduced 8 folio taxation 13 reduction seems required item 119 121these item allowed part attention need given conclusionwhile solicitor plaintiff respondent could delivered one bill four application nothing compelled generally taxing officer approached taxation correct principle although instance apportion ought occurred result total amount across four bill higher ought particular sum often relatively small amount principle ought nonetheless applied review exercise discretion whilst might different view item nonetheless cannot concluded taxing officer discretion miscarried number item urged applicant four bill delivered nearly 13 000 far difficult complex chamber application might suggest blame high cost civil litigation rest system costing system devised document copied hand necessarily number system appear appropriate era governed photocopier laser printer word processor applicant successful number item larger item contested although expressed different view hearing bear cost application reflection concluded respondent ought pay two third applicant taxed cost incidental application review order taxing officer review taxation bill cost herein accordance reason order respondent pay two third applicant cost incidental application review taxed respondent granted indemnity certificate pursuant 15 theappeals cost fund act1973 respect order review |
Instruments raising significant scrutiny concerns [2021] AUSStaCSDLM 74 (12 May 2021).txt | instrument raising significant scrutiny concern 2021 ausstacsdlm 74 12 may 2021 chapter 1instruments raising significant scrutiny concernschapter 1instruments raising significant scrutiny concerns1 1 chapter detail instrument raise significant scrutiny concern relation committee seeking information relevant minister committee concluded examination 1 2 necessary committee may place notice motion disallow instrument contained chapter emphasise scrutiny concern provide senate additional time consider instrument benefit committee comment accordingly appropriate chapter also detail committee reason withdrawing notice motion disallow instrument 1 3 committee currently seeking resolve outstanding scrutiny concern correspondence relevant minister agency copy relevant correspondence available committee website 1 1 seewww aph gov au senate_sdlc |
Dampier Salt (Operations) Pty Ltd and Collector of Customs [1994] AATA 273 (15 September 1994).txt | dampier salt operation pty ltd collector custom 1994 aata 273 15 september 1994 administrative appeal tribunaldampier salt operation pty ltd v collector customsno w92 159aat 9734number page 11customs excisecourtadministrative appeal tribunalgeneral administrative divisiont e barnett senior member hotop senior member k j taylor member catchwordscustoms excise diesel fuel rebate applicant engaged production common salt mean evaporation salt harvested washed dumped wet salt stockpile salt later transported road dry salt stockpile applicant port site shipping whether applicant operation subsequent dumping salt wet salt stockpile constitute mining operation whether dressing beneficiation mineral integral part operation recovery whether operation connected dressing beneficiation carried place adjacent thereto whether part production common salt mean evaporation word phrase mining recovery beneficiation connected adjacent production administrative appeal tribunal act 1975s 37customs act 1901s 164excise act 1901s 78aleslie salt collector custom unreported decision 8697 28april 1993 commissioner taxation v jax tyre pty ltd 1984 5 fcr 257mcnichol v pinch 1906 2 kb 352federal commissioner taxation v jack zinader pty ltd 1949 hca 42 1949 78 clr 336commissioner taxation cth v ici australia limited 1972 hca 75 1972 127 clr 529abbott point bulk coal pty ltd v collector custom 1992 fca 181 1992 35 fcr 371state rail authority new south wale v collector custom 1991 33fcr 211hearingperth 13 14 april 199415 9 1994solicitor applicant mr sweidanmr k corke custom appeared respondentorderthe decision review affirmed decisiont e barnett hotop application dampier salt operation pty ltd applicant review decision delegate collector custom respondent dated 17 june 1992 rejected applicant claim rebate duty paid respect diesel fuel purchased use salt production operation dampier lake mcleod western australia 2 hearing applicant represented mr sweidan solicitor respondent represented mr k corke australian custom service tribunal document lodged pursuant tos 37of theadministrative appeal tribunal act 1975and following exhibit exhibit a1 applicant statement fact contention andletter dated 11 april 1994 exhibit a2 admission respondent exhibit a3 statement graeme john lewis exhibit a4 statement rodney della vedova exhibit a5 salt quality chart exhibit a6 comparable deposition rate chart exhibit a7 salt quality chart b exhibit a8 saxa table salt container exhibit a9 curriculum vitae dr brian warren logan andexhibit r1 statement dr james avraamides oral evidence given mr lewis mr della vedova dr avraamides anddr logan 3 eligibility rebate duty paid respect diesel fuel governed 164 thecustoms act 1901 theact 78a theexcise act 1901 former section relevantly provides 164 1 rebate subject subsection 2 3 suchconditions restriction prescribed payable person whopurchases diesel fuel use mining operation otherwise purpose propelling aroad vehicle public road 7 section mineral mean mineral form whether solid liquid gaseousand whether organic inorganic mining operation mean exploration prospecting mining mineral b dressing beneficiation mining site elsewhere ofminerals ore bearing mineral integral part operation fortheir recovery includes c operation connected exploration prospecting miningfor mineral carried place adjacent areain exploration prospecting mining occurs ca operation connected dressing beneficiation ofminerals ore bearing mineral dressing beneficiationis integral part operation recovery mineral orof ore operation carried placeadjacent area dressing beneficiation occurs mineral ore bearing mineral dressed orbeneficiated place mining site integral partof operation recovery transporting mineral orores mining site place dressed orbeneficiated e liquefying natural gas f natural gas liquefied place mining site transporting natural gas mining site place g production common salt mean evaporation section 78a 1 theexcise actis term assection 164 1 theactand section 78a 7 theexcise actprovides 7 section mining operation primary production residential premise road vehicle use respectivemeanings section 164 thecustoms act 1901 4 applicant filed two volume statement fact 11 march 1994 respondent agreed content fifteen paragraph applicant statement fact course hearing respondent indicated agreement two paragraph namely paragraph 28 page 8 paragraph 10 page 11 5 considered material u heard evidence accept fact agreed party make finding accordingly finding two paragraph still dispute apparent reason decision follow 6 enable reason readily understood convenient give simple description applicant salt production operation process dampier lake mcleod site process simplification produce apparent inaccuracy inconsistency formal finding fact mentioned formal finding intended u prevail factual finding upon decision based brief outline operationsdampier 7 dampier site salt water pumped diesel motor sea pond zero begin process evaporation pumped series large pre concentration pond eventually pumped crystallisers salt deposited crystallises journey brine arrival sea water pond zero deposit salt crystallisers take approximately three month lake mcleod 8 lake mcleod initial stage process different dampier process commenced pumping sea water ocean bottom lake mcleod sub surface brine aquifer rich sodium chloride covered halite layer contains approximately 700 million cubic metre saturated brine collection ditch 6 5 kilometre long 4 metre deep cut halite layer brine pumped diesel powered pump rate 90 cubic metre per minute collection ditch continuously refill rapid speed pumping deposited transport channel 8 kilometre long take treatment plant chemical added pumped directly crystallisers salt crystallises deposited water evaporates manner dampier operation 9 salt deposited crystallisers surface water evaporated operation site purpose application salt harvested diesel driven harvester move across salt field crystallisers cutting salt elevating onto road train drive slowly alongside harvester road train transport salt raised grid salt dumped fall grid large lump broken fall onto conveyer belt carry salt beneath nozzle spurt fresh water wash away dirt impurity may collected settling evaporating process harvesting conveyor belt deposit washed salt saturated water onto elevator moving arm spread salt top wet stockpile measure length approximately 1 kilometre 10 time product harvested crystallisers common salt sodium chloride chemical property salt crystalliser vary various impurity concentrate different stage crystallisation process instance first stage crystalliser calcium second third stage crystallisers magnesium also crystalliser fine salt crystal higher calcium content tend accumulate around edge way product handled washing designed part evenly distribute different batch different crystallisers ensure homogeneous product product spread layer upon layer wet stockpile continuous analysis chemical quality product made recorded computer profile pile exists used guide bulldozer loader work pile break crust form surface blend salt required order achieve homogeneous product computerised knowledge wet stockpile analysis also used guide loader selecting part pile load onto road train eventually transport product 15 kilometre dampier 23 kilometre lake mcleod dry stockpile wharf salt may remain wet stockpile two three month occasionally worked way throughout time process draining evaporation also occurs remove impurity alters calcium magnesium balance bringing salt within contract specification typical specification 11 contract specification typical specification two important salt quality measure customer applicant consider entering salt purchase contract contract specification specifies maximum limit specific impurity content customer commercially operationally accept typical specification typical sodium chloride impurity moisture content range salt produced applicant used marketing tool differentiate applicant salt supplier typical specification describe salt higher grade acceptable minimum standard described contract specification 12 operation wet stockpile location following purpose spreading salt laterally blending purpose b caving pile promote vertical blending layer salt c breaking crust promote evaporation loading salt onto road train transportation portfacility e reducing water content andf reducing level impurity 13 part continuing process front end loader load road train salt taken different part wet stockpile driven port site dumped grizzly bar onto conveyor belt elevates onto dry stockpile passing elevator dry stockpile sample taken subjected analysis form basis computer record sample processed result fed computer print indicates whether product elevated onto dry stockpile within typical specification product within typical specification fact relayed person charge loading wet stockpile loading operation next day varied blend closer within typical specification obtained loaded onto road train eventually fed onto dry stockpile 14 salt fall elevator onto smaller dry stockpile bulldozer working top pile push salt elevator edge pile make room salt dropped onto pile well blend salt ship loading bulldozer push salt grizzly bar onto conveyor belt carry salt beneath electric magnet remove remaining tramp metal may present wharf loaded onto ship final chemical moisture analysis also made point check whether salt within contract typical specification 15 respondent agreed diesel fuel used dampier lake mcleod operation including time salt lifted dropped onto wet stockpile fall within provision paragraph g definition mining operation 164 7 theact production common salt mean evaporation respondent therefore paid rebate diesel fuel used operation pumping sea water pond zero washing salt dumping wet stockpile fact respondent also paid rebate diesel fuel used operation top wet stockpile fuel used loading wet stockpile onto road train transport product dry stockpile 16 behalf applicant mr sweiden contends common salt applicant producing higher grade salt applicant contractually bound produce customer bulk seaborne traded salt market product yet produced recovered time harvesting produced result continuing process drainage evaporation occurs period approximately three month stand wet stockpile still continuing stand dry stockpile operation stockpile designed contribute blending process break crust form surface pile saleable product bulk seaborne traded salt market must homogeneous common salt sodium chloride moisture chemical content within typical specification therefore submits rebate payable diesel fuel used salt loaded onto ship operation part continuing process producing common salt applicant seeking recover sell sense argues could said process mining defined theact still continuing even product dry stockpile properly described mining must beneficiation within meaning paragraph b least argues operation constitute purpose paragraph ca statutory definition mining operation operation connected beneficiation integral part recovery mineral common salt still recovered form saleable product process desired chemical change still occurring argument decision nature mineral recovered applicant vital crude common salt harvested crystallisers later refined product 17 submission paragraph b c ca mr sweidan confront decision leslie salt collector custom unreported decision 8697 28 april 1993 decided paragraph g definition mining operation 164 7 theactstands alone paragraph b c ca application production common salt mean evaporation sub surface mining operation involved mr sweiden submits point leslie salt wrongly decided support submission point party agree operation lake mcleod evidence fall within paragraph statutory definition mining operation involves recovery mineral beneath ground pumping say respondent submission paragraph g definition must stand alone beneficiation rebateable operation production common salt would lead absurd result diesel fuel used operation wet stockpile lake mcleod would rebateable fuel purchased purpose mining whereas fuel used operation dampier would rebateable 18 even applicant succeeds establishing diesel fuel used operation connected mining beneficiation integral part recovery common salt still necessary pursuant paragraph c ca statutory definition mining operation applicant establish operation occurring place adjacent area mining beneficiation occurs 19 question adjacency mr sweiden submits leslie salt wrongly decided tribunal found port site 8 kilometre away wet stockpile area place adjacent area pointed beneficial nature legislation vastness distance involved mining operation western australia also sought distinguish leslie salt part journey case public road whereas case operation port site mining leasehold contiguous lease journey public road 20 mr corke respondent submits operation beyond wet stockpile stage beneficiation merely blending product purpose marketing also submits paragraph g statutory definition mining operation must stand alone beneficiation therefore rebateable considering production common salt evaporation operation paragraph g however tribunal find paragraph g stand alone also operation post wet stockpile constitute beneficiation respondent argues beneficiation done integral part operation recovery required paragraph b statutory definition mining operation according respondent submission recovery common salt completed time harvested crystalliser although washing remove dirt debris caused harvesting operation treated beneficiation integral part harvesting recovery operation handling wet stockpile subsequently cannot described 21 tribunal find paragraph ca application mr corke submits operation wet stockpile even connected beneficiation integral part operation recovery common salt diesel fuel used transport product dry stockpile used operation upon dry stockpile mr corke submits reason denying rebate operation carried place adjacent area wet stockpile beneficiation occurs proposition relies upon authority leslie salt findingsproduction common salt22 intention legislature grant rebate duty diesel fuel used production common salt mean evaporation common sense scientific point view supported evidence dr avraamides common salt sodium chloride produced dampier lake mcleod product harvested crystallisers washed product wet stockpile already common salt processing refining way drainage evaporation working pile machinery part process preparing common salt sale applicant customer chosen market accordance contract specification typical specification 23 true authority dealing sale tax production good hold production necessarily cease first stage saleable product come existence producer intended final saleable product must taken account diesel fuel rebate legislation however question whether particular operation rebateable case production specific mineral part mining operation statutorily defined find relevant rebateable operation completed mineral sodium chloride common salt produced harvested finding adopting approach leslie salt pp20 21 24 tribunal made following comment term production word production defined macquarie dictionary asfollows 1 act producing creation manufacture 3 econ thecreation value producing article exchangeablevalue commissioner taxation v jax tyre pty ltd 1984 5 fcr 257themeaning word manufacture sale tax legislation issue word defined legislation include production lockhart j said p 261 manufacture article necessarily involves producing differentarticle article material ingredient wasmade darling j said mcnichol v pinch 1906 2 kb 352at 361 think essence making manufacturing madeshall different thing made passage approved applied dixon j federal commissionerof taxation v jack zinader pty ltd 1949 hca 42 1949 78 clr 336 leading casein field whether article result process ofmanufacturing different article constituent ingredientsfrom made question fact jack zinader case production included definition manufacture word wide import still involves element producingsomething different material made notpossible formulate precise definition general term manufacture production bear restrictedmeaning whatever answer description manufacture production good according accepted usage english languageis within theact sheppard j made similar remark wilcox j agreed commissioner oftaxation cth v ici australia limited 1972 hca 75 1972 127 clr 529 income taxcase taxpayer engaged production common saltby mean evaporation followed similar production process thatfollowed applicant instant case save initialquantity brine pumped surface earth ratherthan obtained sea walsh j said p 549 endproduct operation considered salt incrystallized form freed water solution menzies j said p 571 doubt end product whole activity iscrystalline salt paragraph g expressed plain language refers simply theproduction common salt statutory elaboration thisphrase example reference marketing factor inrelation meaning production distinction drawnbetween grade common salt phrase production common salt must therefore interpreted literally accordance itsordinary natural meaning 24 abbott point bulk coal pty ltd v collector custom 1992 fca 181 1992 35 fcr 371ryan cooper jj said pp 378 379 regarding term recovery whether activity fall within definition miningoperations defined 164 7 thecustoms act 1901is questionof fact question recovery complete eachcase commonsense commercial approach taken thequestion regard evident purpose legislation makerebates available promote exploitation mineral deposit inaustralia however point reached mineral beenrecovered done thereafter use processing ofit better use mineral process recovery includes view step aretaken miner sale whatever process remove mineralfrom embedded intermixed aprocess comprehends refining mineral ore remove impuritiesnaturally occurring material mined theprocess separation refining completed subject themineral product process procedure designed purely facilitateit better use separated refined render readily oradvantageously marketable view part recoveryprocess operation wet dry stockpile transportation portlake mcleod25 convenient consider diesel fuel used lake mcleod operation first decided mining operation defined head paragraph b statutory definition mining operation rely solely upon extended definition provided paragraph g 26 firstly operation wet stockpile connected mining within meaning paragraph c answer negative mining ceased harvest common salt produced least first washing stage wet stockpile operation connected preparation sale common salt already fully recovered operation constitute beneficiation provided paragraph b operation connected beneficiation provided paragraph ca meaning beneficiation considered french j abbott point bulk coal pty ltd v collector custom 1992 fca 181 1992 35 fcr 371when said p390 definition word beneficiate oxford englishdictionary show derived spanish word beneficiar mean benefit derive profit mine reduce ore french j prepared take fairly broad economic approach concept may well cover blending operation wet stockpile occurring time chemical property salt still enhanced process draining evaporation accept diesel fuel used work wet stockpile used beneficiation least operation connected beneficiation abbott whatever proper characterisation operation wet stockpile integral part recovery operation consideration apply even force operation performed later dry stockpile likewise diesel fuel used transport common salt port site definitely marketing operation relevantly connected mining beneficiation integral part operation recovery mineral dampier27 turning dampier operation follows consideration must apply harvesting identical operation relevant respect dampier operation however additional difficulty applicant clearly fall within head provision paragraph b statutory definition mining operation rely upon broader definition mining operation provided paragraph g definition production common salt mean evaporation leslie salt correctly decided question statutory interpretation operation must considered isolation sub surface mining operation cannot rely upon broader definition provided paragraph b c ca result would rebate would payable operation merely connected mining beneficiation operation connected beneficiation 28 detailed consideration adopting reasoning full federal court state rail authority new south wale v collector custom 1991 fca 610 1991 33 fcr 211at p215 tribunal leslie salt came conclusion paragraph g intended legislature stand outside head provision set paragraph b salt produced merely evaporation without sub surface mining operation paragraph c ca inapplicable 29 raise difficult question statutory interpretation one hand many consideration logic common sense favour allowing rebate expanded operation would seem accordance spirit beneficial purpose legislation hand would easy drafter legislation place paragraph g head provision intention also concept beneficiation mineral ore bearing mineral fit easily e liquefying natural gas g production common salt mean evaporation 30 aware desirability consistency decision making instance another reason content adopt interpretation adopted leslie salt conclusion31 follows reason given diesel fuel used various operation salt placed wet stockpile rebateable lake mcleod involves sub surface mining theoperations satisfy criterion rebate set paragraph b c ca g statutory definition miningoperations ii dampier reason also paragraph b c ca definition apply production ofcommon salt mean evaporation referred paragraph g thereof decision review must affirmed 32 decided operation consideration connected mining beneficiation integral part operation recovery mineral necessary decide whether operation dry stockpile carried place adjacent area mining beneficiation occurs within meaning paragraph c ca k j taylor matter first started october 1988 result application diesel fuel rebate leslie salt port operation australian custom service refused rebate operation ac decided bring salt producer onto basis accordingly rebate port operation dampier salt paid previous five year also cancelled hence rebate payable operation point departure wet stockpile 2 tribunal leslie salt decision affirmed decision refused payment rebate post wet stockpile operation e port operation paragraph 18 leslie salt decision read 18 applicant claim rebate duty paid respect ofdiesel fuel purchased use operation point whichthe salt reclaimed wet salt stockpile see paragraph 4 11above granted respondent applicant case circumstance 3 however least two factual distinction leslie salt firstly operation dampier salt contained entirely within property dampier salt public road secondly leslie salt operates batch production process whereas dampier salt operates continuous process using one crystalliser pond resulting difference crop composition uniformity mining operations4 find activity dampier lake mcleod point departure wet stockpile mining operation supported view following ac view hearing commenced decision underreview b decision leslie salt confirms rebate payable forwet stockpile operation c view recovery mineral complete afterharvesting washing draining etc respondent witness dravraarides stated point harvesting crystallisersthe product crude common salt contained followingimpurities salt calcium sulphate magnesium sulphate magnesiumchloride potassium chloride also worthwhile quoting fromabbott point bulk co pty ltd quoted leslie salt process recovery includes view step aretaken miner sale whatever process remove themineralfrom imbedded intermixed matter time dumping wet stockpile water content harvested crop contains 10 14 per cent water many salt impurity process recovery cannot deemed completed time dumping wet stockpile statute production common salt byevaporation heading mining operation 5 seeking guidance authority meaning use mining operation found high court australia commissioner taxation cth v ici australia 1972 hca 75 1972 127 clr 529to minimal misleading assistance decision found production salt mean evaporation surface earth mining operation expression commonly understood 6 precisely high court decision others legislation specifically amended make production salt evaporation mining operation definition hence ici australia 1972 limited relevance matter 7 essence 164 7 thecustoms actsays mining operation mean mining mineral ordressing beneficiation includes production common salt evaporation 8 constitutes mining operation cannot understood unless mean includes given full proper meaning intent simply possible logic argue sub para g stand alone paragraph excluded meaning intent two key word head provision mining operation 9 matter much speculation may difficulty faced parliamentary draughtsman making amendment done best parliament endorsed present form 10 find sub paragraph g integral part definition mining operation cannot stand alone also find paragraph b c ca application salt mining operation 11 find fact process recovery mineral common salt continues wet stockpile operation saleability12 paragraph 43 leslie salt long list authority decision read tribunal agrees phrase production common salt interpreted regard saleability common salt produced context relevant provision custom excise act interpreted beneficially common sense practical way regard commercial consideration 13 salt mine specially designed built supply high quality salt japanese chlor alkali market hence contract specification detailed composition salt ratio moisture content etc clause specifying quality salt required one case mcleod field salt produced specification 29 30 customer lost importance quality control sampling every 20 minute input wet stockpile part production specification requirement 14 mr lewis reply professor hotop query salt dampier produce consistently fails meet typical contract specification would market salt answered would market salt 15 dr avraamides sole witness respondent agreed harvesting crystallisers crude product incapable used commercial purpose 16 find fact point harvesting crude salt crystalliser pond product saleable commodity process production common salt evaporation completed salt becomes saleable post wet stockpile operation 17 reason would set aside decision review allow diesel fuel rebate fuel purchased operation wet stockpile dampier lake mcleod venue |
Ikaga & Ikaga [2015] FamCA 817 (21 September 2015).txt | ikaga ikaga 2015 famca 817 21 september 2015 last updated 8 october 2015family court australiaikaga ikaga 2015 famca 817family law practice procedure mother seek father sign form department immigration border protection form consent child granted australian visa order made requiring father complete form applicant m ikagarespondent mr ikagafile number brc5245of2014date delivered 21 september 2015place delivered brisbaneplace heard brisbanejudgment hogan jhearing date 21 september 2015representationsolicitor applicant m brierley new way lawyerssolicitor respondent m miranda michael lynch lawyer withdrew respondent appearanceordersit ordered 1 respondent legal representative michael lynch family lawyer leave withdraw solicitor record 2 applicant solicitor deliver completed department immigration citizenship form 1229 relating grant australian visa child b born 2011 respondent within seven 7 day today date 3 respondent execute said document department immigration citizenship form 1229 section 3 respondent giving consent granting australian visa child email post completed form applicant solicitor later fourteen 14 day date order 4 failing respondent returning original form signed applicant solicitor within fourteen 14 day date order upon filing applicant solicitor affidavit annexing copy correspondence respondent required order 1 hereof swearing failure respondent return signed copy application required order 2 hereof pursuant tos106aof thefamily law act 1975 cth registrar family court australia urgently execute document basis respondent refused neglected comply order court considers necessary exercise power court unders 106a 5 respondent pay applicant cost incidental application case filed 29 july 2015 amount may agreed party failing agreement assessed notationthe document executed registrar family court australia appointed order force validity document executed father notedthat publication judgment court pseudonymikaga ikagahas approved chief justice pursuant tos 121 9 g thefamily law act 1975 cth family court australia brisbanefile number brc 5245 2014ms ikagaapplicantandmr ikagarespondentex temporereasons judgmentb born 2011 australia mother citizen united state america father permanent residency country citizen country c party commenced relationship late 2008 early 2009 married 2009 united state america relocated australia june 2010 bringing mother two child previous relationship appears material albeit course interim application party travelled australia facilitate study university mother evidence clear indicates move australia intended party time represent initiation process becoming permanent resident country 2011 mother sought obtained temporary work visa employer visa said expired december 2014 june 2013 party separated separation 19 july 2014 father signed consent b permanent residency application 20 november 2014 father apparently withdrew consent application mother situation employer prepared sponsor child including b relation visa permanent residency therefore seek b included application raise concern absence father agreement application execution necessary documentation may determined relevant department consequently remains risk b may leave australia least would put expense application appropriate tribunal following determination clear child visa status use colloquialism matter completely independent consideration parenting order child best interest conveyed mother legal representative solicitor acted father correspondence dated 17 august 2015 seems appropriate b best interest mother able continue process necessary seek permanent residency best interest therefore order made term contained application case filed 29 july 2015 order issue term paragraph 1 2 3 application intend make order term clause 4 unnecessary given registrar empowered bys 106aof act execute document place party failed execute concern mother appropriate authority fully appreciate happy make notation term clause 4 order sought application case filed 29 july 2015 misunderstanding completed application clearly b best interest permitted continue live australia mother able obtain benefit used support application visa sought would promote nothing material suggest conclusion short reason determine necessary light father failure appear today material court event order issue term outlined mother legal representative also sought make order cost incidental application today basis would persuaded circumstance justify court departing starting point party term cost jurisdiction starting point set in 117 1 thefamily law act 1975 cth party proceeding act shall bear cost section 117 2 however provides court opinion circumstance justify court may subject s 2a 4 4a 5 make order cost court considers order may made way interlocutory order section 117 2a provides considering order made court shall regard number matter include financial circumstance party whether party proceeding receipt assistance way legal aid conduct party proceeding relation proceeding generally whether proceeding necessitated failure party proceeding comply previous order whether party proceeding wholly unsuccessful whether party made offer writing settle proceeding term offer andsuch matter court considers relevant matter set in 117 4 4a 5 relevant present case clear material party paid employment particular detail though earnings household mother employer seems prepared sponsor already made clear father evidence relied upon mother legal representative may found paragraph 35 affidavit filed 17 june 2015 summary establishes working field asserts pay good australia cost living city state e currently life said cheaper country say permanent job u based company evidence though extent earnings another relevant factor appears april 2015 17 september 2015 father sent mother 2 500 00 way child support b save contribution appears mother left shoulder burden balance financial support b well doubt child nothing material suggest either party receipt legal aid sense father position advanced court proceeding prior today seek dismissal application wholly unsuccessful approach particular aspect proceeding nothing suggest application necessitated failure part father comply previous order appears content exhibit 1 namely correspondence dated 17 august 2015 month prior today amounted proposal resolve application case agreement proposal clearly outlined mother legal representative correspondence deal application case way agreement save party legal cost position made clear namely signed document provided right seek cost order matter came court reserved sense seems well established applicant attempted resolve proceeding obviate necessity necessity appearance today well today manner authority referred application general principle inevitable relevant matter father left commonwealth australia returned live united state reason persuaded circumstance justify making order cost make order respondent pay applicant cost incidental application amount may agreed party failing agreement assessed certify preceding twenty nine 29 paragraph true copy reason judgment honourable justice hogan delivered 21 september 2015 associate date 21 september 2015 |
Merredin Customer Service Pty Ltd as Trustee for Hatch Family Trust t_a Donovan Ford_Merredin Nissan and Donovan Tyres -v- Roslyn Green [2007] WAIRComm 35 (15 January 2007).txt | merredin customer service pty ltd trustee hatch family trust donovan ford merredin nissan donovan tyre v roslyn green 2007 waircomm 35 15 january 2007 last updated 10 july 2007western australian industrial relation commissionpartiesmerredin customer service pty ltd trustee hatch family trust donovan ford merredin nissan donovan tyresapplicant roslyn greenrespondentcoramthe honourable ritter acting presidentheardmonday 11 december 2006deliveredmonday 11 december 2006publishedthursday 25 january 2007file pres 13 2006citation 2007 wairc 00035catchwordsindustrial law wa application stay order commission stay order principle opposition stay respondent issue relating financial circumstance applicant whether special circumstance warrant granting stay application granted industrial relation act 1979 wa amended s49 11 decisionapplication grantedappearancesapplicantmr r gifford agentrespondentno appearancereasons decision delivered ex tempore edited transcript acting president today application made pursuant tos49 11 theindustrial relation act 1979 wa amended act subsection provides time appeal full bench instituted section person sufficient interest may apply commission order operation decision appealed stayed wholly part pending hearing determination appeal applicant stay order appellant appeal fba 39 2006 appeal order made commissioner smith senior commissioner 23 october 2006 commissioner smith firstly declared applicant unfairly dismissed secondly order respondent pay applicant within 14 day date order sum 8840 le taxation may payable commissioner taxation compensation thirdly order application otherwise dismissed understand order made respect applicant seeking order reference supplied respondent understand commissioner made clear respondent application reference could granted beyond power commission make order applicant filed notice appeal 13 november 2006 attached two ground appeal set upon filing application stay application endorsed certain direction made direction included setting matter hearing also procedural direction firstly direction service application filing declaration service direction complied direction directed respondent direction effect respondent intended oppose application 2 15pm wednesday 6 december 2006 file serve answer direction made affidavit evidence finally direction made filing service written submission party 2 15pm friday 8 december 2006 respondent file answer application make point however respondent acting person applicant stay filed written submission support application considered referred moment respondent upon contacted associate direction whether would filing written submission advised would send information associate via email occurred friday 8 december 2006 understand 4 22pm although email marked 5 22pm seems respondent computer may adjusted time accommodate daylight saving copy email sent applicant agent confirmed afternoon email respondent make number point firstly apologises late reply direction made comment course accept apology number point made respect application ultimately respondent state dispute making stay order respondent also say would seek excused court hearing today financial reason apparent respondent resident south west upon receipt email requested associate contact respondent advise light non objection making stay order necessary attend afternoon communication received respondent response application stay set ground support application first ground argues appeal deal issue substance genuinely arguable say ground deal employment status applicant first instance context whether employment likely ongoing secondly various factor relevant setting amount compensation applicant stay refers balance convenience argued balance convenience favour granting stay payment amount compensation applicant circumstance applicant facing substantially reduced turnover relating sale vehicle part vehicle servicing due rural downturn consequent effect profitability likely lead redundancy effected within company said consequence sought avoided applicant company ought preferably occur respect real possibility appeal could succeed whole part case compensation awarded may accordingly varied application stated evidence intended led confirm financial status applicant anticipated impact upon applicant operation event payment required made point time stated applicant also filed written submission directed written submission cover ground referred application detail written submission refer principle govern whether application stay ought granted applicant cite decision injohn holland group pty ltd v cfmeu 2005 85 waig 3918and particular paragraph 31 38 inclusive indicating approach taken stay application present respect balance convenience issue referred earlier written submission state intention applicant lead evidence managing director applicant mr rick hatch financial circumstance applicant written submission provide summary evidence could entail indicated applicant agent think necessary hear evidence afternoon light non objection making stay order indicated respondent indicated view would circumstance appropriate grant stay order sought provide short reason term ofs49 11 ofthe actrefer first appeal full bench instituted occurred said subsection refers person sufficient interest applying commission stay order applicant appellant appeal person order made first instance person sufficient interest apply order unders49 11 ofthe act remains considered whether discretion order stay exercised applicant favour referred earlier thejohn holland groupdecision reiterate opinion principle guiding application present set decision respect financial circumstance respondent made reference consideration decision inseacode nominee pty ltd v nigel anthony penfold 2005 85 waig 3926and particular paragraph 13 17 stated theseacodedecision appellant financial circumstance matter relevant exercise discretion always lead conclusion appropriate grant stay execution indicated thejohn holland groupdecision primary matter consider granting stay consequence granting stay one way party may face severe financial difficulty financial ruin stay granted may reason make order stay instance considered arguability appeal matter relevant granting stay necessary consider course important note one cannot consider prospect success appeal final sense also note course matter proceeding full bench one member bench two colleague sitting opportunity consider ground appeal full present time would make observation quick look matter whilst ground appeal arguable seem point time lead overwhelmingly think appeal might succeed however say opportunity full consideration matter stage benefit full argument also reiterate observation made thejohn holland groupdecision paragraph 48 respect caution need exercised considering strength ground appeal point time paragraph adopted stated president dea inrobe river iron associate v amwsu 1988 68 waig 1709at 1710 overall opinion need special circumstance stay application would ordinarily granted time necessity preserve integrity appeal make stay order appeal rendered nugatory however circumstance non opposition respondent stay order matter taken account afforded weight deciding whether special circumstance warranting granting stay make observation ordinarily reluctance grant stay part view successful applicant first instance ought entitled fruit litigation however person benefit would benefit order made first instance oppose stay order extent lessens necessity see fruit litigation provided party success first instance another case made stay order part attitude respondent inst cecilia college school board v grigson 2006 86 waig 1260 present case arguability appeal sense described earlier also position respondent described earlier opinion appropriate grant order stay note position applicant well relation financial circumstance intention lead evidence mr hatch regard necessary also matter take account deciding grant stay order today although respondent position necessary hear evidence opinion therefore make order sought relation stay however made absolutely clear appeal dismissed present applicant obliged pay amount ordered commission first instance despite told financial circumstance take step necessary ensure resource available satisfy order made first instance appeal succeed intend set order think made moment published form minute party obviously including respondent given opportunity advise whether wish make submission content order contained minute order think made order made commission 23 october 2006 application u 172 2005 wholly stayed pending hearing determination appeal fba 39 2006 order party liberty apply 48 hour notice purpose seeking variation revocation first order made |
Ridge Commercial Pty Ltd [2016] FWCA 5226 (2 August 2016).txt | ridge commercial pty ltd 2016 fwca 5226 2 august 2016 2016 fwca 5226fair work commissiondecisionfair work act 2009s 185 enterprise agreementridge commercial pty ltd ag2016 3965 ridge commercial pty ltd cepu plumbing division victorian branch enterprise agreement 2015 2019plumbing industrycommissioner roemelbourne 2 august 2016application approval ridge commercial pty ltd cepu plumbing division victorian branch enterprise agreement 2015 2019 1 application made approval enterprise agreement known theridge commercial pty ltd cepu plumbing division victorian branch enterprise agreement 2015 2019 agreement application made pursuant tos 185of thefair work act 2009 act made ridge commercial 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 communication electrical electronic energy information postal plumbing allied service union australia bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 note agreement cover organisation 4 agreement approved 2 august 2016 accordance withs 54 operate 9 august 2016 nominal expiry date agreement 31 october 2019 commissionerprinted authority commonwealth government printer price code ae420254pr583554 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 |
Santiago (Migration) [2022] AATA 4954 (26 July 2022).txt | santiago migration 2022 aata 4954 26 july 2022 last updated 16 february 2023santiago migration 2022 aata 4954 26 july 2022 decision recorddivision migration refugee divisionapplicant mr marcela santiagorepresentative mr ellen vezacase number 2204364home affair reference bcc2020 1910280member moira brophydate 26 july 2022place decision sydneydecision tribunal remit application visitor class fa visa reconsideration direction applicant meet following criterion subclass 600 visa regulation 2 03aa 2 statement made 26 july 2022 9 31amcatchwordsmigration visitor class fa visa subclass 600 visitor criminal history statement appropriate authority digital police certificate issued australian federal police decision review remittedlegislationmigration act 1958 cth 65migration regulation 1994 cth r 2 03aa schedule 2 cl 600 213 schedule4 pic 4001statement decision reasonsapplication reviewthis application review decision made delegate minister home affair refuse grant applicant visitor class fa visa unders 65of themigration act 1958 cth act applicant applied visa 15 july 2020 criterion visitor class fa visa set schedule 2 themigration regulation 1994 cth regulation additional criterion prescribed division 2 1 ofpart 2of regulation regulation 2 03aaof regulation applies person required satisfy public interest criterion pic 4001 4002 reg 2 03aa 1 case 600 213 schedule 2 regulation requires applicant meet pic 4001 applicant therefore required satisfy criterion reg 2 03aa 2 regulation 2 03aa 2 requires requested applicant provided statement relevant authority country person resides resided provides evidence whether person criminal history regulation 2 03aa 2 b requires requested applicant provided completed approved form 80 tribunal may waive requirement reg 2 03aa 2 reasonable applicant provide statement reg 2 03aa 3 tribunal cannot waive requirement applicant provide completed form 80 delegate refused grant visa 16 march 2022 basis applicant meet reg 2 03aa failed provide police clearance certificate australian federal police following reason tribunal concluded matter remitted reconsideration consideration claim evidencethe issue case whether applicant provided statement appropriate authority provides evidence whether person criminal history applicant provided statement appropriate authority tribunal satisfied applicant requested department provide statement relevant authority australia 4 october 2020 17 may 2022 tribunal date decision delegate documentation provided 1 june 2022 applicant provided tribunal digital police certificate issued australian federal police dated 1 june 2022 statement effect applicant disclosable court outcome recorded date certificate accordingly tribunal find applicant provided statement appropriate authority therefore meet reg 2 03aa 2 conclusionon basis finding applicant meet reg 2 03aa 2 decisionthe tribunal remit application visitor class fa visa reconsideration direction applicant meet following criterion subclass 600 visa regulation 2 03aa 2 moira brophymember |
The Owners - Strata Plan 21702 v Krimbogiannis [2014] NSWCA 411 (5 December 2014).txt | owner stratum plan 21702 v krimbogiannis 2014 nswca 411 5 december 2014 last updated 8 december 2014court appealnew south walescase title owner stratum plan 21702 v krimbogiannismedium neutral citation 2014 nswca 411hearing date 24 november 2014decision date 05 december 2014before basten ja 1 macfarlan ja 36 meagher ja 37 decision 1 set aside order 2 dismissing applicant appeal order 3 applicant pay respondent cost made district court 28 may 2013 2 order first second third respondent pay applicant cost court cost thrown away abandonment hearing 11 june 2014 applicant pay respondent cost 3 grant respondent certificate thesuitors fund act 1951 nsw 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 catchword administrative law judicial review error law whether district court erred scope statutory obligation owner corporation maintain repair common property appeal decision consumer trader tenancy tribunal dismissed appeal order district court substantive issue party longer exists respondent seeking maintain favourable cost order court public interest addressing erroneous construction power obligation owner corporation whether relief declined discretionary basisstrata title owner corporation power duty maintenance repair common property lot owner altered common property without authorisation whether owner corporation obligation maintain common property read reference duty keep good serviceable repair whether obligation maintain common property extends removing unauthorised alteration entitlement order access occupier stratum scheme management act 1996 nsw s 62 65 145legislation cited building unit group title act 1980 qld 37interpretation act 1987 nsw 50strata scheme freehold development act 1973 nsw s 5 18 21strata scheme management act 1996 nsw s 61 62 65 65a 116 145 200 201 ch 3 pt 1 2supreme court act 1970 nsw 69cases cited boral gas nsw pty ltd v magill 1993 32 nswlr 501cain v new south wale land housing corporation 2014 nswca 28 86 nswlr 1ridis v stratum plan 10308 2005 nswca 246 63 nswlr 449sattel v proprietor bee tropical apartment building unit 2 2001 qca 560 2002 2 qd r 427the owner stratum plan 50276 v thoo 2013 nswca 270category principal judgmentparties owner stratum plan 21702 applicant arthur krimbogiannis first respondent andrew krimbogiannis second respondent connie krimbogiannis third respondent district court nsw fourth respondent fallshaw investment pty ltd fifth respondent representation counsel counsel mr rg kaye sc applicant mr b zipser first third respondent submitting appearance fifth respondent solicitor solicitor le page lawyer applicant konstan lawyer first third respondent crown solicitor office fourth respondent blake lawyer fifth respondent file number 2013 277696decision appeal court tribunal district court levy dcj date decision 28 may 2013 citation owner stratum plan 21702 v krimbogiannis 2013 nswdc 72 court file number 2012 126027judgmentbasten ja connaught large residential building liverpool street sydney comprising stratum lot subject mixed use stratum plan applicant owner corporation first second third respondent respondent proceeding commenced tenant owner lot 6 ran food business ground floor building long registration plan july 1984 registered proprietor lot 6 tenant without authority owner corporation removed glass panel forming part external wall building hence part common property vested owner corporation replaced glass sliding door 18 april 2006 stratum manager wrote occupier lot 6 requiring common property restored original condition 3 march 2010 owner corporation wrote respondent seeking access premise carry work necessary restore common property original state reason explained owner corporation entitled access order carry work failing obtain consent tenant occupation owner corporation sought order access adjudicator thestrata scheme management act 1996 nsw 145 application refused 18 november 2010 owner corporation commenced proceeding consumer trader tenancy tribunal tribunal reason known court matter heard 22 august 2011 28 march 2012 reason delay unknown tribunal refused application owner corporation appealed district court 28 may 2013 dismissed appeal cost owner stratum plan 21702 v krimbogiannis 2013 nswdc 72 levydcj appeal district court lay pursuant tos 200of thestrata scheme management act otherwise 201 appeal decision district court exercise jurisdiction dissatisfied party may seek relief court pursuant supervisory jurisdiction unders 69of thesupreme court act 1970 nsw absent relevant privative clause jurisdiction court extends conventional language correction jurisdictional error error law face record cain v new south wale land housing corporation 2014 nswca 28 86 nswlr 1at 9 factual twist need addressed respondent proceeding commenced tribunal tenant occupation resisted application access however 30 april 2014 lease expired owner corporation subsequently obtained access enable carry necessary work respondent interest litigation thus limited maintaining cost order made district court counsel respondent opposed grant relief court ground proceeding court premature referring toboral gas nsw pty ltd v magill 1993 32 nswlr 501 argument based alleged failure owner corporation take step available tribunal necessary explore matter suggestion appeal district court could avoided relevant application review judgment district court alternative relief available would however open court decline grant relief basis issue party moot owner corporation longer requires order access refusal led initiation proceeding however merely live question cost alone would rarely ever justify round litigation also issue involving ongoing public interest power owner corporation unders 62of thestrata scheme management act also issue relevance application observation inridis v stratum plan 10308 2005 nswca 246 63 nswlr 449as operation ofs 62 respondent expressly supported reliance placed primary judge reasoning case answer question clear reasoning finding district court erroneous court decline relief discretionary ground power owner corporationthe primary judge noted issue appeal identified different way party owner corporation identified issue whether entitled order access lot 6 restore common property state intended operate replacing sliding glass door fixed plate glass window installation breach ofs 65aof stratum scheme management act 9 stated contrast respondent saw central issue proper construction ofs 62of stratum scheme management act 10 judge identified central issue correctly proper construction ofs 62 13 section relevantly provides follows 62 duty owner corporation maintain repair property 1 owner corporation must properly maintain keep state good serviceable repair common property personal property vested owner corporation 2 owner corporation must renew replace fixture fitting comprised common property personal property vested owner corporation comprises lot stratum scheme defined thestrata scheme freehold development act 1973 nsw 5 1 common property defined mean much parcel time time comprised lot common property vested owner corporation upon registration stratum plan 18 1 common property shall capable dealt except accordance provision act thestrata scheme management act 1996 21 turning tos 62of thestrata scheme management act certain provision thestrata scheme management actshould noted section 116provides 116 owner occupier person interfere structure lot service lot 1 owner mortgagee covenant chargee possession whether person lessee occupier lot must anything permit anything done relation lot support shelter provided lot another lot common property interfered b 2 owner lot must alter structure lot without giving owner corporation later 14 day commencement alteration written notice describing proposed alteration 3 section lesseeof lot stratum leasehold scheme mean sublessee lot thus prohibition lot owner lessee occupier lot interfering common property dispute alteration made external fixed glass wall installing sliding door interfered common property although suggestion owner corporation taken step alter common property constituted fixed glass wall within prerogative owner corporation accordance withs 65a 65a owner corporation may make authorise change common property 1 purpose improving enhancing common property owner corporation owner lot may take following action special resolution first passed general meeting owner corporation specifically authorises taking particular action proposed add common property b alter common property c erect new structure common property provision relied owner corporation seeking access lot 6 commenced withs 65 relevantly provides 65 owner corporation enter property order carry work 1 owner corporation may agent employee contractor enter part parcel purpose carrying following work work required carried owner corporation accordance act including work relating window safety device b work required carried owner corporation notice served public authority c work required carried owner corporation order act refused access occupier lot 6 namely respondent owner corporation sought order adjudicator pursuant tos 145 145 order entry lot 1 adjudicator may make order requiring occupier lot part lot allow access lot following purpose enable owner corporation carry work referred section 65 1 determine whether work need carried b enable inspection referred section 65c carried 2 section limit power owner corporation enter lot section 65 3 without applying order section 3 application order section may made owner corporation purpose 145 1 work required carried accordance act identified 65 1 included work maintain common property pursuant 62 1 followed owner corporation entitled order sought work sought required 62 1 section 62 imposes obligation maintain common property read statutory context regard nature common property vested owner corporation function owner corporation respect property obligation carry power necessary performance interpretation act 1987 nsw 50 1 e reasoning district court sought read meaning maintain reference following word namely keep state good serviceable repair however maintain limited meaning keeping good repair assumes continued existence property question maintaining property includes preserving removing replacing destroying property much clear dictionary definition relied mccoll ja inridisat 158 contrary view articulated primary judge involved reading concept maintenance reference concept repair approach justified reference single sentence reasoning mccoll ja inridis referring macquarie dictionary definition noted mccoll ja said p rima facie therefore obligation maintenance repair in 62 1 directed keeping common property operational restoring something defective ridiswas concerned issue far removed present case involved claim damage breach general law duty care relation condition glass entry door formed part common property building door shattered injuring plaintiff question liability depended scope duty care owner corporation respect risk harm arising state door case nothing unauthorised replacement common property lot owner access lot question rather whether owner corporation identified risk materialised replaced door one complying current safety standard unpromising context find assistance respect present issue court inridiswas divided outcome majority hodgson ja mccoll ja dismissed claim tobias ja dissenting mccoll jaassessed general law duty care reference statutory function owner corporation concluded obligation maintain repair common property imposed bys 62 1 require upgrading comply current safety standard given issue requiring resolution inridis namely whether general law duty care read context statutory obligation in 62 1 extended require replacement existing common property question unauthorised removal replacement lot owner simply arise infer absence discussion obligation unders 62with respect restoration unauthorised replacement common property thats 62does apply circumstance misunderstand judgment nothing say circumstance remote issue court case court purported chart limit duty imposed bys 62 1 extent reason could readily disregarded concisely explained hodgson ja ridisturned limited question whether acting reasonably owner corporation aware risk door would shatter 7 indeed limited scope observation relied upon apparent fact mccoll ja referred 160 evident approval decision queensland court appeal insattel v proprietor bee tropical apartment building unit plan 71593 2 2001 qca 560 2002 2 qd r 427 specific reference passage judgment de jersey cj relation queensland equivalent tos 62 1 namelys 37 1 c thebuilding unit group title act 1980 qld stated body corporate shall properly maintain keep state good serviceable repair including reasonably necessary renew replace whole part thereof common property issue whether obligation body corporate expense cleaning tidying reception area fell within scope obligation chief justice stated 27 conclusion cleaning tidying activity fall withins 37 1 c obligation provision maintain keep state good repair quite different kind mere cleaning tidying centre preservation fabric premise mccoll ja citation passage demonstrates identification keeping common property operational extended preservation respondent sought support reliance statement inridisfrom judgment tobias aja barrett ja preston cj lec agreed inthe owner stratum plan 50276 v thoo 2013 nswca 270at 84 certain subsequent reference similar effect tobias aja stated dispute mccoll ja noted inridisat 158 62 1 directed keeping common property operational restoring something defective statement assist respondent two principal reason first matter said dispute statement involve considered reappraisal proposition secondly importantly another case issue whethers 62imposed owner corporation obligation upgrade part common property case ventilation system reading rejected likeridis thoowas concerned present issue much expressly recognised tobias aja 102 conclusionthe primary judge imposed limitation proper construction ofs 62 1 led reject owner corporation appeal error law appears explicitly court reason therefore error law face record purpose ofs 69 4 thesupreme court act considered judgment district court readily available online public interest correcting error going heart statutory function owner corporation generally however live issue whether applicant even though successful construction ofs 62 receive cost district court part thereof counsel respondent indicated matter live would wish challenge adverse cost order basis owner corporation raised several ground appeal rejected primary judge subject challenge court accordingly appropriate set aside cost order made district court open court make order place matter winding somewhat leisurely way procedure available thestrata scheme management act including adjudicator tribunal reaching district court possible court halt expense would wish however course possible although may hoped great incentive return district court reagitate question cost far cost application court concerned owner corporation successful general order thing cost would follow event order resisted respondent two base first suggested discount basis owner corporation succeeded one ground although concededly principal ground submission accepted principal ground ground 1 squarely identified issue owner corporation succeeded namely proper construction ofs 62of thestrata scheme management act relevance observation inridisas proper construction provision ground 2 placed reliance ons 61of thestrata scheme management act appears ch 3 pt 1 described overview chapter stated owner corporation responsibility maintaining repairing common property stratum scheme provided bypt 2 includess 62 necessary refer tos 61in order understand scope ofs 62 1 however ground 2 supportive ground 1 raised separate issue ground 3 pressed stated applicant written submission filed 16 december 2013 three month summons filed two month respondent filed written submission pleading ground followed prompt abandonment affect running case ground 4 alleged error part primary judge refusing leave expand appeal question fact mixed question fact law lengthy written submission ground dealt two brief paragraph reached course argument court basis objection provide sound reason denying applicant cost court true respondent longer concerned whether owner corporation gained access premise longer occupy fought vigorously doubt regard favourable cost order district court maintain decision court subject follows pay cost defensive action second basis resistance cost order matter listed court hearing previous occasion namely 11 june 2014 happened occasion little unclear interplay two related issue first issue raised court whether owner lot 6 joined necessary party proceeding judicial review even though party proceeding district court second matter termination respondent lease 30 april 2014 brought attention party court course hearing counsel respondent event applicant sought adjournment allow join registered proprietor fifth respondent court threat proceeding might dismissed want proper party step taken step taken filing amended summons 2 july 2014 8 august registered proprietor filed submitting appearance hardly surprising material tendered court demonstrated year ago accepted owner corporation right access asserted tenant exclusive possession occupier required give consent act perhaps assumption amendment required result termination occupation respondent respondent previously notified owner corporation court fact suggestion owner corporation aware fact event necessary resolve correctness suggestion owner corporation accepted registered proprietor joined must bear cost adjournment accordingly entitled cost court cost thrown away adjournment 11 june 2014 respondent cost court make following order 1 set aside order 2 dismissing applicant appeal order 3 applicant pay respondent cost made district court 28 may 2013 2 order first second third respondent pay applicant cost court cost thrown away abandonment hearing 11 june 2014 applicant pay respondent cost 3 grant respondent certificate thesuitors fund act 1951 nsw macfarlan ja agree basten ja meagher ja agree basten ja |
Beachfront Towers [2016] QBCCMCmr 176 (21 April 2016).txt | beachfront tower 2016 qbccmcmr 176 21 april 2016 last updated 1 june 2016adjudicator orderoffice commissionerfor body corporate community managementcitation beachfront tower 2016 qbccmcmr 176parties susan head co owner lot 50 applicant body corporate beachfront tower respondent scheme beachfront tower ct 10075jurisdiction section 227 1 229 3 thebody corporate community management act 1997 qld act applying act thebody corporate community management standard module regulation 2008 standard module application 0238 2016decision date 21 april 2016decision zeidler adjudicatorcatchwords interim order whether interim order granted circumstance act s279 1 interim ordersmade hereby orderthat pending final determination matter susan head owner lot 50 permitted bring keep two dog lot 50 accordance condition contained law 12 orderthat interim order expires application finally determined discontinued upon expiry 12 month date order whichever earliestreasons decisionintroduction 1 beachfront tower consists 49 lot common property applicant two dog moodle named paris maltese shitzu named jp 30 july 2015 applicant applied body corporate committee committee permission keep one dog paris lot 14 august 2015 committee rejected pet request 2 15 september 2015 applicant applied committee permission keep second dog jp lot 18 september 2015 committee rejected pet request 3 20 november 2015 party participated conciliation conference office reached agreement applicant dog remain lot subject condition trial period ending 12 february 2016 applicant say complaint made dog time 4 annual general meeting agm dated 26 november 2015 body corporate resolved make determination pet application restricted issue committee considered general meeting 5 extraordinary general meeting egm dated 12 february 2016 body corporate considered motion applicant keep dog lot motion defeated 8 vote favour 13 vote 6 applicant opposes egm decision request interim order dog allowed lot 50 pending final order 7 applicant say dog since puppy part family applicant say dog small well trained shed hair cause nuisance resident 8 interim order normally justified application raise serious question need determined andthe inconvenience likely result interim order outweighed potential detriment order granted jurisdiction 9 satisfied matter fall within legislative dispute resolution provision 1 dispute lot owner body corporate section 276 1 act provides adjudicator may make order equitable circumstance resolve dispute context community title scheme claimed anticipated contravention act 10 section 279 1 act allows adjudicator make interim order satisfied reasonable ground interim order necessary nature urgency circumstance application relates procedural matter 11 accordance withsection 247of act commissioner body corporate community management referred application decide whether nature urgency circumstance application warrant interim order commissioner referred application notwithstanding affected person given notice application afforded opportunity make submission application 2 12 circumstance provided committee limited opportunity make written submission response interim application committee make submission committee provided another opportunity make submission prior final order made analysis 13 law 12 regulates keeping animal law say 12 1 subject section 181 act occupier must without body corporate written approval 1 bring keep animal occupier lot common property 2 permit invitee bring keep animal occupier lot common property 12 2 approval given body corporate law 12 1 must following condition 1 relevant animal must restricted occupier lot exclusive use area allocated lot 2 animal must properly restrained controlled time 3 occupier invitee must prevent animal causing nuisance noise otherwise time 4 approval relates specified animal 12 3 body corporate grant approval occupier keep dog cat occupier lot addition condition law 12 2 approval must contain following condition 1 occupier must satisfy committee animal de sexed 2 occupier must satisfy committee animal capable carried occupier entrance lot boundary scheme land 3 animal must kept within boundary occupier lot 4 occupier must carry animal entrance lot boundary scheme land entering leaving scheme 5 occupier may enter lift scheme building animal lift occupied 6 occupier must dispose animal waste litter way create noxious odour otherwise contaminate scheme 7 occupier must take reasonable effort minimise transmission airborne allergen animal example regularly vacuuming interior lot grooming animal 8 animal must left alone lot overnight continuous period time excess 10 hour day 9 animal must registered council time 10 occupier must comply council local law regulation relating animal 11 occupier must ensure animal treated flea parasite regular basis 12 occupier must immediately notify building manager presence flea parasite discovered within occupier lot detail occupier proposed pest control treatment 13 animal must left permitted remain unattended balcony occupier lot 14 occupier must take animal permit animal enter basement ground floor garage swimming pool enclosure roof top barbecue area gym recreation room 15 occupier must provide body corporate evidence current vaccination animal requested 16 occupier must take necessary step keep animal healthy condition animal checked veterinary surgeon regular basis 17 occupier must provide body corporate recent photograph animal identification purpose 12 4 condition specified law 12 2 12 3 contravened body corporate committee may two warning occupier require immediate permanent removal animal lot common property 12 5 occupier required permanently remove animal subsequent application occupier keep animal occupier lot common property may approved body corporate passing special resolution general meeting owner 12 6 purpose law 12 1 building manager mean person engaged body corporate caretaker letting agent scheme resident scheme 2 council mean sunshine coast regional council successor 14 law 12 permit keeping animal consent body corporate law body corporate given discretion whether approve specific request pet 15 legislation requires body corporate act reasonably carrying function including making decision 3 reasonableness question fact objective test requires balancing factor circumstance according ordinary meaning term reasonable 4 determining request body corporate cannot rigidly apply pet policy rather body corporate must take consideration individual circumstance case 16 question determination whether body corporate properly exercised discretion law 12 given due consideration applicant request 17 stage committee declined make submission matter absence evidence support body corporate decision satisfied applicant raised genuine question whether body corporate acted reasonably deciding refuse permission keeping dog inconvenience interim order 18 considering whether grant interim order sought relevant balance inconvenience granting relief final order ultimately refused inconvenience refusing relief final order ultimately granted 19 apparent significant detriment body corporate allowing dog kept lot 50 pending final order fact allowing dog remain lot short period time could even assist resolution matter occupier able identify whether actual rather hypothetical concern existence particular dog 20 interim order sought granted applicant would faced find temporary accommodation dog indefinite period dispute finally resolved conclusion 21 balance satisfied applicant raised genuine legal issue regard whether body corporate acted reasonably refusing request keep two dog lot 50 circumstance consider sufficient justification applicant permitted keep dog lot dispute finally resolved 22 interim order request applicant state want dog stay lot following condition approval animal animal roam common property applicant responsible care maintenance animal damage caused animal animal create disturbance way noise mess permission shall withdrawn immediately required local authority approval registration kept date 23 final order outcome applicant seek permission given dog sole condition dog kept leash common area 24 onus applicant provide legal argument support outcome sought applicant provided argument justify condition deviated contained law 12 otherwise argued law 12 invalid note applicant agreed condition contained law 12 conciliation agreement accordingly consider applicant comply condition law 12 part interim order 25 matter proceed accordance normal process undertaken office including calling submission affected party final order application made due course 1 section 227 228 276andschedule 5of act 2 section 247 3 act 3 section 94of act 4 q1 2010 qbccmcmr 433 21 september 2010 |
Patterson, Stephanie --- "The Foundations of Aboriginal Title in South Africa?: The Richtersveld Community v Alexkor Ltd Decisions" [2004] IndigLawB 18; (2004) 5(30) Indigenous Law Bulletin 17.txt | patterson stephanie foundation aboriginal title south africa richtersveld community v alexkor ltd decision 2004 indiglawb 18 2004 5 30 indigenous law bulletin 17the foundation aboriginal title south africa richtersveld community v alexkor ltd decisions1introductionthe richtersveld decisionsthe foundation aboriginal title south africa foundation aboriginal title south africa therichtersveld community v alexkor ltddecisions 1 stephanie pattersonintroductiona lack control ownership occupation land black south african hallmark apartheid era colonial period preceded beginning arrival dutch cape 1652 black south african right land consistently ignored legislated existence key event history south african land right passing thenatives land actin 1913 act prevented black owning leasing land outside area designated african reserve constituted thirteen percent south africa land following south africa first democratic election 1994 government national unity required draft pas finalconstitution 2 one right included newconstitutionwas right land restitution therestitution land right act restitution act passed 1994 give effect section 2 1 restitution act provides person community dispossessed right land 19 june 1913 result past racially discriminatory law practice entitled restitution one kind claim said excluded restitution process claim based doctrine aboriginal title 3 section 2 restitution act provides restitution available claimant dispossessed right landafter19 june 1913 government commentator argued term restitution act 1913 cut date would exclude claim based aboriginal title 4 however december 1998 richtersveld people isolated northwestern corner northern cape lodged claim restitution act claim based argument 1913 held aboriginal title land subsequently dispossessed thus first time despite effort government exclude claim south african court forced confront issue aboriginal title therichtersvelddecisionsthe richtersveld people part larger group nama people descended khoikhoi san speaking people area claimed inhabited khoikhoi san people long first colonist dutch arrived cape 1652 1847 british crown annexed area including land would become subject richtersveld claim subject land following annexation richtersveld people continued live land always lived 1925 diamond discovered time government issued licence dig diamond third party licence awarded richtersveld people gradually denied access subject land 5 1957 fence erected around subject land permanently denying richtersveld people access subject land 1989 1994 subject land vested alexkor limited government owned company continues mine diamond subject land 6 land claim court 7 court first instance claim restitution act richtersveld people argued dispossession began 1920s right land based aboriginal title argued title survived annexation existed burden crown title dispossession founded upon notion richtersveld people uncivilised recognisable legal right racially discriminatory gildenhuys aj comprehensively rejected argument first found beyond jurisdiction land claim court court established statute develop south african common law include doctrine aboriginal title secondly gildenhuys aj relied infamous statement privy council inin southern rhodesiathat tribe low scale social organisation 8 incapable property right order find time annexation subject land became crown land colonist recognise richtersveld people right disappointing decision richtersveld people appealed supreme court appeal sca unanimously overturned critical finding made land claim court 9 court found time annexation richtersveld people communal customary law interest whose source traditional law custom richtersveld people 10 court noted similarity customary law interest aboriginal title right saying like customary law interest found held richtersveld community aboriginal title rooted creature traditional law custom member yorta yorta aboriginal community v victoria 2002 hca 58para 103 11 court cited passage brennan j judgment inmabo v queensland 2 12 contained two important principle first brennan j adoption principle change sovereignty alone destroy pre existing property right second brennan j rejection principle expressed inin southern rhodesiathat indigenous people sufficiently civilised recognisable property right court adopted principle found richtersveld people customary law right subject land survived annexation finally court held government failure recognise richtersveld people right land ground insufficient civilisation diamond discovered racially discriminatory thus richtersveld people entitled restitution act restitution right land alexkor ltd appealed supreme court appeal decision constitutional court 14 october 2003 constitutional court affirmed decision sca 13 court agreed sca characterisation richtersveld people right land customary law interest whose content determined reference history usage community richtersveld 14 importantly constitutional court agreed adoption sca rule accepted aboriginal title jurisdiction customary law right land survive acquisition sovereignty colonial power 15 court also agreed sca failure state recognise richtersveld people right land granting mining licence subject land racially discriminatory thus entitled richtersveld people remedy restitution act foundation aboriginal title south africa finding richtersveld people right restitution sca constitutional court adopted several principle fundamental aboriginal title claim first decision demonstrate south african law capable recognising right land source traditional law custom indigenous people secondly decision adopt south african law rule mere change sovereignty disturb pre existing right land decision therichtersveldcases suggest first step toward recognising aboriginal title form part south african law already taken therefore provide encouragement potential claimant whose claim would fit within term restitution act stand good chance success choose pursue common law aboriginal title claim order vindicate land right stephanie patterson law student university new south wale 1 richtersveld community v alexkor ltd anor2001 3 sa 1293 landclaims court 22 march 2001 richtersveld community v alexkor ltd anor unreported supreme court appeal 24 march 2003 andalexkor ltd v richtersveld community unreported constitutional court south africa 14 october 2003 2 constitutionact 1996 3 south africa canada phrase aboriginal title used instead native title 4 see department land affair white paper south african land policy 1997 murphy j restitution land apartheid constitutional legislative framework visser roux giving back country south africa srestitution land right act 1994in context rwelamira werle g ed confronting past injustice approach amnesty punishment reparation restitution south africa germany durban butterworths 1996 90 5 fact drawn land claim court decision richtersveld community v alexkor ltd anor2001 3 sa 1293 lcc 28 29 6 ibid 30 31 7 n 6 8 1919 ac 211at 233 4 9 richtersveld community v alexkor ltd anor unreported supreme court appeal 24 march 2003 10 ibid 28 11 ibid 37 12 1992 hca 23 1992 175 clr 1 13 alexkor ltd v richtersveld community unreported constitutional court south africa 14 october 2003 14 ibid 60 15 ibid 69 |
Gabaldon, Theresa A. --- "In loco parentis: directorial duties to consumers" [2014] ELECD 863; in Paolini, Adolfo (ed), "Research Handbook on Directors' Duties" (Edward Elgar Publishing, 2014) 211.txt | gabaldon theresa loco parentis directorial duty consumer 2014 elecd 863 paolini adolfo ed research handbook director duty edward elgar publishing 2014 211book title research handbook director dutieseditor paolini adolfopublisher edward elgar publishingisbn hard cover 9781781004401section chapter 9section title loco parentis directorial duty consumersauthor gabaldon theresa number page 28abstract description decision made economic actor completely rational social psychologist long taught legal analyst often concede human being cognitive limit may routinely exploited variety way including method issue framed unsurprisingly corporate america paying psychologist social scientist year handily plumbed insight devising product marketing campaign result marketplace ad fast food diet aid compete position eye progressively overweight population billion dollar spent product child large parent may really want traditional view corporate law asserts corporation serf society via satisfaction consumer revealed preference dictate ultimate allocation resource contributed corporate investor worker manager recognition easily manipulable bound rationality self interest free severely weaken theory underpinnings corporation fact create preference satisfy corporate manager social science advisor deciding tsunami wealth go production consumption junk food violent video game |
Re Katherine Deirdre Peck (Napier) and Secretary, Department of Social Security [1992] AATA 336 (2 November 1992).txt | katherine deirdre peck napier secretary department social security 1992 aata 336 2 november 1992 administrative appeal tribunalre katherine deirdre peck napier secretary department social securityno w92 110aat 8357number page 16social securitycourtadministrative appeal tribunalgeneral administrative divisionp w johnston 1 deputy president maj gen k j taylor 1 member hotop 1 member catchwordssocial security sole parent pension whether member couple whether living marriage like relationship within meaning thesocial security act 1991 social security act 1991s 249 24 284 5 4administrative appeal tribunal act 1975s 37re secretary department social security villani 1990 aata 68 1990 20 ald 49re staunton smith secretary department social security 1990 21 ald 456re bourke secretary department social security decision 4184 2 march 1988 donald director general social service 1983 5 aln n185re stuart secretary department social security 1985 9 aln n38re lambe director general social service 1981 fca 171 1981 3 aln n72re robert secretary department social security 1987 12 ald 723re tomlin secretary department social security decision 5717 20 february 1990 hearingperth2 11 1992orderthe decision review affirmed decisionthe applicant seek review decision delegate respondent dated 19 november 1991 qualified sole parent pension spp unders 249 1 thesocial security act 1991 act decision followed determination applicant member couple living marriage like relationship mr charles tory original decision affirmed authorised review officer department social security department social security appeal tribunal ssat 18 december 1991 7 april 1992 respectively 2 applicant appeared person gave evidence tribunal mr tory mr elli departmental advocate appeared respondent tribunal accepted evidence document furnished pursuant tos 37of theadministrative appeal tribunal act 1975 exhibit 1 3 fact matter dispute evidence applicant mr tory challenged applicant two child aged 12 14 marriage robert george peck 1987 mr peck separated divorced applicant retaining custody child prefers use maiden name napier receipt sole parent pension time regularly completed sole parent review form review form dated 27 march 1992 t4 applicant stated mr tory described friend residing address would continue time similar information provided subsequent review form dated 20 june 1991 t5 13 september 1991 t6 applicant also advised department telephone mr tory paying 50 00 per week board lodging 18 september 1991 t7 suggestion applicant failed notify department relevant circumstance way breached obligation 284 5 act 4 response information 3 october 1991 department requested applicant mr tory complete assessment marriage like relationship form form mr tory advised paid 50 00 per week applicant well one quarter electricity gas bill share telephone bill described relationship emotionally supportive friendship indicated intention continue living applicant indefinitely applicant stated mr tory began sharing accommodation wanted time together eliminate travelling described relationship experimental explained defiance dysfunctional family history learning totrust respect honest continually struggle myemotional spiritual self taking full responsibility lifemeans self empowerment going back norelinquishing power another person exertion mypower another person either longer accept law whichstate someone else take responsibility way added experience marriage work theinterdependence subtly destructive breed condescension dishonesty lack trust respect position dependenthousewife one subservience inferiority 5 applicant subsequently attended interview officer department 19 november 1991 made statement elaborated view relationship mr tory follows would like hand power someone else value myindependence highly would let anything jeopardise myindependence used married felt beingeconomically dependent meant forfeiting freedom choice atpresent living relationship time tryingto preserve independence freedom strong emotionalbond mr tory relationship may gradually bedeveloping interdependent relationship 6 delegate respondent proceeded determine 20 november 1991 t15 applicant living marriage like relationship mr tory advised sole parent pension cancelled letter dated 19 november 1992 t16 rather curiously seems pre date determination delegate event applicant receipt payment appeal ssat progress t27 last payment received respect period ended 7 may 1992 since child subsisted maintenance payment mr peck family allowance saving respondent sought raise overpayment legislative background7 entitlement spp determined accordance 249 act dispute matter confined whether applicant qualifies within sub paragraph 1 relevantly provides 249 1 person qualified sole parent pension person member couple ii iii iv 8 expression member couple explained in 4 2 follows 2 subject subsection 3 person member couple forthe purpose act person legally married another person livingseparately apart person permanent basis b following condition met person living person opposite sex thisparagraph called partner ii person legally married partner iii relationship person partner thesecretary opinion formed mentioned subsection 3 amarriage like relationship iv person partner age consentapplicable state territory live v person partner within prohibited relationshipfor purpose ofsection 23bof themarriage act 1961 emphasisadded 9 issue decided therefore whether applicant mr tory marriage like relationship section 4 3 act set criterion addressed formation opinion whether relationship marriage like provides follows 3 forming opinion relationship 2people purpose paragraph 2 sub paragraph 2 b iii secretary regard circumstancesof relationship including particular following matter financial aspect relationship including joint ownership real estate major asset anyjoint liability ii significant pooling financial resource especially inrelation major financial commitment iii legal obligation owed one person respect theother person iv basis sharing day day household expense b nature household including joint responsibility providing care support child ii living arrangement people iii basis responsibility housework distributed c social aspect relationship including whether people hold married ii assessment friend regular associate peopleabout nature relationship iii basis people make plan engage joint social activity sexual relationship people e nature people commitment including length relationship ii nature companionship emotional support thepeople provide iii whether people consider relationship likely tocontinue indefinitely iv whether people see relationship marriage likerelationship emphasis added 10 sub section 4 4 provides 4 person claim receiving sole parent pension b particular residence period least 8 week principal home claimant recipient person ofthe opposite sex c claimant recipient legally married otherperson least one following paragraph satisfied child people also life residence ii people joint ownership residence iii people joint lessee residence originalduration lease least 10 year iv people joint asset total value 4 000 v people joint liability totalling 1 000 vi people time member couple vii people time shared another residence eachother secretary must form opinion claimant recipientis living person marriage like relationshipunless regard matter referred subsection 3 weight evidence support formation opinion thatthe claimant recipient living marriage likerelationship person 11 effect provision tribunal state uncertainty consideringall evidence unable decide question fact either way onthe balance probability woodward j mcdonald vdirector general social security 1984 fca 57 1984 6 ald 6 thesubsection requires decision person living marriage like relationship secretary department socialsecurity villani 1990 aata 68 1990 20 ald 49 58 tribunal unable reach clear conclusion therefore applicant entitled payment spp 12 4 6 act person member couple determination 24 force relation person latter section far relevant state 2 person living another person spouse otherperson genuine domestic basis b person legally married person c person opposite sex secretary satisfied person specialreason particular case treated member couple secretary may determine writing person betreated member couple purpose act character relationship13 tribunal would note outset 4 3 contain exhaustive list criterion addressed determining whether marriage like relationship exists staunton smith secretary department social security 1990 21 ald 456 weight given factor vary depending circumstance involved object identifying presence absence essential character marriage like relationship much depend forming requisite opinion instance matter degree impression bourke secretary department social security dec 4184 2 march 1988 moreover result consideration factor enumerated 4 3 inconclusive ambiguous 4 4 must applied determine whether marriage like relationship exists secretary department social security villani tribunal make following finding respect nature applicant relationship mr tory nature commitment social aspect relationship14 applicant mr tory view relationship marriage like strived maintain high degree autonomy independence equal balance power consider present marriage together since december 1990 describe relationship affectionate companionable harmonious try support one another emotionally exclusive sexual relationship exhibit strong commitment applicant said regard mr tory partner mean companionship someone talk transcript p 39 applicant mr tory indicated desire relationship continue indefinitely acknowledged respect either change direction life cease run parallel relationship may last present see continuing indeterminate time future 15 applicant hold married regard mr tory husband similarly mr tory view married comfortable described applicant partner close friend relative regard couple applicant said would strange invited without mr tory suppose present couple thebeginning relationship thing changedas go along yes probably expect invited together 16 share social activity applicant told tribunal make plan basis preference andinterests interest shared one take parttogether person follows wish thisway path sometimes converge sometimes diverge aremany thing enjoy together fewactivities find prefer 17 social aspect relationship fact clearly viewed friend relative couple suggestive marriage like relationship nature commitment also prominent indication character relationship applicant mr tory regard partner loving relationship intend continue respect relationship undoubtedly marriage like ideal sense notion nature household18 separate living area within house applicant mr tory share although particular area use recreation applicant prepares meal weekday weekend child stay father mr tory cook applicant share responsibility housework applicant described organisation home follows t13 p 56 four u living house responsible far able concerning child belonging relationship one another aparent see overall responsibility someaspects communal living 19 nature household somewhat inconclusive could interpreted either light though absence significant separation living area shared responsibility household task consistent marriage like relationship particular context couple also demonstrates carefully thought arrangement party quite discrete zone privacy end significance factor quite equivocal lending weight neither side responsibility children20 significant difference applicant relationship mr tory notion marriage relates mr tory interaction child financial aspect relationship respect former ex husband mr peck share responsibility providing care support child make necessary decision together mr tory never assumed father role applicant child say upbringing stated p 55 transcript coming see absolutely noresponsibility whatever child beyond adult would given emergent need care kindness see myselfbecause relationship special responsibility towardsthe child 21 applicant emphasised see parenting role entirely separate relationship mr tory expectation mr tory take interest child feel strongly position authority child home 22 therefore apparent mr tory position respect child merely adult would act called upon assistance cannot said relationship lack responsibility child consistent notion applicant marriage like relationship financial aspect relationship23 february 1992 applicant mr tory purchased property tenant common owning share two third one third respectively intention structuring arrangement manner define share property ensure interest child protected excluding right survivorship would flow joint tenancy mortgage payment deducted applicant account mr tory pay one quarter amount due cheque applicant preference two separate account debited mortgage payment bank found unacceptable acquisition common home albeit tenant common rather joint tenant indicates association intended stable permanent 24 day day household expense shared similar proportion gas electricity telephone charge although account applicant name personal item purchased separately car responsible expense respect 25 applicant mr tory hold one joint bank account contains fund renovation home significant pooling financial resource applicant mr tory hold insurance policy relating one another executed will one another favour consideration issues26 applicant main contention spp paid order support single parent financially need assistance diminished chosen relationship mr tory assume responsibility financial otherwise applicant child strong desire retain independence autonomy protect child imposition another person authority applicant described view basic difference relationship marriage responsible one another neither u handsover responsibility happiness istraditionally accepted objection characterisation relationship marriage like based upon experience one party assumes dominant role detriment individuality illustrative divergence opinion arise perception marriage donald director general social service 1983 5 aln n185it said traditional role husband wife breadwinner andhousewife respectively longer regarded necessarycharacteristics marriage subservience one party tothe respect aspect relationship 27 applicant concern deprived financial assistance would thereby forced position dependence subservience mr tory would likewise forced assume responsibility child result unacceptable applicant mr tory 28 assessment relationship purpose act fraught difficulty involves diverse concept subjective judgment stuart secretary department social security 1985 9 aln n38 alleviated degree enumeration criterion 4 3 act predecessor 3a social security act 1947 however factor considered merely reflect interpretation notion marriage de facto spouse developed prior inclusion relevant provision act secretary department social security villani 29 although existence substantial joint investment home undoubtedly important consideration conclusive lambe director general social service 1981 fca 171 1981 3 aln n72 party donald director general social service owned home joint tenant executed favour applicant responsible household task including party laundry life otherwise separate romantic attachment sexual relationship shared social activity tribunal held lack exclusivity relationship absence emotional sexual involvement led conclusion insufficient commitment one another uncharacteristic marital relationship given applicant mr tory emotional exclusive involvement purchase home jointly albeit tenant common assumes greater weight consideration whether marriage like relationship exists indicates degree permanence 30 said robert secretary department social security 1987 12 ald 723at 725 tribunal must approach matter considering facetsof interpersonal relationship applicant otherperson must search essential characteristic themarital relationship commitment applicant theother person greater extent manner qualitativelydifferent commitment either anyone else 31 tribunal adopted approach tomlin secretary department social security decision 5717 20 february 1990 m tomlin son moved mr ward home providing housekeeping service paying board m tomlin began sharing bedroom mr ward month later financially independent present married view relationship de facto great deal co operation assisted one another care respective child eventually mr ward asked m tomlin marry tribunal found decided marry held back committing permanently lack permanent commitment relationship circumstance led tribunal conclude marriage like relationship living together bona fide domestic basis noted m tomlin time acquired interest home joint asset liability 32 light evidence tribunal balance view applicant relationship mr tory marriage like within meaning subsection 4 2 3 act emotional involvement degree stability permanence indicated purchase home together outweigh lack financial interdependence shared parental responsibility financial independence usual characteristic marriage fatal classification stuart although party retained substantial degree independence financially separate interest tribunal nevertheless found significant emotional romantic commitment necessitated conclusion applicant living married person 33 though connotation applicant see inappropriate tribunal find description relationship marriage like fitting notwithstanding applicant belief degree uncertainty inherent relationship mr tory free part either change direction donald director general social service tribunal reiterated comment robert remarked marriage cease essential characteristic ofcommitment one another community accepts isreasonable party able dissolved 34 tribunal respect sincerity applicant conviction appreciates difficulty experienced trying accommodate situation within present stricture act end whilst acknowledging relationship mr tory built large extent respect individuality independence autonomy integrity tribunal swayed factor property arrangement degree going caring commitment conclude balance applicant member couple living marriage like relationship therefore qualify payment spp act 35 decision review affirmed |
Wings Residential Resort & Spa [2021] QBCCMCmr 429 (10 September 2021).txt | wing residential resort spa 2021 qbccmcmr 429 10 september 2021 last updated 7 october 2021adjudicator orderoffice commissionerfor body corporate community managementcitation wing residential resort spa 2021 qbccmcmr 429parties paola facenda garry heath ivana pertile applicant body corporate wing residential resort spa ct 32967 respondent ronny pauliz affected person scheme wing residential resort spa ct 32967jurisdiction body corporate community management act 1997 qld act section 227 1 b and229 3 body corporate community management accommodation module regulation 2020 accommodation module application 1352 2020decision date 10 september 2021decision p dowling adjudicatorcatchwords associate whether candidate election associate service contractor letting agent whether body corporate elected ineligible person voting member committee act s 99 309 accommodation module 11 ordermade 1 ronny paulitz ineligible elected body corporate wing residential resort spa ct 32967 treasurer body corporate committee agm held 26 october 2020 office mr paulitz position committee vacant mr paulitz ineligible hold position 2 respect outcome sought dismissed reason decisionoverview 1 agm held 26 october 2020 body corporate elected ronny paulitz treasurer body corporate committee 2 5 november 2020 applicant made adjudication application commissioner body corporate community management disputing election applicant contend mr paulitz ineligible elected voting member committee resign member committee 3 written submission made respect outcome sought commissioner referred application determination department adjudication 1 analysisjurisdiction 4 submission mr paulitz raised issue relating legitimacy application whether outcome sought determined department adjudication 5 firstly mr paulitz submits applicant make attempt resolve matter internally attempt department conciliation argues application rejected pursuant tosection 241 1 c act respect argument note commissioner satisfied applicant made reasonable attempt resolve dispute internal dispute resolution consider matter subject department conciliation circumstance consider mr paulitz raise argument suggest either issue relevant determination application 6 secondly mr paulitz submits adjudicator cannot direct body corporate request committee member resign committee applicant sought outcome claim mr paulitz eligible elected member committee body corporate agm question mr paulitz eligibility elected body corporate voting member committee substantive issue dispute remedy proposed applicant applicant view claimed contravention overcome mr paulitz resigning committee internal remedy 2 7 respect substantive issue applicant refer tosection 11of 2008 accommodation module 3 section 309 act committee mr paulitz made submission respect applicability provision substantive issue 8 section 99of act provides composition election committee provides member committee chosen way provided regulation module section 11of 2008 accommodation module specified eligibility requirement voting member committee candidate election body corporate agm mr paulitz nominate elected accordance relevant provision subdivision 1 division 2part 2chapter 3 2008 accommodation module givensection 11 body corporate could accept mr paulitz candidate election elect mr paulitz satisfied met eligibility requirement 9 evident submitted minute agm body corporate satisfied mr paulitz met requirement applicant claim reaching conclusion body corporate contravened act essence application whether body corporate election mr paulitz treasurer agm contrary act reason argued applicant question whether election contravened act subject dispute act 4 department adjudicator jurisdiction make order equitable circumstance resolve dispute claimed contravention act 5 applicant correct mr paulitz entitled hold office voting member committee 10 thirdly minute agm show body corporate decided executive member position treasurer electing mr paulitz unopposed 6 applicant challenge decision create dispute act applicant owner mr paulitz however create dispute applicant body corporate 7 mr paulitz would directly materially affected outcome sought affected person application 8 11 therefore satisfied dispute chapter 6 act applies view department adjudicator jurisdiction make order resolve issue dispute whether body corporate contravened act electing mr paulitz voting member committee submission 12 applicant submit reference section 309 act andsection 11of 2008 accommodation module mr paulitz ineligible elected wife joanne gribble associate accor service contractor scheme 9 13 evident submission accor caretaking service contractor csc scheme 10 m gribble employee accor m gribble employment accor confirmed sean dumigan group stratum manager asset management apartment lease accor letter dated 28 january 2021 submitted committee 14 applicant refer legal advice abjk lawyer 2019 applicant provide advice mr paulitz submitted copy email andrew kyle abjk lawyer sent 6 november 2019 melanie taylor office body corporate manager saying husband employee caretaker letting agent eligible committee letter mantra omits definition associate defined 309 act definition broad require direct relationship person associated someone else series relationship defined section traced person spouse employee company clearly associated company within meaning section 15 committee refers information solicitor 15 july 2020 committee provide advice mr paulitz submitted copy email tom robinson omb solicitor sent 15 july melanie taylor saying husband owner employee accor would necessarily deemed associate therefore ineligible holding committee position reason follows section 11of accommodation module state person eligible committee e owner becomes ineligible person amongst thing associate service contractor letting agent section 309 act defines term associate person individual deemed associate fall one category listed within section 309 2 view husband fall one category relating relationship accor become ineligible simply partner associate accor 16 reliance information committee submitssection 11 2 2008 accommodation module apply committee question whether intent legislation circumstance mr paulitz ineligible committee submits specific use non plural word type section 309 1 b mean must series one type relationship person deemed associate type relationship must mr paulitz would associate m gribble employed mr paulitz assist work committee add section 309 intend deny owner right member committee simply different type relationship person associated csc deny mr paulitz position committee direct associate csc take away right lot owner committee submits reference tosection 53of 2008 accommodation module matter involving csc may considered direct indirect conflict interest due m gribble employee accor mr paulitz would need disclose conflict refrain voting matter 17 mr paulitz submits associate service contractor letting agent section 309 1 2 act apply relationship kind partnership service contractor letting agent expressed section mr paulitz state wife employee accor would associate service contractor letting agent virtue employer employee relationship discussion 18 section 11of 2008 accommodation module provided eligibility requirement voting member committee mr paulitz eligible voting member undersection 11 1 co owner lot 71 question whether mr paulitz ineligible voting member time agm claim associate accor givensection 11 2 b section 11 2 b provided person otherwise eligible subsection 1 voting member committee ineligible voting member committee person associate body corporate manager service contractor letting agent 19 associate person mean someone else person associated section 309 11 section 309 1 2 provides 1 act person associated someone else relationship type section applies exists b series relationship type section applies traced another person person 2 section applies relationship following type marriage de facto relationship civil partnership b relationship ascendant descendant including relationship parent child relationship person parent grandparent common c partnership relationship employer employee e fiduciary relationship f relationship person 1 accustomed obligation whether formal informal act accordance direction instruction wish g relationship corporation executive officer corporation h relationship corporation person position control substantially influence corporation conduct 20 context dispute question whether mr paulitz associate accor csc scheme time agm 21 claimed nothing suggest relationship type mentioned section 309 1 existed accor mr paulitz time agm evident relationship employer employee existed accor m gribble type relationship listed section 309 2 22 section 309 1 b broader term subsection 1 subsection 1 b make provision series relationship type listed section 309 2 relevant dispute relationship listed section 309 2 2 23 committee argues specific use non plural word type section 309 1 b mean must series one type relationship person deemed associate type relationship must consider general word provision read way aware extrinsic material support contention consider section achieves context purpose construed narrowly argued committee mr paulitz 24 view time agm series relationship type listed section 309 2 could traced accor mr paulitz m gribble relationship marriage mr paulitz m gribble relationship employer employee accor m gribble 25 therefore consider mr paulitz associate accor scheme csc time agm mr paulitz therefore ineligible elected body corporate voting member committee conclusion 26 reason made order effect declared office mr paulitz position committee vacant mr paulitz ineligibility hold position 27 outcome sought otherwise dismissed 28 mr paulitz asked application dismissed section 270 1 c act basis finding given order made 29 mr paulitz also claim applicant breached section 297 act consider alleged statement material issue determined application consider necessary investigate make finding statement made even appropriate make finding whether person provided false misleading information could determine imposition penalty nothing prevent person pursuing matter thejustices act 1886 1 mr paulitz committee owner five lot made submission commissioner applicant replied submission 2 accommodation module 36 2 c 3 2008 accommodation module repealed 1 march 2021 repeal affect previous operation 2008 accommodation module applies issue raised dispute statutory instrument act 1992 s 7and14 act interpretation act 1954 20 4 act s 228 229 5 act 276 1 6 2008 accommodation module 26 1 7 act 227 1 b 8 affected person definition act schedule 6 9 within meaning service contractor act 15 10 caretaking service contractor definition act schedule 6 11 associate definition act schedule 6 |
Camp v State of Queensland [2001] QSC 352 (28 September 2001).txt | camp v state queensland 2001 qsc 352 28 september 2001 last updated 28 september 2001supreme court queenslandcitation camp v state queensland 2001 qsc 352parties paul jason camp plaintiff applicant vstate queensland defendant respondent file 313 1999division trialproceeding applicationoriginating court supreme court townsvilledelivered 28 september 2001delivered townsvillehearing date 18 september 2001judges cullinane jorder application dismissed cost assessedcatchwords limitation action personal injury extension time pl injured 27 march 1986 pl later found vertiginous symptom complete hearing loss right ear two third loss left pl continued employment unable work around noisy machinery pl result increasing vertiginous condition lost capacity continue employment whether reasonable person similarly circumstanced pl taken appropriate advice would brought action respect loss hearing earlier vertiginous symptomscounsel turnbull applicantm drew respondentsolicitors giudes elliott applicantcrown solicitor respondent 1 plaintiff seek extension time within institute proceeding defendant respect injury sustained 27thmarch 1986 whilst employee department main road writ summons contains endorsement considerably wider includes claim loss hearing understand associated alleged exposure excessive noise level significant period however application conducted upon basis condition plaintiff suffers resulted incapacity work result specific incident 27thmarch 1986 2 date plaintiff born 23rdmay 1963 working offsider operator drilling rig engaged drilling hole foundation bridge bruce highway 3 plaintiff case required bring head close proximity shaft drilling rig whilst removing dirt hole drilled loud explosion occurred force knocked ground plaintiff saw drill stopped turning explosion plaintiff relies upon statement inspector employed time main road department expressed opinion statement worker compensation board time time shaft break drilling rig shearing pin also break explosion result plaintiff claim ought required place head proximity operating drill given risk explosion occurred time time machine turned could remove soil plaintiff asked whether reason could turned allow said really 4 evidence subject quite slight contended defendant requirement 31 2 b made think material although fairly perfunctory sufficient justify finding favour plaintiff issue 5 plaintiff left school age 15 educated ingham special school anything suggests anything normal intelligence although might inferred towards bottom range 6 following incident 1stapril plaintiff ceased work referred ear nose throat specialist dr wilson report dr wilson worker compensation board file court plaintiff deposes fact dr wilson told cease work recovered also informed lost hearing right ear completely lost 2 3rdsof hearing left ear would need future wear hearing aid dr wilson according plaintiff told cease working noisy machinery continued left ear would pop plaintiff said cross examination told would lose hearing worked around machinery work four month 7 returned work wearing ear protection whilst went back broadly work avoided exposure drilling rig although worked machinery relatively short period transferred position maintenance section department operation ingham appears plaintiff said evidence discussed dr wilson said superior change work occurred following accident taken consequence lose income result change employment maintenance section work main involved driving tractor pulling slasher course slashing grass roadside tractor enclosed cabin air conditioned plaintiff commenced wear hearing aid time accident wearing one commenced maintenance work 8 although plaintiff refers episode tinnitus vertigo together episode vomiting nausea immediate aftermath accident dr wilson refer indeed report suggests episode vertigo 9 however clear plaintiff said evidence court plaintiff suffered thereafter dizzy spell nausea vomiting became frequent severe time progressed result referred firstly dr robinson ear nose throat specialist subsequently dr laing also specialist 10 according report dr robinson 8thseptember 1988 plaintiff complaining episode light headedness impairment balance lasting second hearing substantially impaired time right ear described dead left profound sensori neural loss deteriorated last preceding two year dr robinson saw little later time diagnosed plaintiff suffering probably perilymph leak could result total deafness unexplored say told plaintiff time plaintiff expressed reluctance anything done matter 11 thereafter appears dr laing based cairn entered scene saw plaintiff sometime latter part 1989 plaintiff complained tinnitus vertigo dr laing relates plaintiff steadily losing hearing left ear suffered immediate total sensori neural loss right ear time incident 12 dr laing carried bilateral tympanotomies 7thdecember 1989 course found small fistula left ear easily repaired huge fistula right repaired also vertigo settled time operation plaintiff vertigo 13 however symptom returned deteriorated operation carried 18thseptember 1990 nature revision tympanotomy right ear small leak found graft applied 14 plaintiff six week work following procedure earlier period work received income first period work received worker compensation payment period work following two procedure received social security payment 15 according plaintiff following second operation frequency symptom suffered dizziness vomiting nausea decreased considerably nonetheless continued suffer time time occasion evidence reveals treatment plaintiff received symptom set chronology defendant handed court challenge 16 plaintiff say difficulty performing work regarded secure employment 17 late 1997 early 1998 hearing appeared getting worse consulted general practitioner went ingham hospital outpatient early 1998 dizzy spell vomiting nausea got worse suffered black 18 number report number medical practitioner including specialist dealing plaintiff condition time evidence satisfies plaintiff result vertiginous condition consequence incident subject application lost capacity continue employment suggestion successful surgery might able return work force although medical practitioner hold view capable working future satisfied plaintiff aware may lost earning capacity result injury sustained incident 14thapril 1998 one year prior issue writ 19 issue arises case whether reasonable person similarly circumstanced plaintiff would knowing plaintiff knew knowledge matter plaintiff must taken mean knowledge taken appropriate advice fact regarded showing right action would reasonable prospect success resulting award damage sufficient justify bringing action ought interest bring action plaintiff persuasive onus regard 20 mention point area dispute issue fact 21 report ingham hospital board worker compensation board dated 9thfebruary 1987 following appears man seen 1974 specialist ent report showed normal left auditory acuity complete congenital deafness right ear presented 1stapril 1986 deafness left ear working noisy machinery far tell record vertigo nausea vomiting evidence deafness episodic 22 appears record ingham hospital going back 1974 destroyed year ago 23 evidence worker compensation board obtained record ingham hospital prior assessment made ear nose throat board referred letter plaintiff worker compensation board 26thmay 1987 plaintiff disability assessed 47 left sensori neural hearing reference right ear 24 counsel plaintiff put probably matter great deal overall assessment plaintiff damage person existing loss hearing right ear sustained significant loss hearing left ear result defendant negligence whether defendant conduct cause total loss right ear significant loss left ear nonetheless must necessarily difference amount damage recoverable 25 plaintiff parent deny adamantly impairment hearing prior incident would 11 time examination 1974 mr camp plaintiff mother gave evidence couple occasion plaintiff taken hospital build wax ear removed 26 difficult draw firm conclusion matter absence documentation relating 1974 examination noted ear nose throat specialist saw plaintiff following 1986 incident subject discussed speak loss hearing right ear occurring time explosion dr wilson report suggests hearing loss result exposure excessive noise rig period little surprising congenital nature detected one ought expected plaintiff mother would aware complete loss hearing one plaintiff ear childhood adolescence conceivable record incorrect way temporary impairment plaintiff hearing come recorded permanent congenital loss hearing purpose application propose proceed upon basis plaintiff ascribe whole loss hearing incident 1986 although fact dispute irrelevant question court discretion 27 clear expiration two year following 1986 incident plaintiff aware lost whole hearing one ear substantial part hearing ear work around noisy machinery resulted change nature employment also suffering vertigo associated symptom although seen doctor 28 plaintiff sought medical advice vertiginous condition 1988 told could lose hearing condition explored fact two operation obtained significant reduction vertiginous condition although continued suffer vertigo time time able continue employment recent serious deterioration 29 nonetheless end two year period plaintiff aware suffered substantial loss hearing suffering significant ongoing symptom vertigo nausea also aware restriction capacity work area previously worked thereafter alteration position recent deterioration reduction vertigo referred 30 inpizer v ansett australia ltd ca qld appeal 6807 1998 unreported thomas j addressing general question arises case said paragraph 20 one end spectrum case latent symptom apparently trivial injury followed eventual discovery serious condition plainly justify extension appeal court could readily detect error refusal grant end spectrum case patently serious orthopaedic injury productive observable economic loss followed belated realisation consequence likely worse contemplated justify extension appeal court could likewise readily correct erroneous decision somewhere extreme range case different mind might reasonably form different assessment level plaintiff knowledge whether reasonable person contemplated 30 b endowed knowledge taken appropriate advice would brought proceeding 31 case issue addressed spectrum particular side dividing line case fall 32 whilst possible good deal sympathy plaintiff ass genuine person worked hard life recently forced workforce relatively little education think fact aware described prior expiration two year period following accident stand way order made case think reasonable person plaintiff circumstance attribute background ought realised acting interest taken proper advice ought instituted proceeding would undoubtedly advised whilst would recovered damage past economic loss beyond already compensated impairment earning capacity would result significant award future economic loss nature extent disability significant award general damage would made overlook reaching finding fact plaintiff would repay worker compensation board significant sum including lump sum payment 11 000 substantial loss hearing restriction employment quite apart symptom suffering ought led seek appropriate advice would satisfied resulted action instituted advice would involved medical advice vertigo associated symptom legal advice position generally 33 also seems plaintiff two year recent deterioration similar position well 14thapril 1998 ought reasonably acting interest instituted proceeding taking appropriate advice 34 although expressed matter positively correct say plaintiff satisfied reasonable person position would taking appropriate advice instituted proceeding 35 discretionary matter raised accept loss hospital record would disadvantage advancing claim plaintiff already impairment hearing however convinced plaintiff otherwise made case extension factor lead refusal application clear would great impact damage case may well avenue inquiry open defendant issue necessary repeat comment made earlier subject paragraph 26 also touch issue 36 application dismissed cost assessed |
Grant v Grant; Grant v Grant (No. 3) [2021] NSWSC 1 (5 January 2021).txt | grant v grant grant v grant 3 2021 nswsc 1 5 january 2021 last updated 5 january 2021supreme courtnew south walescase name grant v grant grant v grant 3 medium neutral citation 2021 nswsc 1hearing date decision chamber paper date order 5 january 2021decision date 5 january 2021jurisdiction equitybefore slattery jdecision defendant ordered pay cost plaintiff estate recovery proceeding indemnity basis plaintiff ordered pay cost estate family provision proceeding indemnity basis liberty apply granted catchword cost indemnity cost application indemnity cost brought successful party following judgment delivered 24 september 2020 whether indemnity cost awarded basis judgment finding significant misconduct unsuccessful party case cited baillieu knight frank nsw pty ltd v ted manny real estate pty ltd 1992 30 nswlr 359degmam pty ltd liq v wright 2 1983 2 nswlr 354fountain selected meat sale pty ltd v international produce merchant pty ltd 1988 81 alr 397grant v grant grant v grant 2 2020 nswsc 1288harrison v schipp 2001 nswca 13medsara pty ltd v sande 2005 nswca 40westpac banking corporation v ollis 2007 nswsc 1008category costsparties proceeding 2017 316190 estate recovery proceeding representative estate alan grant seth grantfirst defendant nerez grantsecond defendant kashaya grantin proceeding 2018 139174 family provision proceeding plaintiff nerez grantexecutor gwynneth grant estate seth grantrepresentation counsel solicitor estate estate recovery proceeding gwynneth grant estate family provision proceeding chantelle tabone teece hodgson ward solicitorsfirst defendant estate recovery family provision proceeding personsecond defendant estate recovery proceeding personfile number 2017 00316190 2018 00139174publication restriction nojudgmentthis court third judgment two related proceeding deal successful party claim indemnity cost court second judgment contains court principal finding conclusion disposing proceeding grant v grant grant v grant 2 2020 nswsc 1288 judgment read court second judgment event matter person proceeding referred judgment way court second judgment dr seth grant representative estate late dr alan grant successful plaintiff estate recovery proceeding defendant m nerez grant m kashaya williams behalf mother estate successfully defended family provision proceeding applies indemnity cost behalf estate proceeding based nerez grant kashaya williams misconduct proceeding nerez grant kashaya williams lost respective proceeding reason set court second judgment reason court make order cost proceeding nerez respect family provision proceeding nerez kashaya respect estate recovery proceeding next question determination whether order cost made indemnity basis second judgment court made serious finding nerez strongly adverse finding kashaya authority stand new south wale finding misconduct automatically attract indemnity cost order inharrison v schipp 2001 nswca 13 court appeal overturned order made trial judge indemnity cost following basis 132 139 132 trial judge correctly observed discretion cost extended ordering cost indemnity basis appropriate circumstance cited number case return said case particular circumstance involve relevant delinquency part cameron harrison interest finding mr cameron mr harrison manipulated mr schipp took unconscientious advantage vulnerability paragraph 646 652 judgment detail extent mr cameron mr harrison took unfair unconscionable advantage mr schipp weakness paragraph 634 includes finding least early 1988 cameron mr harrison seriously intend develop mary street generally paragraph 635 645 set event occurred paragraph 659 676 examine event number perspective course every case unconscionable conduct breach fiduciary obligation found ground plaintiff entitlement indemnity cost defendant discretion court cost exercised judicially say upon proper ground court lightly depart standard practice awarding cost warman international ltd v dwyer 1995 hca 18 1995 182 clr 544at 560 mason cj brennan deane dawson gaudron jj made clear making discretionary order fiduciary depend upon circumstance case including power obligation fiduciary relationship power obligation subject matter claim cf jones v mortgage acceptance nominee 1996 142 alr 461 approach required taken dealing unconscionable conduct found circumstance case important present however case view finding paragraph 241 253 383 423 424 431 456 particularly 433 434 596 601 604 606 607 638 641 648 649 652 670 plaintiff claim indemnity cost cameron harrison interest view made case special unusual circumstance constituted defendant unconscionable conduct breach fiduciary obligation justify making order cameron harrison interest pay mr schipp cost indemnity basis 133 passage case honour cited referred delinquency using word otherwise conduct proceeding degmam pty ltd liquidation v wright 2 1983 2 nswlr 354and smith ex parte rundle 2 1991 6 war 299 referred involving relevant delinquency citation oshlack v richmond river council 1998 hca 11 1998 193 clr 72at 89 case spoke width discretion without referring delinquency one referring need special unusual feature case degmam pty ltd liquidation v wright 2 defendant suffered special order cost made deliberately false allegation defence prolixity prevarication grossly prolonged litigation immediately passage reason last set trial judge set smith ex parte rundle 2 underlining emphasis order cost solicitor client indemnity basis normally made circumstance conduct party order made connection litigation deserving criticism 301 134 mr harrison contrasted relevant delinquency regard trial judge apparently exercised discretion delinquency mr cameron mr harrison acted unconscionably breach fiduciary duty submitted view correctly delinquency honour acted delinquency conduct proceeding case cited number case mr harrison referred regarded warranting special order cost said correctly warman international ltd v dwyer 1995 hca 18 1995 182 clr 544at 560 concerned cost order account defaulting fiduciary indeed cost order inwarman international ltd v dwyerwas special order see 1992 46 ir 250at 262 derrington j 23 february 1992 unreported ca 1995 hca 18 1995 182 clr 544at 570 hc 135 mr schipp response emphasised width discretion cost said relevant delinquency within case even trial judge acted regard much time trial taken harrison propounding authenticity document sic must known false said open honour act regard unconscionable conduct breach fiduciary obligation delinquency conduct proceeding order ensure restitution defrauded beneficiary complete seehagan v waterhouse 2 1992 34 nswlr 400 136 trial judge exercise discretion regard time taken mr harrison propounding false document otherwise regard delinquency conduct proceeding hagan v waterhouse 2 provides support indemnity cost mean providing complete restitution otherwise regard substantive unconscionable conduct breach fiduciary duty exercising discretion cost regard would view correct unconscionable conduct breach fiduciary duty lead compensatory relief cost normal basis must established special order cost opinion honour exercise discretion wrong principle 137 discretion must exercised true evidence messrs cameron harrison accepted indeed found given false evidence propounded false document think delinquency approaching considered justify special order cost degmam pty ltd pty ltd liquidation v wright 2 departure ordinary basis cost assessed litigant otherwise warranted 138 necessary circumstance mr schipp came put money two property leave messrs cameron harrison gone particular exploration understanding influence working upon satisfied case appellant properly advised known would found liable fountain selected meat sale pty ltd v international produce merchant pty ltd 1988 81 alr 397 401 court time mr schipp money wasted totally frivolous thoroughly unjustified defence baillieu knight frank nsw pty ltd v ted manny real estate pty ltd 1992 30 nswlr 359at 362 use expression relevant area 139 departure settled practice cost party party basis discretionary beyond need sufficient special unusual feature case fixed rule laid matter thought justify collected sheppard j colgate palmolive pty ltd v cussons 1993 fca 536 1993 46 fcr 225at 233 4 present case sufficient special unusual feature present trial judge order cost set aside far provided cost indemnity basis 140 trial judge exercise discretion regard time taken mr harrison propounding false document otherwise regard delinquency conduct proceeding hagan v waterhouse 2 provides support indemnity cost mean providing complete restitution otherwise regard substantive unconscionable conduct breach fiduciary duty exercising discretion cost regard would view correct unconscionable conduct breach fiduciary duty lead compensatory relief cost normal basis must established special order cost opinion honour exercise discretion wrong principle harrison v schipphas applied deny litigant indemnity cost even proved unconscionable conduct breach fiduciary duty inmedsara pty ltd v sande 2005 nswca 40 121 122 court appeal denied indemnity cost party found guilty unconscionable conduct said relevant principle expressed giles ja inharrison v schipp 136 stated unconscionable conduct breach fiduciary duty ordinarily lead compensatory relief cost ordinary basis must established special cost order even fraud deplorable conduct established litigation ordinarily lead order cost ordinary basis unless something established fraud often involve fraudulent party falsely denying fraud court lengthening proceeding may attract order indemnity cost presence fraud dishonesty attract application principle example asharrison v schippstates 138 order indemnity cost may justified party properly advised known would found liable fountain selected meat sale pty ltd v international produce merchant pty ltd 1988 81 alr 397 401 1988 fca 202 court time innocent party money wasted totally frivolous thoroughly unjustified defence baillieu knight frank nsw pty ltd v ted manny real estate pty ltd 1992 30 nswlr 359at 362 1992 10 acsr 537 party propounding defence must known false indemnity cost order may made westpac banking corporation v ollis 2007 nswsc 1008at 7 11 seth grant resists conclusion making cost order ordinary basis appropriate seek distinguishharrison v schipp submitting case likedegmam pty ltd liq v wright 2 1983 2 nswlr 354 degmam submits relevant delinquency case equivalent adjudged holland j indegmamas warranting indemnity cost order worthwhile examine indegmamthat holland j regarded warranting condemnation indemnity cost order holland j set 358 following passage next question therefore whether case made special order think wish repeat say reason judgment merit defence cause action put forward defendant manner conducted course litigation witness box sufficient say allegation fact made basis defence cause action opinion false deliberately concocted attempt deny plaintiff right shift blame legal liability plaintiff second cross defendant well conducted proceeding multiplying allegation upon allegation prevaricating witness box grossly prolong litigation thereby cause party incur liability solicitor client cost far beyond could reasonably expected incur litigation genuine issue discretion court cost said many time exercised judicially say upon proper ground court lightly depart standard practice awarding cost suggested absence precedent order present reason hesitating make order view proper application principle justifies order indemnity cost nerez grant proceeding kashaya williams estate recovery proceeding proceeding party estate recovery proceeding principally concerned setting aside transfer killcare property nerez grant implemented transfer purported use power attorney dr grant give effect claimed dr grant wish expressed letter 10 april 2016 purportedly signed aspect estate recovery proceeding involve defendant propounding costly length must known false document transaction must well known could never justified nerez purported use power attorney dr grant transfer killcare property court found principal judgment 328 329 never proper basis use power attorney way conduct honest person would circumstance 328 nothing power attorney authorised nerez make substance gift kashaya signed 900 000 transfer evidence nerez kashaya ever discussed consideration paid dr grant court infers intention paid benefit mortgage taken benefit enquiry made ascertain whether kashaya mean pay money 900 000 transfer substance gift 329 nerez take trouble read power attorney time seek advice going ahead transfer killcare property kashaya substantial nature transaction relative dr grant asset time gaining substantial benefit result honest person position would checked power conferred power attorney obtained advice whether authorised use power attorney circumstance failure badge dishonesty transaction centrepiece nerez grant kashaya williams defence case fabricated letter 10 april 2016 continuously said letter direct evidence supporting contention dr grant wanted transfer property kashaya williams nerez grant would somewhere live nerez grant kashaya williams defence first advanced letter dr grant estate put expense seeking adjourn proceeding specifically obtain expert handwriting evidence show document forgery evidence obtained court found justified conclusion letter forgery one nerez grant kashaya williams must responsible 10 april 2016 forgery evidence anyone control fabricated copy document court found fabricator joined propounding court must known forgery confronted expert evidence neither sought defend 10 april 2016 document expert evidence despite many demand could ever produce original 10 april 2016 document could satisfactorily explain absence original provenance copy adhered convenient fantasy integrity document yet reason pointed primitively wrought artefact fraud court finding principal judgment go even justify conclusion whole timing secrecy surrounding transfer killcare property show well aware transaction could never justified subjected open scrutiny court said 323 324 323 remains satisfactory explanation suddenly necessary nerez kashaya orchestrate transfer killcare property 29 september 2017 seth visit father september peninsular village coming nerez attention nerez power attorney enduring guardianship respect father year prior september 2017 act feared father would taken control inference strongly reinforced electronic fund transfer nerez executed 4 october 2017 found seth picked father wyong aged care 324 court infers timing nerez kashaya suspected would unlikely able legitimately justify seth court claim dr grant gifting killcare property decided take asset power whilst others unaware involved instructing solicitor effecting transaction m healy secrecy executed transaction reason infer knew improvident dr grant point view would survive scrutiny imperative secrecy compounded perfected transaction day 5 october 2017 well dr grant care notice nerez power attorney revoked decision proceed secretly circumstance transaction benefited badge joint dishonesty transaction transaction dominated court consideration consumed bulk time resource estate recovery proceeding properly advised defendant estate recovery proceeding must known chance success propounding defence must known false indemnity cost order made nerez grant essential contention family provision proceeding good relationship mother result worthy inclusion within mother testamentary bounty outcome case plaintiff losing claim provision estate whole premise claim good mother daughter relationship false must known nerez grant false court found principal judgment 299 profound aggression daughter mother case category properly advised nerez grant must known chance success evident court finding principal judgment 297 299 claimed mother daughter relationship 297 mr grant afraid daughter nerez good reason nerez behaved callous brutality towards parent decade seen nerez physical violence towards dr grant personally object nerez constant hectoring harassment money seen nerez sequester dr grant dominate dr grant use willingness give money treasury mr grant fearful nerez taken seth marguerite grant offer seeking respite cambridge first month 2011 one worst period nerez harassment 298 nerez conduct decade calculated make mr grant fearful compliant demand effect nerez treated mother creature frightened coerced wanted vestige mother daughter affection long disappeared nerez mr grant stung constant pain nerez drug taking theft aggression unpredictability shame brought upon family mr grant decision keep daughter arm length entirely understandable 299 nerez omitted mr grant offend community standard would expected testator position child difficult relationship estrangement parent uncommonly obtain family provision relief case category involves decade actual aggression nerez towards mother afraid daughter nerez grant false allegation quality relationship mother represent debatable proposition bore resemblance true relationship fear domination daughter mother nerez grant false allegation relationship mother permeated many aspect family provision proceeding lengthened considerably example markedly expanded cross examination seth tansin grant warwick miller marguerite grant required mr grant estate call evidence witness caroline nolan sally saxby jill shaw theresa sienkiewicz properly advised nerez grant conduct towards mother gross must known chance success action nerez grant prosecution family provision proceeding good example holland j word indegmam conducted proceeding multiplying allegation upon allegation prevaricating witness box grossly prolong litigation thereby cause party incur liability solicitor client cost far beyond could reasonably expected incur litigation genuine issue order indemnity cost nerez grant unsuccessful plaintiff family provision proceeding deal principal outstanding issue party proceeding direction hearing 11 november 2020 mr avery williams foreshadowed may residual issue dealt court principal among issue financial compensation consequent upon transfer killcare property dr grant estate payment stamp duty transfer killcare property stayed pending outcome present appeal subject order court appeal residual issue dealt appeal proceeding concluded liberty apply granted party raise issue later appeal successful may never arise reason court make following order direction 1 purpose order proceeding number 2017 316190 referred estate recovery proceeding proceeding number 2018 139174 referred family provision proceeding 2 estate recovery proceeding order defendant pay cost plaintiff seth grant representative estate late alan grant indemnity basis 3 family provision proceeding order plaintiff pay cost estate late gwynneth grant indemnity basis 4 grant liberty apply conclusion appeal implement transfer killcare property deal remaining issue financial compensation associated transfer consequential relief claimed estate recovery proceeding |
Woodhouse v Thalis [2017] NSWCATOD 185 (17 May 2017).txt | woodhouse v thalis 2017 nswcatod 185 17 may 2017 last updated 17 march 2023civil administrative tribunalnew south walescase name woodhouse v thalismedium neutral citation 2017 nswcatod 185hearing date 17 may 2017date order 17 may 2017decision date 17 may 2017jurisdiction occupational divisionbefore craig qc principal memberr titterton senior memberb thomson general memberdecision 1 confirm dismissal proceeding pursuant order 7 made 27 april 2017 2 alternative order pursuant tos 55 1 c thecivil administrative tribunal act 2013that proceeding dismissed reason failure applicant appear hearing proceeding 3 order applicant pay respondent cost proceeding agreed assessed catchword procedure local government application dismissal elected councillor failure applicant observe procedural direction failure applicant appear date listed hearing application email adjournment sufficiency pro forma medical certificate support adjournment application dismissal proceeding cost obligation give effect guiding principle compliance order direction tribunal special circumstance founding order costslegislation cited civil administrative tribunal act 2013 nsw civil administrative tribunal regulation 2013civil administrative tribunal rule 2014local government act 1993cases cited ahb v nsw trustee guardian 2014 nswca 40bobolas v waverley council 2016 nswca 138harmony stone gallery pty limited v ajuria 2017 nswcatap 80latoudis v casey 1990 hca 59 1990 170 clr 534makx v minister immigration multicultural indigenous affair 2003 fca 1559category principal judgmentparties andrew lance woodhouse applicant philip thalis respondent representation solicitor appearance applicant sba lawyer respondent file number 2016 00378839 1620279reasons decisionat local government election held 10 september 2013 philip thalis respondent elected councillor council city sydney council application filed tribunal 9 december 2016 andrew woodhouse applicant sought order 1 philip thalis disqualified councillor 2 decision involving philip thalis city sydney council rescinded 3 philip thalis prohibited standing council 17 may 2017 dismissed application essentially operation self executing procedural order made 27 april 2017 reason failure mr woodhouse appear hearing order sanctioned bys 55 1 c thecivil administrative tribunalact 2013 |
Mirage Resorts Holdings P_L as Trustee of the Mariners Paradise Property Trust v Brellen P_L [2003] QCA 579 (24 December 2003).txt | mirage resort holding p l trustee mariner paradise property trust v brellen p l 2003 qca 579 24 december 2003 last updated 12 january 2004supreme court queenslandcitation mirage resort holding p l trustee mariner paradise property trust v brellen p l 2003 qca 579parties mirage resort holding pty ltd trustee mariner paradise property trustacn 010 814 347 plaintiff respondent vbrellen pty ltdacn 085 190 094 defendant appellant file appeal 10462 2003sc 6573 2003division court appealproceeding general civil appealoriginating court supreme court brisbanedelivered 24 december 2003delivered brisbanehearing date 9 december 2003judges williams ja chesterman mcmurdo jjseparate reason judgment member court concurring order madeorder appeal dismissed cost assessedcatchwords lease tenancy commercial tenancy retail tenancy dispute dispute party whether option renew lease another term validly exercised whether written notice exercise option delivered business premise respondent purported notice exercise option discovered lease terminated relief sought 128property law act1974 |
Warford v Warford [1970] VicRp 6; [1970] VR 51
(24 October 1969).txt | warford v warford 1970 vicrp 6 1970 vr 51 24 october 1969 warford v warfordsupreme court victorialush j15 24 october 1969lush j application s43 matrimonial cause act 1959 1965 com leave institute proceeding dissolution marriage within three year date marriage relevant part s43 follows 1 subject section proceeding decree dissolution marriage shall instituted within three year date marriage except leave court 2 nothing section shall taken require leave court institution proceeding decree dissolution marriage one ground specified para para c para s28 act ground institution proceeding decree dissolution marriage way cross proceeding 3 court shall grant leave section institute proceeding except ground refuse grant leave would impose exceptional hardship applicant case one involving exceptional depravity part party marriage 4 determining application leave institute proceeding section court shall regard interest child marriage question whether reasonable probability reconciliation party expiration period three year date marriage party married 27 august 1967 wife applicant 21 year old respondent 22 applicant complaint complaint assault depraved sexual treatment affidavit say respondent began violent assault upon two week marriage december 1967 treated severely took overdose pill unspecified nature early 1968 underwent operation result left condition made sexual intercourse extremely painful nevertheless say respondent insisted intercourse every night beat refused later 1968 became pregnant eventually suffered miscarriage attribute treatment suffered respondent hand middle 1969 respondent left victoria went work south australia result continued assault applicant left 23 august 1969 say stage contemplating suicide day later respondent returned victoria see father ill applicant first intend follow persuaded mother return mother home traralgon town respondent gone applicant arrived mother house respondent made immediate demand sexual intercourse 1 september demand led quarrel respondent threatened beat applicant threw coffee day respondent left applicant mother house believed returned south australia applicant say terrified cannot return feel ill treatment depraved conduct would cause complete collapse health also say absolutely probability reconciliation mr shulkes appeared applicant based application upon exceptional hardship upon exceptional depravity summary allegation exceptional hardship rested upon argument applicant shown suicidal tendency might become marked evidence showed prospect reconciliation argument evidence disclosed exceptional depravity based upon combination assault excessive demand sexual intercourse demand intercourse respondent must known painful distasteful applicant s43 3 exceptional hardship relevant hardship caused refusal leave institute proceeding respect differs corresponding english section discussed case bowman v bowman 1949 p 353 1949 2 er 127 hillier v hillier 1958 p 186 1958 2 er 261 question whether case one exceptional hardship suffered petitioner s43 task say whether refuse application thus make applicant wait august 1970 institute proceeding would impose exceptional hardship sub 4 quoted directs determining application regard question whether reasonable probability reconciliation august 1970 determination application s43 involves two separate aspect section confers discretion may exercised certain fact found however clear section contemplates possibility exceptional hardship exceptional depravity may found fact application may nevertheless refused exercise discretion conferred section matter referred sub 4 may relevant either determination necessary fact e determination question whether exceptional hardship exceptional depravity proved may relevant exercise discretion applicant hardship depravity established interest child referred sub 4 may circumstance component factual concept exceptional hardship even exceptional depravity many case interest child likely relevant matter going exercise discretion distinct finding basic fact similarly absence chance reconciliation may relevant question whether fact exceptional hardship may relevant exercise discretion case exceptional depravity alleged likely chance reconciliation relevant exercise discretion fact depravity otherwise proved said construction section may summed saying either exceptional hardship exceptional depravity may proved without reference two matter mentioned sub 4 two matter may relevant however either proof exceptional hardship exceptional depravity may relevant independently issue hardship depravity exercise judicial discretion analysis lead think conclusion two matter referred sub 4 interest child prospect reconciliation simply matter taken consideration relation either proof essential fact exercise discretion either sole test question whether hardship significance prospect reconciliation general scheme section think correctly stated osborn v osborn 1961 2 flr 29 p 34 1961 alr 607 following word whilst prospect reconciliation doubtless matter court must regard mandatory provision section make plain mean sole test court enjoined refuse application unless refusal would impose exceptional hardship upon applicant mr shulkes argued lack prospect reconciliation played important part decision application s43 indicated said rested contention recent case drzola v drzola 1967 11 flr 215 1968 alr 71 bentley v bentley 1967 11 flr 408 former case joske j made certain comment osborn case including comment sub 4 referred osborn case true referred number judgment includes besides passage quoted following passage flr p 36 alr p 612 mr twigg also submitted really important consideration see whether chance reconciliation doubtless relying dictum denning lj bowman case respect however apt lordship observation may relation section dealing word section make impossible accept view find respect unable accept suggestion court decided osborn case sub 4 mind judgment joske j 11 flr pp 217 218 1968 alr p 73 following passage found question possibility reconciliation important element considering whether leave granted refused s43 real possibility reconciliation strong case refusal leave exists chance reconciliation duty court regard determining whether case exceptional hardship upon applicant court positive obligation take question possibility reconciliation consideration order determine whether exceptional hardship applicant leave proceed refused fact legislature expressly stipulated indicates importance legislature attache matter chance reconciliation case purpose legislation delaying proceeding cannot achieved legislature provided case enabling court give leave proceed matrimonial offence committed except proceeding falling within s43 divorce may sought without delay prospect reconciliation effect s43 may said create merely case hardship exceptional hardship since applicant deprived right possessed many others good purpose achieved deprivation greatest respect last paragraph quoted intended suggest case s43 applies regarded exceptional unable accept s43 applies three ground set s28 three common one ground adultery traditionally court insisted petition ground brought degree promptitude indeed early history divorce quite stringent requirement would radical departure traditional approach question provided matrimonial cause act period delay must take place act adultery filing petition based act two ground excepted s43 uncommon nature explains excepted course greatest diffidence would field law disagree learned judge decided drzola case however find unable adopt construction s43 give question reconciliation significance honour attribute practical application honour interpretation would lead result evidence chance reconciliation accepted applicant prima facie entitled leave institute proceeding appear s43 provides intended provide final question every case whether exceptional hardship imposed petitioner judgment delay imposed section effect applicant general prospect life state marriage rarely ever constitute exceptional hardship point sub 3 read shall grant leave shall grant leave unless returning fact present case really evidence applicant mental state adversely affected unable file petition august 1970 living apart husband safety unable say exceptional hardship imposed applicant refuse leave sought turning allegation exceptional depravity word depravity connotation perversion whether conduct complained amount callous satisfaction sexual appetite greater applicant properly described depravity probably involves question degree case class conduct alleged exceptional depravity think case one discretion exercised really case marriage failed circumstance involving sexual maladjustment physical violence said applicant living separately safety application refused application refused solicitor applicant b shulkes |
Industrial Relations Commission Decision 1517_1993 [1993] AIRC 1517;
(2 December 1993).txt | industrial relation commission decision 1517 1993 1993 airc 1517 2 december 1993 industrial relation commission decision 1517 1993 t422 dec 1517 93 print l0204 australian industrial relation commissionindustrial relation act 1988s 99notifications industrial dispute metal engineering worker union metal trade industry association australia others c 20311 1990 federation industrial manufacturing engineering employee metal trade industry association australia others c no 20384 20401 1990 federated engine driver fireman association australasia metal trade industry association australia others c no 3557 1239 1979 134c certification agreement metal trade industry association australia automotive metal engineering union awu fime amalgamated union construction forestry mining energy union fedfa victoria division c 32451 1993 transfield construction altona certified agreement 1993 print l0205 t422 metal engineering employee metal industry senior deputy president marsh melbourne 2 december 1993 wage rate enterprise agreement single business requirement act met agreement certified reason decision application made pursuant 134c theindustrial relation act1988 act certification agreement part settlement industrial dispute application made party agreement namely metal trade industry association australia behalf transfield construction pty limited automotive metal engineering union awu fime amalgamated union construction forestry mining energy union fedfa victoria division satisfied agreement applies single business defined act party filed statutory declaration accordance withrule 23of act set opinion party statutory requirement certification single business agreement met fact opinion based although appearance entered construction forestry mining energy union fedfa victoria division also indicated writing agreement term condition agreement indicated transcript 18 november 1993 basis content statutory declaration submission made party proceeding satisfied agreement part settlement industrial dispute c no 20311 20384 20401 1990 3557 1293 1979 requirement 134e met section 134e provides commission obliged certify agreement provision subsection 1 complied consequently agreement certified operative date 19 november 1993 shall remain force 31 march 1995 appearance driscoll metal trade industry association australia b fleiner transfield construction pty limited altona rattigan automotive metal engineering union c melham awu fime amalgamated union hearing detail 1993 melbourne november 18 end text end text |
EOE v Hunter New England Local Health District [2021] NSWCATAD 368 (13 December 2021).txt | eoe v hunter new england local health district 2021 nswcatad 368 13 december 2021 last updated 13 december 2021civil administrative tribunalnew south walescase name eoe v hunter new england local health districtmedium neutral citation 2021 nswcatad 368hearing date 3 june 2021date order 13 december 2021decision date 13 december 2021jurisdiction administrative equal opportunity divisionbefore montgomery senior memberdecision application dismissed catchword administrative law health information privacy personal information whether disclosure health information accuracy informationlegislation cited administrative decision review act 1997civil administrative tribunal act 2013health record information privacy act 2002privacy personal information protection act 1998cases cited apv v department finance service 2016 nswcatad 168collins v department fair trading 2019 nswcatap 199dqj v secretary department family community service 2019 nswcatad 138kp v narrandera shire council 2011 nswadtap 15nakhl nasr v state new south wale george nasr v state new south wale 2007 nswca 101nw v nsw fire brigade 2 2006 nswadt 61category principal judgmentparties eoe applicant hunter new england local health district respondent representation solicitor eoe applicant person crown solicitor respondent file number 2021 18487publication restriction publication broadcast name address applicant prohibited pursuant tosection 64 1 thecivil administrative tribunal act 2013 reason decisionintroduction1 reason name address applicant anonymised preserve privacy personal affair reason applicant referred eoe refer relevant address x avenue 2 applicant seek review conduct allege amount breach breach thehealth record information privacy act2002 hrip act proceeding concern alleged breach health privacy principle hpps set schedule 1 hrip act 3 applicant complaint hunter new england local health district respondent sent letter offer medical procedure wrong postal address respondent maintains sent letter offer address applicant provided complaint4 applicant identified conduct subject review following term 1 company disclosed personal information another person sending personal health information unknown address 2 failure protect personal information inappropriately accessed someone else 5 applicant described complaint following term 1 collection personal health information 2 security storage personal health information 3 accuracy personal health information 4 disclosure personal health information 6 applicant identified effect conduct include 1 anxiety stress 2 ptsd 3 absent work 4 depression 5 breach human right 6 lost ability control see use information 7 feel safe 8 loss trust health professional 7 applicant also identified number effect conduct might future include 1 identity theft 2 stalking 3 harassment 4 access various website 5 commit cybercrime tax fraud 6 take banking information make unauthorised withdrawal purchase transfer 7 robbed 8 suffer distress depression anxiety 9 suffer financial loss 10 damaging online reputation thus sabotaging career 11 gain admission educational sic 12 worried future medical professional staff job correctly simply background8 november 2020 eoe lodged application internal review respondent alleged respondent breached number hpps sending letter addressed wrong address 3 june 2020 letter letter sent around 3 june 2020 9 chronology event set internal review decision reason m michelle kirk acting manager admission service john hunter hospital jhh also provided affidavit dated 18 may 2021 set chronology event annexures m kirk affidavit support chronology extent document available chronology summarised respondent written submission 10 applicant provided copy email chain self staff respondent email provide detail communication understand chronology event dispute material way noted respondent maintains eoe provided address 38 x avenue 22 may 2020 eoe disagrees maintains provided address 48 x avenue 11 chronology indicates 1 21 may 2020 john hunter hospital jhh received request admission applicant 2 22 may 2020 jhh staff called applicant confirm patient detail eoe address updated patient administration system ipm pa 38 x avenue 3 25 may 2020 jhh clinical service sent handwritten envelope 48 x avenue staff obtained address telephone conversation applicant check pa 4 3 june 2020 letter offer endoscopy sent applicant 38 x avenue consistent contact detail recorded applicant pa 5 30 june 2020 applicant called jhh regarding upcoming appointment stated never received letter offer m kirk checked applicant address pa applicant said thought 48 x avenue 38 x avenue applicant thought previously received letter hospital 48 x avenue presumably reference envelope sent 25 may 2020 mentioned unsure parent address 6 2 july 2020 jhh patient representative jennifer lamb wrote applicant regarding complaint m lamb noted applicant provided 38 x avenue address contacted jhh may 2020 m lamb requested applicant confirm current address ensure correspondence could sent right address 7 5 july 2020 applicant replied m lamb writing confirming anything done successfully past state 38 48 correct address 8 11 july 2020 applicant wrote respondent seeking response five question relating alleged privacy breach 9 30 july 2020 jhh patient representative sent email applicant confirm issue addressed complaint 10 3 november 2020 applicant wrote privacy officer nsw ministry health requesting internal review matter applicant identified conduct subject review following term company disclosed personal information another person sending personal health information unknown address failure protect personal information inappropriately accessed someone else internal review12 respondent undertook internal review conduct internal review addressed complaint respondent disclosed eoe personal information another person sending 3 june 2020 letter 38 x avenue failed protect eoe personal information inappropriately accessed someone else 13 internal review considered hrip act specifically whether respondent breached number hpps including 1 collection health information hpp 1 4 2 security health information hpp 5 3 accuracy health information hpp 9 4 disclosure health information hpp 11 14 internal review determined respondent breached hpps applicable legislation15 section 11 1 hrip act provides every organisation health service provider collect hold us health information subject act term organisation defined section 4 1 hrip act include public sector agency respondent public sector agency 16 section 11 2 hrip act provides organisation act applies required comply hpps applicable organisation dispute respondent organisation act applies required comply hpps set schedule 1 hrip act section 11 3 hrip act provides organisation must anything engage practice contravenes hpp 17 hpps include principle regard collection clause 1 4 retention security clause 5 access amendment clause 6 8 use clause 9 10 disclosure clause 11 person health information 18 section 21 1 hrip act make provision complaint made public sector agency regard conduct alleged contravention hpp applies agency complaint made pursuant topart 5of theprivacy personal information protection act 1998 ppip act purpose reference part 5 ppip act personal information taken include health information section 21 2 hrip act 19 term health information defined section 6 hrip act following term 6 definition health information act health information mean personal information information opinion physical mental health disability time individual ii individual express wish future provision health service iii health service provided provided individual b personal information collected provide providing health service c personal information individual collected connection donation intended donation individual body part organ body substance personal information genetic information individual arising health service provided individual form could predictive health time individual genetic relative individual e healthcare identifier include health information class health information health information contained class document prescribed exempt health information purpose act generally purpose specified provision act 20 section 5 defines personal information 1 act personal information mean information opinion including information opinion forming part database whether recorded material form individual whose identity apparent reasonably ascertained information opinion 21 personal information defined term subsection 4 1 2 ppip act 22 part 5 ppip act make provision review conduct public sector agency section 52 defines conduct include contravention information protection principle applies government agency information protection principle set part 2 ppip act include principle regard collection retention security access alteration accuracy use disclosure personal information section 8 19 ppip act mentioned section 21 2 hrip act provides purpose part 5 ppip act complaint made conduct agency contravenes hpp also conduct falling within part 23 public sector agency generally prohibited disclosing personal information hold exception apply general prohibition section 18 ppip act provides 18 limit disclosure personal information 1 public sector agency hold personal information must disclose information person individual information relates body whether person body public sector agency unless disclosure directly related purpose information collected agency disclosing information reason believe individual concerned would object disclosure b individual concerned reasonably likely aware made aware accordance section 10 information kind usually disclosed person body c agency belief reasonable ground disclosure necessary prevent lessen serious imminent threat life health individual concerned another person 2 personal information disclosed accordance subsection 1 person body public sector agency agency must use disclose information purpose purpose information given 24 essence disclosure information making known person information person disclosure made previously know seenakhl nasr v state new south wale george nasr v state new south wale 2007 nswca 101at paragraph 127 25 section 53 ppip act give person aggrieved conduct public sector agency right seek internal review conduct agency reason section 21 1 hrip act right extends conduct alleged contravention hpp applies agency 26 section 55 ppip act make provision person dissatisfied finding agency action taken agency regard person internal review application seek external review conduct complained review tribunal power take action specified section 55 2 55 administrative review conduct tribunal 2 reviewing conduct public sector agency concerned tribunal may decide take action matter may make one following order subject subsection 4 4a order requiring public sector agency pay applicant damage exceeding 40 000 way compensation loss damage suffered conduct b order requiring public sector agency refrain conduct action contravention information protection principle privacy code practice c order requiring performance information protection principle privacy code practice order requiring personal information disclosed corrected public sector agency e order requiring public sector agency take specified step remedy loss damage suffered applicant f order requiring public sector agency disclose personal information contained public register g ancillary order tribunal think appropriate 27 order compensation alleged financial loss alleged psychological physical harm made loss harm agency conduct applicant bear onus establishing causal link privacy breach damage allegedly suffered apv v department finance service 2016 nswcatad 168at paragraph 42 28 innw v nsw fire brigade 2 2006 nswadt 61o connor dcj stated paragraph 20 24 20 opinion contravention cause immediate cause financial harm applicant complains 21 test applicant referred way judging whether causal link established mentioned infm v vice chancellor macquarie university 2003 nswadt 78 16 april 2003 set aside part appeal panel wholly court appeal invice chancellor macquarie university v fm 2005 nswca 192 affected relation point tribunal said 103 requirement loss damage conduct reflects common law requirement damage must caused conduct question test generally applied tort relevant proceeding pursuant test conduct caused damage damage would occurred without march v stramare 1991 hca 12 1991 171 clr 506 word conduct question make difference outcome 22 care taken see drawing strict analogy common law principle developed law tort law contract 23 view award statutory damage privacy act matter remains discretionary one even causal link sufficient satisfy 55 4 position statute le automatic reflected consider language opening word 55 2 reviewing conduct public sector agency concerned tribunalmay decide take action matter may make one following order emphasis added 24 word preclude possibility tribunal might find contravention might find causal link contravention harm suffered make order matter reviewing conduct left entirely tribunal minded make order involving payment damage rule 55 4 b come play follow causal link satisfy 55 4 b found tribunal must award damage still remains discretionary matter see right compensation way might case common law principle tort contract 29 proceeding relevant personal information eoe identity information concerning medical appointment 30 appear dispute respondent collected retained used eoe personal information arranging medical procedure eoe complain respondent use personal information eoe complaint regard disclosure personal information failure protect information alleged breach said result inaccuracy recorded address 31 hpp 2 provides 2 information must relevant excessive accurate intrusivean organisation collect health information individual must take step reasonable circumstance regard purpose information collected ensure information collected relevant purpose excessive accurate date complete b collection information intrude unreasonable extent personal affair individual information relates 32 hpp 9 provides 9 accuracyan organisation hold health information must use information without taking step reasonable circumstance ensure regard purpose information proposed used information relevant accurate date complete misleading 33 hpp 11 provides 11 limit disclosure health information 1 organisation hold health information must disclose information purpose secondary purpose purpose primary purpose collected unless consentthe individual information relates consented disclosure information secondary purpose b direct relationthe secondary purpose directly related primary purpose individual would reasonably expect organisation disclose information secondary purpose ornote example information collected order provide health service individual disclosure information provide health service individual secondary purpose directly related primary purpose applicant case34 eoe provided submission significant amount material support claim included copy email text show communication eoe staff respondent also attended hearing gave evidence 35 eoe gave evidence either 21 22 may 2020 contacted respondent changed address 48 x avenue subsequently received letter sent 48 x avenue letter contained form endoscopy appointment 36 later received text appointment informed staff member respondent letter sent 38 x avenue greatly concerned letter sent wrong address contained personal information became concerned privacy 37 respect respondent evidence record changed 21 22 may 2020 38 x avenue eoe noted received mail 48 x avenue date 38 eoe contends respondent breached hrip act sending mail wrong address concerned unknown person provided information regarding name date birth medicare number eoe concerned information could misused submits consequence respondent mistake 39 eoe contends inconsistency respondent material example internal review decision state leaflet sent applicant 21 may 2020 38 x avenue whereas m kirk evidence respondent patient administration system record changed 22 may 2020 record eoe address 38 x avenue 40 eoe submits evidence rang asked change address 38 x avenue eoe submits requested change address 38 x avenue make sense letter would sent 48 x avenue day later 41 complaint eoe identified following action wanted respondent take relation conduct 1 apology acknowledgement effect caused may potentially cause 2 placing alert electronic health file come file accessed indicate caution required releasing information third party 3 expense paid eoe suffers consequence future caused personal information released 4 training staff friendly approach regard privacy concern 5 investigation feedback mistake occurred respondent case42 respondent relies evidence m kirk noted m kirk provided affidavit evidence also attended hearing cross examined respondent solicitor mr allchurch provided written oral submission behalf respondent m kirk evidence43 m kirk provided evidence based personal knowledge also information recorded respondent patient record system 44 evidence consulted eoe speaking booking clerk upset mail going wrong address affidavit stated 22 may 2020 sara smith admission clerk called eoe confirm patient detail standard practice new request admission received admission clerk contact patient update record ipm patient administration system open computer front enter information directly ipm speaking patient 45 m kirk said spoke m smith m smith confirmed followed usual procedure amending record eoe address 46 30 june 2020 m kirk wrote jennifer lamb patient representative following termsthe booking clerk endoscopy received phone call today eoe brief outline contact wednesday morning discus sure respond eoe called received txt message advising tg date 7th july eoe advised happy time notified tci date believe appropriate patient dated without prior confirmation spoke eoe explained booking process patient get dated future letter sent short notice phone call advise note waiting list indicate patient left message sm confirm date numerous occasion well letter offer sent 3rd june eoe stated never received letter offer checked address patient stated think 48 38 x avenue advised sent eoe copy letter sent 38 x avenue address appears updated 21 5 contacted admission clerk check detail eoe said think received letter hospital 48 mention parent address sure contacted investigate advised show anywhere address time number 48 47 cross examination m kirk agreed m smith may inserted wrong address system human error possible explanation 48 m kirk said patient administration system recorded eoe address 38 x avenue would allow letter sent 48 x avenue eoe address never listed 48 x avenue system hand written address letter sent 48 x avenue address recorded 22 may 2020 sent respondent gastroenterology area m kirk could explain sender obtained address 48 x avenue aware gastroenterology area record system operated whether operated patient administration system 49 regard eoe request alert placed respondent system m kirk stated 14 may 2021 greg jackson manager record privacy cyber security hunter new england local health district renae line revenue patient service manager hunter new england local health district discussed possibility administrative alert placed ipm notify person accessing eoe information take additional step verify identity speaking someone purporting 18 may 2021 informed greg jackson alert nature placed ipm submissions50 mr allchurch submitted internal review statement leaflet sent applicant 21 may 2020 38 x avenue probably typographical error indicated leaflet sent 22 may 2020 51 respondent submits could breach hrip act regard letter sent applicant 48 x avenue correctly sent raised internal review request 52 contends core dispute whether applicant provided 38 x avenue 48 x avenue address contemporaneous record made m smith recorded address 38 x avenue 48 x avenue 53 respondent maintains eoe provided address 38 x avenue spoke m smith 22 may 2020 eoe disagrees maintains provided address 48 x avenue 54 respondent submits practical onus party raise specific fact consideration prove existence fact relies view expressed appeal panel incollins v department fair trading 2019 nswcatap 199at paragraph 47 well established undertaking task tribunal must consider matter afresh neither party bear onus proof though occasion one party better position address specific factual matter seeminister immigration multicultural indigenous affair v qaah 2004 2006 hca 53 2006 231 clr 1at 39 40 practical onus party raise specific fact consideration prove existence fact seere holbrook australian postal commission 1983 5 aln n 46 55 respondent submits tribunal left state uncertainty fact issue ought find applicant inkp v narrandera shire council 2011 nswadtap 15the appeal panel stated paragraph 26 31 26 ordinarily court tribunal left state uncertainty relation matter issue decided party bear legal burden proof term evidential burden tactical burden proof source confusion cr williams succeeded clarifying various way term used adopted preferred terminology williams cr burden standard civil litigation 2003 sydney law review 9 evidential burden sometimes called duty producing evidence commonly arises context trial jury judge may decide leave issue jury party evidential burden proof produced sufficient evidence raise issue existence non existence fact issue case jury evidential burden merely burden producing evidence issue general rule civil case party legal burden also evidential burden 27 neither adt act ppip act attribute legal burden proof party situation may contrasted situation thegovernment information public access act 2009 gipa act burden establishing decision made act justified lie agency however relation decision provide access government information burden establishing overriding public interest disclosure information lie applicant review 105 absence express legislative provision ppip act relevant provision must interpreted context determine whether legal burden proof burden lie 28 inn v commissioner department corrective service 2004 nswadt 263 following discussion issue appears 32 45 46 32 deputy privacy commissioner also submitted rule applicant bear onus proof review conduct ppip act regard relied decision ofgv v officer director public prosecution 2003 nswadt 177 went submit onus placed applicant applicant would greatly disadvantaged knowledge way agency manages personal information hold therefore position agency ascertain exact nature conduct complained 45 agree submission deputy privacy commissioner respect onus proof appeal panel recently adopted approach inko v anor v commissioner police new south wale police gd 2004 nswadt 21at 40to 43 46 ingr 35 36 appeal panel adopted observation made australian law reform commission report entitled managing justice review federal civil justice system respect merit review tribunal applying equally review 55 1 ppip act observation expressly stated merit review neither applicant respondent agency carry burden proof prove disprove fact 29 analysis resolve question tribunal left state uncertainty relation fact issue reviewing available evidence said federal court landmark decision 1984 notion onus proof directly relevant administrative proceeding tribunal administrative appeal tribunal bound rule evidence may inform think fit mcdonald v director general social security 1984 fca 57 1984 1 fcr 354 358 1984 fca 57 6 ald 6at 11 per woodward j particular held evidential onus proof proceeding aat unless relevant legislation provides present case social security act 1947 nevertheless woodward j acknowledged aat find state uncertainty considering available material necessary analyse carefully decision reviewing depending term legislation issue must resolved one way 30 nature tribunal role ppip act far aware unique tribunal merely executive decision maker aat mcdonald tribunal exercising review jurisdiction determining whether certain conduct amount contravention information protection principle exercising judicial power determining whether take action grant relief available 55 2 including damage mandatory prohibitory injunctive relief ppip act 55 2 b c function analogous function exercised judge decision maker civil proceeding court tribunal applicant seeking assert right 31 given nature review ppip act absence provision attributing onus either party left state uncertainty relation fact issue fact decided applicant 56 relation hpp 2 respondent submitted hpp 2 require agency ensure information collect accurate requires agency take step reasonable circumstance ensure information collect accurate respondent submits obtaining applicant address directly applicant step required taken circumstance ensure accuracy address plainly reasonable rely applicant provide address correctly agency generally entitled assume accuracy information provided individual relates supported hpp 3 requires organisation collect health information individual individual unless unreasonable impracticable dispute factual one conversation 22 may 2020 respondent submits tribunal cannot satisfied applicant provided address 48 x avenue highest respondent submits tribunal would satisfied provided 38 x avenue address least respondent submits state uncertainty tribunal find applicant kp set kirk affidavit pa indicates applicant address updated 38 x avenue 22 may 2020 contemporaneous change entered pa m smith talking applicant basis evidence tribunal respondent submits basis doubting applicant knew address precision time provided jhh staff 22 may 2020 evidence also indicates applicant clearly recollect address provided jhh staff 30 june 2020 applicant spoke m kirk eoe said received letter hospital 48 mention parent address sure respondent submits lack certainty correct address 30 june 2020 consistent applicant providing wrong address 22 may 2020 uncertainty demonstrated applicant refusal confirm address 5 july 2020 applicant wrote state 38 48 correct address even course attempting resolve complaint applicant communication respondent indicated uncertainty correct address material applicant filed tribunal resolve uncertainty part evidence applicant filed various email communication eoe respondent however applicant provided evidence content conversation jhh staff 22 may 2020 respondent submits tribunal cannot satisfied applicant told respondent correct address 22 may 2020 57 relation hpp 9 respondent submitted event tribunal considers hpp 9 engaged respondent submits conduct breach hpp 9 hpp 2 obligation respondent ensure accuracy information take step reasonable circumstance ensure accuracy use letter 3 june 2020 sent based applicant record pa updated 22 may 2020 checking record reasonable step respondent took ensure accuracy respondent address respondent entitled rely accuracy centralised database patient detail particularly circumstance little time passed collection information sending letter circumstance step required taken respondent ensure accuracy applicant address example would reasonable expect respondent call every patient confirm address time wished send correspondence patient post respondent acknowledges subsequent phone call jhh clinical service 25 may 2020 applicant provided address 48 x avenue address provided directly applicant handwritten envelope time cross checked address pa respondent submits intervening event alter fact reasonable step taken 3 june 2020 ensure accuracy applicant address 58 relation hpp 11 respondent submitted dispute applicant health information sent address reside raise question whether disclosure resident 38 x avenue applicant health information breach hpp 11 first instance respondent submits relied information applicant provided address 38 x avenue respondent submits disclosure applicant health information address could breach hpp 11 disclosure primary purpose providing applicant health service purpose health information collected hpp 11 1 b alternative applicant consented disclosure health information address provided hpp 11 1 c alternative disclosure information secondary purpose directly related primary purpose applicant would reasonably expect respondent disclose information secondary purpose resident address provided hpp 11 1 b short respondent submits tribunal accepts applicant provided address 38 x avenue respondent entitled rely address however tribunal accepts applicant provide incorrect address respondent submits would necessarily follow breach hpp 11 sending letter address 59 respondent submitted event people open mail sent wrong address referred view expressed indqj v secretary department family community service 2019 nswcatad 138 dqj dqj considered situation letter sent applicant post circumstance applicant requested correspondence sent email paragraph 48 50 stated 48 dqj seen letter evidence suggest letter ever delivered contact address reasonable assume would delivered within reasonable time 10 february 2018 however cannot assumed letter ever opened evidence suggest letter opened anyone contact address became aware personal information included letter highest inferred resident contact address might become aware letter respondent sent dqj evidence content letter disclosed anyone 50 circumstance satisfied respondent breached section 18 ppip act sending letter contact address 60 present matter eoe alleged health information disclosed resident 38 x avenue respondent submitted case indqj evidence tribunal resident 38 x avenue opened letter addressed eoe circumstance tribunal cannot satisfied disclosure health information breach hpp 11 tribunal find accordingly 61 regard issue consequence flow conduct respondent submitted well year since mail sent wrong address probability misuse eoe information small basis finding link conduct alleged effect applicant 62 respondent contends sending letter address held record reasonable submits circumstance breach therefore penalty consideration63 agree respondent core dispute whether applicant provided 38 x avenue 48 x avenue address 64 also agree issue related sending letter applicant 48 x avenue part proceeding raised internal review request 65 dispute contemporaneous record made m smith recorded applicant address 38 x avenue 48 x avenue possible m smith made mistake wrongly recorded address also possible applicant made mistake gave m smith wrong address 66 evidence tribunal inconclusive contemporaneous evidence applicant regard conversation m smith direct evidence m smith evidence m kirk spoke m smith m kirk said m smith confirmed followed usual procedure amending record eoe address note m kirk recorded email m lamb 30 june 2020 refer conversation m kirk applicant suggest time eoe unsure whether correct address 38 x avenue 48 x avenue 67 case inkp v narrandera shire councilthis matter tribunal left state uncertainty fact issue respondent provided evidence change made address recorded patient administration system change made conversation eoe m smith taking place applying reasoning inkp v narrandera shire councilleads need make finding relation fact issue view probable eoe told m smith address 38 x avenue 48 x avenue 68 accept eoe correct address 48 x avenue 38 x avenue also accept respondent sent 3 june 2020 letter wrong address however insufficient evidence conclude respondent breached hpps 69 follows cannot satisfied respondent breached hrip act basis able make order favour applicant pursuant section 55 2 ppip act appropriate order dismiss application relation conduct sending 3 june 2020 letter wrong address order 1 application dismissed hereby certify true accurate record reason decision civil administrative tribunal new south wale registrar |
Family Law (Hague Convention on Intercountry Adoption) Amendment Regulations 1999 (No. 1) 1999 No. 283.txt | family law hague convention intercountry adoption amendment regulation 1999 1 1999 283family law hague convention intercountry adoption amendment regulation 1999 1 1999 283explanatory statementstatutory rule 1999 283issued authority attorney generalfamily law act 1975family law hague convention intercountry adoption amendment regulation 1999 1 section 125 family law act 1975 act provides governor general may make regulation necessary convenient carrying giving effect act section 111c act provides making regulation prescribing matter necessary purpose giving effect international arrangement respect intercountry adoption act sub section 111c 1 act provides regulation may make provision necessary enable performance obligation australia obtain australia advantage benefit convention protection child cooperation respect intercountry adoption convention sub section 111c 5 act provides regulation may confer jurisdiction federal territory court invest state court federal jurisdiction purpose regulation give effect convention making interim provision enable family court exercise jurisdiction adoption regulation setting procedure making application court relation convention adoption regard reference application regulation 14 2 15 2 20 2 22 2 order regulation 14 2 15 2 20 2 22 2 necessary regulation prescribe appropriate form measure necessary family law hague convention intercountry adoption regulation 1998 invested certain state territory court jurisdiction regulation state territory advised court rule place implement jurisdictional requirement adoption convention commencement date regulation 1 december 1998 amendment required confer family court australia jurisdiction make adoption order part 4 regulation power lapse state territory state territory put place legislation making adoption order amendment also set limited process appeal decision family court australia made part 4 regulation amendment made regulation 34 1 replace reference regulation 5 6 7 reference regulation 5 6 7 8 9 12 13 regulation also amended add various country list convention country schedule 2 regulation detail regulation follows regulation 1 formal naming regulationsregulation 2 provides commencement regulation upon gazettal amendment 1 make formal amendment heading regulation 3 definition interpretation amendment 2 corrects drafting error opening regulation 3 amendment 3 insert regulation 3 new definition working day clarify calculation undertaking action regulation amendment 4 insert regulation 3 new subregulation 3 2 indicating inclusion new schedule 3 containing number form used concluding adoption arrangement convention amendment 5 insert new regulation 3a specifies form heading used form contained schedule 3 amendment 6 make addition schedule 2 list convention country operating regulation amendment 7 insert regulation 14 2 2a 2b 2c 2d 2e provide procedure make application respect adoption australian child convention country subregulation 2f provides order made amendment 8 insert regulation 15 2 2a 2b 2c 2d provide procedure make application respect adoption australia child convention country subregulation 2e provides order made amendment 9 insert regulation 20 2 2a 2b 2c 2d 2e provide procedure make application order terminating legal relationship child child birth parent subregulation 2f provides order made terminating legal relationship child parent amendment 10 insert regulation 22 2 2a 2b 2c 2d provide procedure order state central authority make application court declaration contrary public policy recognise decision authority another convention country subregulation 2e provides order made amendment 11 insert regulation 24a 24b 24c 24d 24e 24f amendment required confer family court australia jurisdiction make adoption order part 4 regulation power lapse state territory state territory put place legislation making adoption order amendment also set limited process appeal decision family court australia made part 4 regulation amendment 12 substitute regulation 34 1 reference regulation 5 6 7 reference regulation 5 6 7 8 9 12 13 amendment necessary certain state indicated passing intercountry adoption law include provision relating appointment state central authority accreditation body necessary provision regulation 8 9 12 13 apply state amendment 13 substitute schedule 2 listing convention country australia relationship consequence ratification hague convention addition includes column specifying date upon convention operated australia convention country also add previous list convention country france netherlands colombia israel burundi mauritius el salvador new zealand brazil georgia austria chile amendment 14 insert schedule 3 providing number form purpose implementation convention form 1 heading used form form 2 provides affidavit form purpose subregulations 14 2a b 14 2d b 14 2e b 15 2a b 15 2c b 15 2d b 20 2a b 20 2d b 20 2e b 22 2a b 22 2c b 22 2d b regulation form 3 provides application form order subregulations 14 2a 15 2a 20 2a 22 2a form 4 provides notice application order subregulations 14 2c 20 2c 22 2b form 5 provides form response application order regulation 14 15 20 22 form 6 provides form reply response application regulation 14 15 20 22 form 7 provides adoption order subregulation 14 h adoption australian child convention country form 8 provides adoption order subregulation 15 2e adoption australia child convention country form 9 provides order subregulation 20 2f terminating legal relationship child parent form 10 provides subregulation 22 2e declaration adoption decision recognised |
Adkins (a pseudonym) v Kimberley (a pseudonym) [2019] VCC 2093 (7 November 2019).txt | adkins pseudonym v kimberley pseudonym 2019 vcc 2093 7 november 2019 last updated 16 september 2020in county court victoriaat melbournecommon law divisionrevisednot restrictedsuitable publicationlarissa adkins pseudonym applicantvluke kimberley pseudonym respondent judge honour judge pillaywhere held melbournedate hearing 8 november 2019date ruling 8 november 2019case may cited adkins pseudonym v kimberley pseudonym medium neutral citation 2019 vcc 2093revised reason ruling subject section 85b sentencing act applicationcatchwords crime compensation application victim rape pain suffering psychiatric injury award costslegislation cited sentencing act 1991 vic case cited athian v pang 2019 vcc 477 moresco v budimir 2015 vsc 51 neall v watson 1960 34 aljr 364 rk v mirik mirik 2009 vsc 14 stevens v baxter 2009 vsc 257ruling ex tempore application granted appearance counselsolicitorsfor applicantmr miguel belmarwaller legalfor respondentms elise anselmahis honour 1 larissa adkins 1 born 1998 1 march 2011 24 december 2012 sexually assaulted raped mr kimberley 2 jury trial conducted nine charge may 2016 ultimately jury convicted mr kimberley nine charge related sexual assault rape m adkins 18 may 2016 2 m adkins brings application pursuant tos 85bof thesentencing act 1991 claim seek specifically compensation pain suffering well compensation expense incurred reasonably likely incurred 3 claim must prove directly result offending found reason verdict jury upon charge conviction 4 question determination matter whether court award compensation applicant accordance withs 85band amount compensation b awarding compensation account taken award made vocat 5 turning background matter fact offending set reason sentence honour judge mcinerney 3 6 note purpose plea counsel mr kimberley accepted fact detailed summary prosecution opening dated 24 november 2015 summary prosecution opening filed application exhibited affidavit dylan laurence rae white sworn 29 august 2017 exhibited drw4 repeat detail offending circumstance 7 summary form applicant aged 12 13 year age father began working italian restaurant run mr kimberley resulting employment situation applicant introduced mr kimberley engaged period grooming applicant professed love made promise many thing raped numerous occasion 8 september 2013 m adkins became involved older male named cameron reeve 4 many month raped ultimately charged convicted offence 9 principle applicable tos 85bclaims set repeated judgment supreme court 5 need repeat principle well settled court 6 10 fall first considered whethers 85b 2 b pain suffering consequence m adkins complains medical expense claim directly resulting offence committed attention answering query focussed word directly 11 answer question following evidence lead conclusion query must answered favourably m adkins first victim impact statement drw5 signed 15 june 2016 speaks eloquently effect offending talk vulnerability young person somewhat difficult family life taken advantage mr kimberley 12 situation mr kimberley appeared safe adult promised many thing betrayed action talk anxiety depression social isolation ultimately attempt kill depth suffering also conveyed contemporaneous reporting m karto counsellor psychologist 2014 7 13 go great detail effect offending upon m adkins report detail m adkins sadness feeling hopelessness worthlessness loss interest daily activity longing escape situation paint desolate picture situation m adkins found 2014 young age 14 m karto express view p 2 report drw7 m adkins symptom consistent post traumatic stress disorder opines whilst believed direct impact sexual assault committed alleged offender mr kimberley assessment observation sexual assault mr reeve exacerbated symptom leading acute presentation ptsd 15 found reporting m karto particularly useful treating practitioner made contemporaneously dealt issue whether offending mr kimberley could direct cause m adkins psychological condition context offending mr reeve 16 dr nathan serry psychologist also provided report dated 13 february 2017 briefed material offending mr kimberley mr reeve interviewed m adkins 17 found four year offending mr kimberley m adkins presented significant psychiatric condition persistent depression anxious distress significant feature traumatisation 18 attributed majority condition offending hand mr kimberley make point reason pre existing family situation effect abuse mr kimberley deeper effect 19 note great deal personality vulnerability understood long term effect offending mr kimberley consider significant 20 dr serry considered though somewhat conjectural m adkins required long standing intensive psychological intervention context supporting need medication treatment clinical psychologist 21 affidavit filed m adkins sworn 31 october 2019 deposes feel impact abuse hand mr kimberley never go away uncontroverted evidence m adkins psychological condition directly related offending mr kimberley treatment required 22 amount awarded pain suffering requires instinctive synthesis many matter set performed synthesis award sum 200 000 given age offending occurred noting young vulnerable child 23 addition clear background meant offending cut deeper already damaged psyche fact four year event dr serry came similar conclusion m karto effect offending strong factor support award note also young year bear burden rest life 24 mindful impact offending mr reeve must separated included come assessing effect mr kimberley offending particular regard judgment neall v watson high court 8 25 accept applicant submission amount awarded medical life expense 6 600 noted degree conjecture undoubted evidence need therapy medication likely long standing 26 used principle foundation assessment also taken account submission vocat award totality deducted award make 27 rather alternatively submitted special financial assistance award total sum 10 000 deducted remaining amount 4 872 accept decision rely particular decision moresco v budimir 2015 vsc 51at paragraph 55 also athian 2019 vcc 477 paragraph 57 28 mr belmar honour loath interrupt want clear way submission put deduction amount primary position secondary position amount deducted manner honour indicated 29 honour yes thank matter order cost whole proceeding applicant favour sought applicant sum 32 000 however given event 24 october 2019 abandonment proceeding day fault m adkins order respondent pay cost day fixed sum 1 950 counsel instructor 850 otherwise discretion whether award cost consider following factor support exercise discretion applicant favour length time since original application especially since appeal dismissed part occasioned respondent changing solicitor solicitor record b respondent attitude denying served material knowledge application quite clearly c subject matter offending difficult applicant constantly matter delayed complexity causation issue required expert evidence retention solicitor experience expertise field e retention counsel necessary deal causation issue f manner respondent dealt application continually deny offending occurred 30 reason consider award cost appropriate quick easy application contemplated act 9 award sum 20 000 cost disbursement appropriate circumstance 31 summary award applicant following amount 1 190 000 deduction relevant vocat award 2 6 600 medical like expense 3 cost sum 2 800 24 october 2019 4 cost proceeding otherwise fixed sum 20 000 1 pseudonym 2 pseudonym 3 2016 vcc 1199 4 pseudonym 5 see example rk v mirik mirik 2009 vsc 14 stevens v baxter 2009 vsc 257at 5 6 seeathian v pang 2019 vcc 477 7 see dwr6 dwr7 8 neall v watson 1960 34 aljr 364at 367 9 rk v mirik mirik 2009 vsc 14at paragraph 104 citing approval fromr v oddy 1974 er 666 |
Mackey v Hunter Valley Gardens Pty Ltd [2019] NSWDC 150 (1 May 2019).txt | mackey v hunter valley garden pty ltd 2019 nswdc 150 1 may 2019 last updated 14 may 2019district courtnew south walescase name mackey v hunter valley garden pty ltdmedium neutral citation 2019 nswdc 150hearing date 16 18 april 2019date order 1 may 2019decision date 1 may 2019jurisdiction civilbefore abadee dcjdecision see paragraph 247 catchword negligence contributory negligence customer slipped fell wet tile paving whether contributory negligence made damage assessment damage personal injury mental harm non economic loss past future loss earning capacity future domestic assistance future medical expense legislation cited civil liability act 2002 nsw case cited allianz australia insurance ltd v cervantes 2012 nswca 244avopiling pty ltd v bosevski 2018 nswca 146coles supermarket australia v bridge 2018 nswca 183dell v daiton 1991 23 nswlr 528 graham v baker 1961 hca 48 1961 106 clr 340husher v husher 1999 197 clr 143joslyn v berryman 2003 hca 34 2013 214 clr 552malec v jc hutton pty ltd 1990 hca 20 1990 169 clr 638manly council v byrne 2004 nswca 123oberlechner v hornsby shire council 2017 nswsc 23 penrith city council v park 2004 nswca 201rhg mortgage ltd v ianni 2016 nswca 270ruby v marsh 1975 hca 32 1975 132 clr 642state new south wale v moss 2000 nswca 133 2000 54 nswlr 536state rail authority v chu 2008 nswca 14texts cited h luntz assessment damage personal injury death 1990 category principal judgmentparties mr mackey plaintiff hunter valley garden pty ltd defendant representation counsel mr r sheldon m e e welsh plaintiff mr ahmad defendant solicitor brydens lawyer plaintiff holman webb lawyer defendant file number 2017 356821publication restriction niljudgmentnature casethe plaintiff mechanical ventilation installer since 2002 run business incorporated entity called belair fan installing fan ducting commercial premise late evening saturday 31 october 2015 early following morning slipped fell tile paving outdoor part defendant premise hunter valley premise combination accommodation dining area bar also tab facility plaintiff came defendant premise golfing weekend group male friend dubbed musketeer group enjoyed golfing weekend away 15 year plaintiff arrived day driven friend mr head day question plaintiff played full game lunch attended presentation certain prize awarded made use tab facility preparing dinner thereupon plaintiff retreated room shared two others roused join group dance beer garden band walking direction bathroom plaintiff say slipped fell said left leg slipped came right knee fell backwards onto tile soon thereafter escorted outside peremptorily security officer believed plaintiff intoxicated proceeding plaintiff seek damage defendant negligence plaintiff say suffered physical injury right knee left ankle remains incapacitated result injury plaintiff also say suffered mental harm result accident said work upon return restricted capacity work led concern importance self worth turn led tension problem member plaintiff family position became desperate 2017 contemplated taking life say depression remains continuing disability plaintiff claim damage past future economic loss past future pocket expense future domestic assistance non economic loss part evidence trial concluded defendant conceded owed duty care breached duty care plaintiff vigorously contest negligence caused injury disability loss contended plaintiff relies upon defence contributory negligence pleaded basis plaintiff failed keep proper lookout relation question assessment damage would allow non economic loss modest amount past treatment expense allowance future economic loss future care future treatment expense difficulty approach premised significant degree submission causation whether particular harm sustained meant accept causation various head damage made defendant little say quantum circumstance leading slip fallnotwithstanding defendant belated admission breach duty remains relevant trace event led plaintiff slip fall specifically remain relevant defence contributory negligence defendant attacked plaintiff credit insubstantial degree basis evidence circumstance leading fall including notably extent consumed alcohol day last aspect defendant plead applicability provision inpart 6of thecivil liability act2002 |
Swan v The Queen [2013] VSCA 226 (30 August 2013).txt | swan v queen 2013 vsca 226 30 august 2013 last updated 13 march 2014supreme court victoriacourt appeal apcr 2012 0236jarratt keith swanappellantvthe queenrespondent judgesmaxwell p bongiorno coghlan jjawhere heldmelbournedate hearing9 august 2013date judgment30 august 2013medium neutral citation 2013 vsca 226judgment appealed fromdpp v swan unreported county court victoria judge cannon 4 march 2011 criminal law appeal conviction culpable driving causing death appellant pleaded guilty alternative charge dangerous driving causing death crown led evidence appellant using heroin prior offending history appellant heroin addiction evidence led show causal link taking heroin offending tendency notice filed application dispense filing notice lead evidence appellant history heroin addiction evidence irrelevant highly prejudicial substantial miscarriage justice appeal allowed retrial ordered patel v queen 2012 hca 29 2012 86 aljr 954applied appearance counselsolicitorsfor appellantmr j mcloughlinvictoria legal aidfor respondentmr gyorffy c mr c hyland solicitor public prosecutionsmaxwell p bongiorno ja coghlan ja 1 8 30 14 january 2009 motor vehicle driven jarratt keith swan struck pedestrian pedestrian crossing controlled traffic light stud road dandenong pedestrian killed swan stop accident subsequently identified charged culpable driving causing death failing stop accident failing render assistance well summary offence unlicensed driving committed trial county court 2 upon arraignment swan pleaded guilty culpable driving guilty dangerous driving causing death statutory alternative former offence thereby reducing trial single issue whether relevant time drove vehicle culpably merely dangerously also pleaded guilty failing stop failing render assistance summary offence swan found guilty jury culpable driving two indictable offence pleaded guilty 4 march 2011 sentenced trial judge total effective sentence eight year imprisonment non parole period six year appeal conviction court pursuant leave granted tate ja 5 march 2013 one ground trial miscarried |
Industrial Relations Commission Decision 537_1990 [1990] AIRC 595;
(22 June 1990).txt | industrial relation commission decision 537 1990 1990 airc 595 22 june 1990 industrial relation commission decision 537 1990 t228 dec 537 90 print j2843 australian industrial relation commissionindustrial relation act 1988s 113application variation australian journalist association c 37713 1989 telecom aja award 1988 1 odn c 03496 1980 journalist photographer telecommunication service commissioner lewin adelaide 22 june 1990 wage rate national wage august 1989 structural efficiency principle union made necessary commitment integrity paid rate award maintained principle satisfied increase awarded decision 21 december 1989 commission decided vary telecom aja award 1988 increasing salary prescribed therein reason decision reserved publication later date reason set australian journalist association applied vary telecom aja award 1988 relation journalist photographer classification application seek increase salary prescribed 3 per cent application made pursuant structural efficiency principle august 1989 national wage case decision 2 association made necessary extra claim commitment australian journalist association management australian telecommunication corporation sworn required statutory declaration maintain integrity award paid rate award satisfied australian journalist association co operated positively fundamental review award implementing measure improve efficiency industry provide worker access varied fulfilling better paid job review measure implemented shown agreement reached party titled telecom australia australian journalist association 1989 award restructuring agreement telecom aja award 1988 agreement marked exhibit hearing record exhibit aja 3 australian telecommunication corporation respondent employer award consent award variation made accordance application increase salary 3 per cent association employer indicated consent variation operating first full pay period commence 21 december 1989 _______________________________________________________________________________ 1 print e4718 a224 1981 251 car 520 title change print h6033 a224 v015 2 print h9100 2 application meet requirement national wage case decision august 1989 accordingly award varied increase salary case 3 per cent order take effect first full pay period commence 21 december 1989 commission commissioner end text end text end text |
Llanfoyst Holdings Pty Ltd v Randwick City Council [2018] NSWLEC 1033 (25 January 2018).txt | llanfoyst holding pty ltd v randwick city council 2018 nswlec 1033 25 january 2018 last updated 21 march 2018land environment courtnew south walescase name llanfoyst holding pty ltd v randwick city councilmedium neutral citation 2018 nswlec 1033hearing date conciliation conference 23 october 19 december 2017 25 january 2018date order 25 january 2018decision date 25 january 2018jurisdiction class 1before dickson cdecision see 5 belowcatchwords development application conciliation conference agreement party orderslegislation cited land environment court act 1979category principal judgmentparties llanfoyst holding pty ltd applicant randwick city council respondent representation counsel m pearman respondent solicitor anthony boskovtiz boskovitz associate applicant ann bowen eakin mccaffery cox lawyer respondent file number 2017 192092publication restriction nojudgmentcommissioner appeal unders97of theenvironmental planning assessment act 1979 council refusal development application number da 283 2017 application seek approval demolition construction three storey residential flat building development proposed 5 llanfoyst street randwick matter conciliation conference agreement unders 34 3 theland environment court act 1979 court act reached party term decision proceeding acceptable party presiding commissioner satisfied decision one court could made proper exercise function test applied 34 3 court act consequence 34 3 act required dispose proceeding accordance decision court act also required set writing term decision 34 3 b order made give effect agreement constitute document making order give effect agreement party required make made merit assessment issue originally dispute party final order give effect party agreement unders34 3 theland environment court act 1979are 1 applicant granted leave amend development application rely upon plan referred condition 1 annexure agreement 2 appeal upheld 3 development application da283 2017 demolition existing structure construction residential flat building containing 6 dwelling basement parking associated work approved subject condition set annexure agreement dicksoncommissioner courtannexure 213 kb pdf annexure b 9 18 mb pdf amendments21 march 2018 correction made representation |
APTS Pty Ltd [2015] FWCA 1377 (6 March 2015).txt | apts pty ltd 2015 fwca 1377 6 march 2015 2015 fwca 1377fair work commissiondecisionfair work act 2009s 210 enterprise agreementapts pty ltd ag2014 7875 apts pty ltd henderson wa tingalpa qld workshop enterprise agreement 2013 2016manufacturing associated industriessenior deputy president watsonmelbourne 6 march 2015application variation apts pty ltd henderson wa tingalpa qld workshop enterprise agreement 2013 2016 1 application made approval variation theapts pty ltd henderson wa tingalpa qld workshop enterprise agreement 2013 2016 agreement application made pursuant tos 210of thefair work act 2009 act apts pty ltd agreement single enterprise agreement 2 application seek approval variation agreement follows deleting title apts pty ltd henderson wa tingalpa qld workshop enterprise agreement 2013 2016 wherever appearing inserting apts pty ltd henderson wa tingalpa qld darwin nt workshop enterprise agreement 2013 2016 b deleting clause 1 2 1 inserting following 1 2 1employed site western australia queensland northern territory c deleting clause 39 1 inserting following 39 1wa employee covered agreement shall entitled long service leave according walong service leave act 1958or waconstruction industry portable paid long service leave act 1985 qld employee covered agreement shall entitled long service leave perpart 3andpart 6of queensland industrial relation act 1991 qld building construction industry portable long service leave act 1991 nt employee covered agreement shall entitled long service leave according ntlong service leave actas force 28 august 2013 deleting clause 43 0 inserting following 43 0 public holidayspublic holiday provided national employment standard fair work act 2009for permanent employee permanent employee entitled 10 day public holiday public holiday apply casual employee following public holiday observed henderson brisbane darwin workshop 1 january new year day26 january australia daygood fridayeaster monday25 april anzac daymay day first monday may nt sovereign birthday celebrated different date wa qld labour day celebrated different date wa qld picnic day first monday august nt 25 december christmas day26 december boxing daythe following public holiday observed henderson westernaustralia daythe following public holiday observed queensland royalqueensland show brisbane employee fly fly fifo work karratha time may nominate public holiday intend observe queen birthday public holiday local public holiday called fe nacllng day queen birthday public holiday already observed employee entitled additional public holiday 3 satisfied requirement s 210 211 act relevant application approval variation met 4 application variation approved accordance 216 act shall come effect 6 march 2015 5 consolidated version agreement isattachedto decision senior deputy presidentprinted authority commonwealth government printer price code c ae403937pr561449 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 |
AOD (Guardianship) [2021] VCAT 510 (20 May 2021).txt | aod guardianship 2021 vcat 510 20 may 2021 last updated 27 may 2021victorian civil administrative tribunalhuman right divisionguardianship listvcat reference g77681catchwordsguardianship whether ongoing need guardian relevant principle theguardianship administration act 2019 power duty guardianrepresented personaodwhere heldmelbourne via teleconferencebeforemember cameronhearing typehearingdate hearing1 april 2021date order1 april 2021date written reasons20 may 2021citationaod guardianship 2021 vcat 510orderreassessment guardianship administration ordervcat order guardianship order revoked appointment administratorvcat order state trustee limited 1 mcnab avenue footscray vic 3011 appointed administrator aod state trustee limited power make decision financial matter administrator power given theguardianship administration act 2019section 46 1 52 51administrators must comply theguardianship administration act 2019 outline power duty administrator must complete send financial statement vcat approval time order due reassessment vcat request vcat make decision satisfied due disability aod capacity make decision financial matter listed order aod need administrator considering factor set insection 31of act including preference important order promote personal social wellbeing aod reassessment orderthis order applies vcat make another order anyone apply vcat reassess order time vcat reassess administration order later 30 june 2024change contact detailsif state trustee limited aod change contact detail email phone address guardian administrator must immediately inform vcat writing payment acting administratorstate trustee limited entitled payment including gst fund aod follows commission gross income received exceeding 3 3 per cent centrelink department veteran affair pension 6 6 per cent income receivedanda commission asset estate asset sold brought administration value asset commission must exceed 3 3 per cent amount 500 000 1 5 per cent amount 500 000 1 million 0 55 per cent amount 1 million 3 million 0 44 per cent amount excess 3 million asset commission must exceed 2 2 per cent asset value immediately end administration commission applies administrator otherwise received reasonable payment work vcat approves order order needed administration end death represented person commission income asset value asset gross value method calculating value definition gross value set scale charge published victoria government gazette anda fee exceeding 0 88 per cent per year capital sum invested state trustee limited common fund state trustee limited provides estate related service estate entitled payment payment rate must exceed amount scale charge published victoria government gazette cameronmemberappearances aod represented personrop applicantsusan aufgang barrister aod rophxm joint limited guardiandww joint limited guardianmr w pigram state trustee limitedms birrell state trustee limitedson aod spousedaughter ropfive friend acquaintance aodreasonsthe victorian civil administrative tribunal vcat providing reason confidential basis clause 37 1 schedule 1 thevictorian civil administrative tribunal act 1998provides unless vcat order otherwise person must publish broadcast report proceeding theguardianship administration act 2019that identifies could lead identification party proceeding introductionin written reason decision refer person subject application aod victorian civil administrative tribunal vcat given person anonymised name protect identity confidentiality personal information order vcat 1 july 2020 dww hxm appointed joint limited guardian aod power make decision aod life order self revoke reassessed later 31 december 2020 rop requested hearing reassess guardianship order hearing 1 april 2021 presiding member made order end hearing gave oral reason decision aod son asked written reason set written version reason gave hearing hearingwhen vcat hears application appoint guardian person section 29of theguardianship administration act 2019 act say person must attend hearing exception hearing go ahead without person vcat member satisfied either person wish attend attendance impracticable unreasonable despite arrangement vcat make hearing conducted teleconference aod attended evidence set others attended telephone provided evidence limited guardian aod refer dww hxm rop applicant reassessment long term companion aod susan aufgang barrister aod rop aod son spouse rop daughter number friend acquaintance aod wayne pigram margaret birrell state trustee limited rop assistance counsel m aufgang described reason sought reassessment guardianship order rop considers aod domestic partner fiancée characterisation relationship subject debate amongst party think guardianship order revoked guardian power limited aod live decision aod live aged care facility berwick made guardian decision made order rop think guardian acted beyond decision making power conferred vcat order made decision aod outing aged care facility including whether overnight longer period social leave able go activity engage social leave dww one joint limited guardian told guardian agreeable revocation existing guardianship order long undertaking aod continue reside aged care facility however belief need another guardianship order made appointing guardian make decision daily living issue aod agreed limited guardian aod considered responsible aod overnight social leave aged care facility represented capacity management facility believed necessary wellbeing aod dww told guardianship order needed aod many friend acquaintance wish visit spend time including attendee hearing company monopolised rop situation exacerbated covid 19 related restriction permitted visit outing aged care facility dww considers important aod wellbeing maintains social relationship guardian appointed manage organise fair balanced plan around social arrangement aod dww also thought guardian needed determine activity aod engage stay social leave aged care facility guardian view shared several attendee hearing aod rop camping trip past guardian consider safe activity aod rop company home 2020 fractured ankle resulting hospitalisation could put risk similar harm rop aod son told always need guardian aod competing interest influence ongoing conflict difference opinion care wellbeing view shared attendee hearing including view need full guardianship aod aod told need want guardian decision living aged care facility made although would rather live home rop accepts remain living aod told quite able make decision spends time told decide chooses including going social leave aged care facility aod told want maintain social relationship well important relationship rop wish exclude anyone visiting wish people would mind business principlesa person including vcat exercising power function duty act must regard principle set insection 8of act summary person disability given practicable appropriate support make participate decision express preference develop decision making capacity preference person disability direct decision made person far practicable andpowers function duty must used way least restrictive ability person disability decide act possible circumstancessection 9of act set principle apply person making decision represented person apply guardian administrator supportive guardian supportive administrator making decision represented person would also apply vcat advising appointed decision maker power duty preference aodwhen appointing guardian vcat must apply principle insection 8 including aod preference direct decision far practicable aod preference relevant also vcat decides whether person need guardian section 31 whether proposed guardian suitable person appointed section 32 3 aod attended hearing spoke preference aod told need want guardian personal matter make decision see spends time wish maintain personal relationship well relationship rop based evidence satisfied aod want guardian disability decision makingsection 30 2 act say vcat may appoint guardian person satisfied person disability person decision making capacity relation personal matter subject application new medical report provided support reassessment application medical report provided time original application state aod lack capacity make decision general living circumstance satisfied aod lack capacity decision kind aod opposed original guardianship order time made preference live rop home berwick lived short period prior hospitalisation 2020 however guardian appointed make decision live several residential care facility considered guardian consultation rop aged care facility berwick chosen aod settled decision made life accordingly need guardianship order determine aod live need guardianthe limited guardian appointed vcat 20 july 2020 supported aod son several attendee hearing asserted aod need guardian manage social activity visitor outing section 30 2 b act say vcat may appoint guardian person satisfied person need guardian section 31of act set number matter vcat must consider determining whether person need guardian vcat must consider person preference far ascertained whether decision relevant personal matter could suitably made informally could reasonably made mediation negotiation similar method vcat must also consider wish primary carer relative person direct interest application must also consider desirability preserving existing relationship important person disability considered aod preference want guardianas summarised also considered possible informal mean making decision personal matter wish family member friend wish aod family member friend odds companion rop rop daughter opposed appointment guardian aod son relative friend favour guardian appointed taking account decision making principle set insection 8of act provision contained insection 31of act appointment guardian particularly preference aod need guardian make decision kind discussed made appointing guardian power suggested plan may visit aod nature rostered arrangement determine whether aod may go social leave rop long activity may engage would significantly restrictive aod order would interfere relationship importance primarily relationship rop satisfied daily living arrangement could organised le restrictive mean taking account satisfied aod need guardian reason guardianship order revoked cameronmember |
N97_15808 [1998] RRTA 3672 (3 August 1998).txt | n97 15808 1998 rrta 3672 3 august 1998 refugee review tribunaldecision reason decisionrrt reference n97 15808country reference china prc tribunal member paula cristoffaninidate decision 3 august 1998place sydneydecision tribunal affirms decision grant protection visa catchword political opinion social group well founded insufficient evidence credibilitybackgroundthe applicant citizen china prc arrived australia 1997 february 1997 lodged application protection visa department immigration multicultural affair themigration act 1958 act april 1997 delegate minister immigration multicultural affair refused grant protection visa may 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 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 convention normally give protection economic hardship applicant anor v miea anor 1997 142 alr 331 per gummow j 374 mean person whose sole reason migration desire leave generalized difficult economic condition achieve better economic standard living generally excluded protection convention 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 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 anclaims evidencein july 1998 tribunal wrote applicant advising considered paper relating application unable make favourable decision information alone applicant invited give oral evidence tribunal injuly 1998 applicant advised contact tribunal within specified period hearing would take place decision may made evidence available tribunal letter sent applicant address service accordance migration regulation response received applicant attend scheduled hearing 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 provided following information protection application stated born guangdong lived came australia according information provided obtained passport 1996 submission department applicant claimed grandparent beaten death communist grandfather declared landlord communist took 1949 claimed father suffered prejudice forced reformation labour claimed result family classified anti revolutionary cultural revolution applicant said father committed suicide avoid mistreatment meted time included forced participate daily parade street said mother sacked forced work part time support four child applicant claimed submission high school graduation government allow continue studying family background claimed sent country side unable return home daughter anti revolutionary claimed upon return worked factory continuously discriminated assigned heaviest job paid lowest salary claimed rejected boyfriend family background applicant claimed became interested humanity friend wrote deng xiao ping making suggestion change chinese socialism claimed two week later detained according upon release dismissed factory lived vagrant life applicant submitted arrested tiananmen square massacre 1989 forced undertake self criticism self examination warned would sentenced death free anti revolutionary idea applicant claimed 1995 started working company 1997 chance leave china seek democracy freedom fear return china would persecuted government like grandfather father review application applicant claimed complete schooling forced go country restated claim contained application protection form eight year education relation discrimination encountered employment result background claimed pay bribe move factory company submitted although material substantial change china still unemployment people low standard living applicant third claim opposes china one child policy submission department alleged tried best help people wanted one child claiming fined result protection application claimed disagreed policy assisted best friend second child unsuccessful abortion earlier pregnancy eight month gestation subsequent infanticide child claimed hidden friend home birth child claimed condemned fined however last submission also claim friend rang australia tell forced sterilization fined security guard looking applicant would jailed assisting illegal birth independent evidencethe cultural revolution phenomenon affected whole china million people directly affected many thousand family ostracised many people unfairly brutally victimised period china history officially ended late 1970 china underwent process normalisation ending type treatment cable bj 44445 dfat 7 december 1990 cx512 finding reasonsas applicant availed opportunity attend oral hearing tribunal information contained written material make determination applicant made number serious claim yet provided little support avail opportunity discus claim hearing particular discus assertion contrast information independent source discus inconsistences implausibility arising evidence applicant claimed fear jailed persecuted like father grandfather return china claimed result background family tragic history claim included death grandparent communist take 1949 suicide father result harm suffered cultural revolution difficult circumstance mother bringing four child suffering included allowed continue studying sent labour country side alleged discrimination work rejected boyfriend tribunal find tragedy may well taken place applicant born result persecution applicant reasonably foreseeable future situation china changed since communist take 1949 since cultural revolution ended late seventy see applicant agreed assessment review application drew attention unemployment low standard living however stated convention normally give protection economic hardship applicant claimed oppose communist party complained detained forced undertake self criticism self examination dismissed work warned would sentenced death free anti revolutionary idea claimed detained dismissed factory worked consequently lived vagrant life claimed arrested tiananmen square massacre 1989 forced undertake self criticism self examination applicant provided detail support assertion contrasted evidence contained initial application form reiterated submission accompanying review application indicate employed continuously period going work company 1995 two year coming australia tribunal serious doubt therefore claim took place result alleged opposition communist party applicant third claim jailed assisting best friend secret pregnancy initially claimed oppose china one child policy helped people wanted one child fined later claimed assisted best friend second child said condemned fined also claimed friend rang tell forced sterilization fined authority looking applicant would jailed assisting illegal birth applicant may helped friend second child claimed fined initial submission made allegation review submission also claimed received fine penalty assistance friend therefore tribunal doubt fined authority would interest applicant reason moreover seems implausible applicant would jailed offense person child received fine 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 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 |
Re Berzins Specialty Bakeries Pty Limited v Monty'S Continental Bakery (Vic) Pty Limited (Trading As Monty'S Continental Bakery) [1987] FCA 346 (9 October 1987).txt | berzins specialty bakery pty limited v monty continental bakery vic pty limited trading monty continental bakery 1987 fca 346 9 october 1987 federal court australiare berzins specialty bakery pty limitedand monty continental bakery vic pty limited trading monty scontinental bakery nsw g213 1987trade mark trade practicescourtin federal court australianew south wale district registrygeneral divisionjenkinson j 1 catchwordstrade mark infringement whether use good faith description character good trade practice consumer protection misleading deceptive conduct passing use baker name pritikin bread wrapper likelihood confusion bread manufactured registered user trade mark pritikin trade mark act 1955 s 24 26 1 59 60 64 1 b 78trade practice act 1974 s 52 53and55f h faulding co ltd v c ltd 1965 hca 72 1964 112 clr 537mark foy ltd v davy coop co ltd 1956 hca 41 1956 95 clr 190caterpillar loader hire holding pty ltd v caterpillar tractor co 1983 fca 145 1983 48 alr 511hunters product pty ltd v r c product pty ltd 1987 atpr 48 563parkdale custom built furniture pty ltd v puxu pty ltd 1982 hca 44 1982 149 clr 191hearingmelbourne9 10 1987counsel applicant mr j l bannonsolicitors applicant dawson waldroncounsel first named respondent mr yatessolicitors first named respondent mcnab archerdecisiontrial question proceeding 2 word pritikin name american nathan pritikin well known country present decade word registered part australian register trade mark trade mark respect good class 30 includes bread 7 year 19 november 1981 second respondent registered proprietor trade mark nathan pritikin died gaining registration applicant since august 1983 registered user australia trade mark bread roll muffin shape size frozen fresh applicant first respondent bake sell bread competition applicant claim first respondent injunctive relief damage respect use respondent trade bread word pritikin use alleged constitute infringement trade mark contravention ofss 52 53and55of thetrade practice act 1974and passing 3 second respondent joined compliance 78 trade mark act 1955 taken part proceeding question tried question sense word used 29 proceeding except assessment damage 4 nathan pritikin published widely book mean opinion concerning dietary practice thought conducive good health human surname opinion became well known country surname commonly used adjectivally signify conformity one opinion 5 albertus franciscus antonius hartleman director chief baker first respondent learnt trade baker holland whence emigrated 1981 queensland employed lacon investment pty ltd carried business baking selling bread wholesale name monty continental bakery february 1983 lacon investment pty ltd commenced sell bread colourless plastic wrapper printed brown word number pictorial representation head upper torso man jovial expression heavy jowl dressed baker cap coat picture business name monty continental bakery formed part printing plastic wrapper packaged bread baked lacon investment pty ltd sale december 1986 company business state victoria first respondent respondent wrapper lacon investment pty ltd commenced use february 1983 also bore printed legend made according pritikin program 1984 mr hartleman came melbourne lacon investment pty ltd commenced september 1984 bake sell bread wrapper respect except address phone number bakery identical used queensland august 1986 substituted wrapper word made according pritikin program word monty continental bakery pritikin style bread type face size substantially unobtrusive change word wrapper colour general appearance print wrapper unchanged first respondent bought lacon investment pty ltd business carried victoria name monty continental bakery wrapper continued use april 1987 new wrapper substituted 6 new wrapper colourless plastic printing red white nutmeg dark brown beige background name monty continental bakery printed white red quadrilateral one end superimposed figure jovial baker device repeated five time wrapper principal device also repeated five time consists four word arranged thus wholemealpritikinstyle breadthe word wholemeal type 0 5 centimetre high two instance word pritikin type 2 75 centimetre high except initial capital p k 4 centimetre high letter word style bread type ranging height 0 75 centimetre 1 25 centimetre three instance initial capital p 2 centimetre high letter proportionately le two instance first described five instance word printed dark brown colour letter word pritikin outlined nutmeg colour 7 first respondent sell wrapper described one kind bread applicant sell bread loaf similar size weight shape colourless plastic wrapper printed many word figure black brown red pale yellow background word pritikin printed dark brown repeated 25 time wrapper one end wrapper word pritikin repeated ten time column one side wrapper ten time column side underneath word pritikin printed three remaining five instance word stone ground whole wheat bread two instance word stone ground whole wheat applicant also sell kind bread trade mark pritikin 8 applicant material time carried business name riga word printed three time wrapper described black letter le 0 5 centimetre high within red circle largest three riga device diameter 2 25 centimetre whole enclosed within circular black line diameter outer circle 3 centimetre instance riga device immediately word pritikin capital letter p letter k word pritikin 25 instance height 1 00 1 5 centimetre letter 1 00 centimetre high 9 applicant wrapper used trade new south wale since december 1983 august 1985 use queensland victoria tasmania northern territory victoria applicant first respondent sell substantial quantity bread wrapper described respectively designed regard bread competition class purchaser reason doubt correctness view brand sold shop supermarket often stacked close together display frame case brand bread word pritikin word device printed pritikin disposed wrapper easily seen wrapper encloses bread 10 submission mr yates counsel first respondent applicant trade mark invalid registrable application registration lodged 19 november 1981 mark distinctive registered proprietor good commencement proceeding 15 may 1987 11 registration granted mere word pritikin name represented special particular manner signature 24 trade mark act 1955 required word shown distinctive order registrable part register evidence disclose material supported application registration particular evidence whether 1981 word rare surname mr yates relied respect time application registration made respect time commencement proceeding evidence suggesting name pritikin associated good class 30 particular kind food rather certain regime diet exercise regime evidence showed infrequently indicated expression pritikin lifestyle evidence name pritikin evoked advertence dietary regime set principle nathan pritikin propounder diet consist one several particular kind food exclusion kind mr yates submission association idea word showed least tended show word adapted distinguish good nathan pritikin may connected course trade good respect connexion subsists see trade mark act 1955 26 1 12 unnecessary express concluded opinion upon submission application time registration sought 1981 use trade mark said think name pritikin well known country 1981 connexion certain current dietary fashion example whole grain cereal preferred refined salt fat content minimised word time adapted distinguish bread manufactured accordance fashion however may 1987 use trade mark applicant bread wrapper established substantial connexion word indication origin bread sold wrapper member public identify bread sold name thought name signified commercial connexion baker bread nathan pritikin well known dietary adviser even member public read heard nathan pritikin opinion desirable undesirable constituent bread opinion fact congruous assertion printed wrapper bread contain would likely suppose assertion would meet approval fashionable dietary adviser nathan pritikin widely recongised recipe wrapper give expression currently popular idea good health nothing wrapper appearance bread impede public acceptance idea prominence word pritikin wrapper suggests word brand name nathan pritikin association owner brand name evidence indicated word riga treated member public officer servant applicant brand name trade mark evidence show find public recognition latter word displaced public consciousness former word distinctive bread 13 section 59 60 trade mark act 1955 provide 59 legal proceeding relating aregistered trade mark including applicationsunder section 22 original registrationof trade mark registration anyassignment transmission trade markshall deemed valid unless thecontrary shown 60 legal proceeding relating trademark registered part register including application section 22 instituted expiration 3 yearsfrom date registration trade markshall removed register beheld invalid ground aregistrable trade mark section 24 unless proved thecommencement proceeding distinctiveof good service registeredproprietor 14 proved registered trade mark commencement proceeding distinctive bread put trade applicant wrapper described 15 mr yates next submitted yet infringement applicant trade mark use made word pritikin first respondent latest wrapper use word trade mark use description composition bread collocation word wholemealpritikinstyle bread signified mr yates submission bread enclosed wrapper wholemeal bread recipe conformed recommendation nathan pritikin collocation pritikin could understood used indicate connexion bread proprietor trade mark pritikin submitted 16 letter word pritikin first respondent wrapper distinctly larger letter word wrapper size word position wrapper printed colour contrast dark brown letter nutmeg outlining letter pale beige background draw eye word pritikin tend distract attention word even word noticed one inclined find conceive word pritikin cynosure wrapper trade mark bread word monty continental bakery thin white letter le centimetre high cursive script attract attention 17 submitted 64 1 b trade mark act 1955 precluded conclusion first respondent use pritikin constituted infringement trade mark use good faith person description character good would inclined doubt nathan pritikin ever prescribed idiosyncratic recipe bread name needed description doubt advertised recipe first respondent bread closely conformed nathan pritikin recommended bread merited description however may prominence word accorded wrapper particularly comparison word style bread indicate descriptive use pritikin lead conclude case use word good faith description character bread rather use word trade mark cf fh faulding co ltd v c ltd 1965 hca 72 1964 112 clr 537at 534 545 18 conclusion use word pritikin first respondent wrapper use word trade mark found first respondent seen infringing applicant trade mark notwithstanding word monty continental bakery may show bread commercial origin applicant mark foy ltd v davy coop co ltd 1956 hca 41 1956 95 clr 190at 205 caterpillar loader hire holding pty ltd v caterpillar tractor co 1983 fca 145 1983 48 alr 511at 513 514 19 applicant alleged use word pritikin first respondent bread wrapper contravened provision part v thetrade practice act 1974in several way 20 contended applicant behalf presence word respondent wrapper likely deceive member public mistaken belief bread within wrapper commercial origin bread sold applicant wrapper described claim may conveniently considered claim use word wrapper first respondent passed bread bread sold applicant wrapper bread sold applicant 21 applicant wrapped loaf compared first respondent wrapped loaf visual comparison make obvious two different commercial origin dissimilarity two wrapper many member public seen applicant wrapped loaf would realise first inspection first respondent wrapped loaf latter loaf origin different former even occasion available example former make comparative examination dissimilarity appearance neither unobtrusive similarity likely find mislead mistaken belief specified substantial proportion member public noticing one first respondent wrapped loaf become accustomed seeing applicant wrapped loaf type face well colour pritikin printed wrapper similar distinctive type face word either wrapper printed type word either wrapper printed type large size word pritikin wrapper member public become accustomed seeing applicant wrapped loaf noticing one first respondent loaf would find come think refer applicant wrapped loaf pritikin loaf without advertence word applicant wrapper riga feature get red circle across riga printed person would find take word pritikin first respondent wrapper word come recognise applicant bread said two competing product may also said competing bread loaf 22 article small price commonly gathered shopping trolley purchase second examination consideration person unwilling accord short time making decision whether buy article although two competing product commonly placed display retail sale many consumer see choosing either consumer seen respondent product notice applicant product near occasion respondent product visible hunter product pty ltd v r c product pty ltd 1987 atpr 48 563 48 569 23 class consumer likely affected similarity associated one word two wrapper comprehend wide variety mental alertness competence memory class doubt include person pritikin nothing particular concatenation eight letter particular sound become consumer applicant bread reason like taste finding substantial number consumer would induced form act upon mistaken belief first respondent loaf applicant loaf seeing word pritikin wrapper part australia retail sale applicant bread wrapper described preceded retail sale first respondent bread wrapper currently used respondent inducing mistaken belief would first respondent misleading conduct done contravention ofs 52of thetrade practice act 1974 opinion regard relatively low price loaf failure recognise difference get whereby mistake would avoided cannot characterised think failure consumer take reasonable care interest 24 consideration lead conclude use place applicant wrapper already use word pritikin first respondent wrapper way described contravention ofs 52of thetrade practice act 1974lead also conclusion use word place constitutes tort passing first respondent loaf applicant loaf opinion 25 contended applicant behalf use retail trade first respondent wrapper constituted representation bread wrapper endorsement approval orlicence second respondent ii made according exclusiverecipes programme secondrespondent iii made accordance domesticand household recipe set thebook dr nathan pritikin entitled pritikin program diet exercise iv materiallydifferent bread made theapplicant according exclusiverecipes programme made available tothe applicant exclusive licensee making representation alleged constituted contravention ofs 52of thetrade practice act 1974 26 evidence person formed belief bread first respondent wrapper endorsement approval licence respondent pritikin program inc eo nomine belief bread wrapper made according recipe programme respondent pritikin program inc eo nomine evidence several witness knowing fame nathan pritikin publicist dietary practice conducive good health witness led observation word pritikin wrapper belief person put bread trade wrapper permission nathan pritikin person invested authority control use nathan pritikin name trade use word connection bread wrapper also evidence witness holding belief stated believed bread made according recipe conformed dietary opinion nathan pritikin 27 formation belief nathan pritikin person authority control commercial use name given permission use word pritikin trader put bread wrapper trade cannot opinion said induced conduct done contravention ofs 52of thetrade practice act 1974 contributing formation belief belief use name well known person way nathan pritikin name used wrapper would lawful person person invested authority person give permission formation erroneous belief law misleading conduct part first respondent contributed conduct cannot held fall withins 52unless consumer labouring anymistake imperfection understanding oflaw would would likely misledor deceived conduct section 52operates milieu external legalorder character conduct whichfalls consideration unders 52is bedetermined reference external legalorder exists conduct engagedin parkdale custom built furniture pty ltd v puxu pty ltd 1982 hca 44 1982 149 clr 191at 225 per brennan j assert trader responsible wrapper may said assert collocation word wholemeal pritikin style bread making bread accordance opinion nathan pritikin bread made assert represent nathan pritikin given approval maker done permission print name wrapper belief nathan pritikin person invested authority given approval permission self induced 28 perhaps desirable point applicant seek advance thetrade practice act 1974a case belief formed likely formed person aware existence australian registered trade mark pritikin person previously formed belief word pritikin applicant bread wrapper trade mark consequence mental process influenced awareness belief name applicant wrapper 29 representation first respondent bread made conformity opinion nathan pritikin subject bread bread making shown false misleading evidence establish nathan pritikin held opinion bread made conformity precise inflexible recipe precise inflexible manufacturing procedure evidence establish substantial departure nathan pritikin precept manufacture first respondent bread justify conclusion assertion wrapper false misleading 30 third fourth four alleged representation previously quoted evidence justify conclusion either made except sense person mistook one first respondent loaf one applicant loaf mistaking one wrapper consequence misleading similarity word pritikin one word could said induced believe bread first respondent wrapper bread made applicant 31 alleged representation dealt pleaded also substantially similar term contravention ofs 55and several paragraph ofs 53of thetrade practice act 1974 unnecessary deal guise 32 reached decision several question tried decision enable conclusion reached final injunctive order made favour applicant counsel applicant counsel first respondent joined asking conclusion reached afforded opportunity making submission expressed conclusion term order accordingly order make consideration proceeding adjourned date fixed |
Wester & Wester [2010] FamCA 1228 (20 December 2010).txt | wester wester 2010 famca 1228 20 december 2010 last updated 21 february 2011family court australiawester wester 2010 famca 1228family law child interimapplicant m westerrespondent mr westerindependent child lawyer m powerfile number syc4158of2007date delivered 20 december 2010place delivered sydneyplace heard sydneyjudgment stevenson jhearing date 30 november 2010representationcounsel applicant mr fostersolicitor applicant janice l lindopcounsel respondent mr wester representing himselfsolicitor independent child lawyer legal aid nsw sydneyorders 1 mother application vary order 15 august 2006 dismissed without prejudice application expert report available notedthat publication judgment pseudonymwester westeris approved pursuant tos 121 9 g thefamily law act 1975 cth family court australia sydneyfile number syc 4158 2007ms westerapplicantandmr westerrespondentreasons judgmentthe proceedingson 27 october 2010 mother filed amended application vary final parenting order made consent 15 august 2006 relation party child born july 1999 11 andr born february 2001 9 order provide child live father school monday commencement school wednesday week conclusion school friday commencement school monday alternate week child live mother school wednesday commencement school friday week conclusion school friday commencement school monday alternate week school holiday shared equally order make provision time parent special occasion mother sought child live spend time father alternate weekend half school holiday father sought existing order continue claimed change circumstance sufficient warrant reconsideration parenting arrangement either interim final basis rice asplund1978 6famlr 570 authority well known necessary recite relevant passage short reason independent child lawyer icl proposed child live mother spend time father 6 00pm friday commencement school tuesday alternate week wednesday conclusion school 7 30pm half school holiday icl arranged child interviewed social worker mr b employed legal aid commission nsw prepared report dated 2 november 2010 magellan report prepared pursuant order made 20 august 2010 report detailed allegation mother father masturbated front child accessed pornography computer joint investigation response team refused accept referral case closed interim hearing mother specifically withdrew allegation sexual impropriety part father inferentially change circumstance identified icl clear cogent wish expressed child mr b relation reported 7 told like current arrangement spending time parent asked responded would prefer mum want mum monday tuesday thursday wednesday dinner dad mum pick want go school dad 8 effectively wanting spend every second weekend father wanting mid week dinner father wednesday rather sleepover home week 9 told father organised mother considers unable rely much mother word organised organised really asked long problem said really looking forward gong guide thing remember stay late dad slept mum tried tell tried ring sort thing something would expect dad 10 asked either parent attempted influence viewpoint time spend said mum put pressure dad know whether blackmail telling feel organised asked told guide thing said live mum able go guide thing party spend time 13 apart concern father apparent lack reliability organisation said fundamentally enjoys time spends mother spoke quite animated way time mother said feel much comfortable mum house dad house mum place usually stuff together u mum mr c r dad feel separated house enjoy thing dad much mum exciting mum thing planned exciting 16 perhaps surprisingly asked rank certainty wanting spend le time father using 10 point scale 10 representing certain zero representing sure said 8 7½ 10 sure wanted spend le time father relation r mr b reported 22 using genogram developed earlier assistance r asked rank sense closeness using hierarchy closeness case r declared strong preference mother placed first position followed mother partner mr c nanny poppy grandma said dad sort last spend much time close dog r fox terrier cross pretty much dad r told despite placing father last hierarchy mostly like current 50 50 parenting arrangement quickly added like would like one day mum continued would like sleep extra night mum wake tuesday night would best wednesday really confusing day problem getting school crossing road care day would like one day mum asked r little reasoning wanting time mother said dad dating lot woman pay lot attention u year 3 year 4 wanted half changed mind want one day mum said solicitor told dad wanted one day mum said mate worried dad really mad angry kill 29 discussion asked r certainty wanting spend time mother using 10 point scale r told 9 10 certain wanted spend extra day mother said little bit scared hurting dad feeling sure want father challenged mr b expertise objectivity told mr b would favour mother use father actual word tremendously biased reason think mr b interview child professionally appropriately accurately report view hand mr b recognised limitation assessment dealing issue potential difficulty r relationship father stated judgment always difficult make however without detailed family assessment involving interview parent many disputed allegation fact proceeding context interim hearing impossible make finding relation issue question ultimately whether child expression view mr b warrant interim reconsideration parenting arrangement appreciate mother made number complaint father behaviour complaint fully explored investigated final hearing court assistance full assessment single expert family consultant may well appropriate interim arrangement child reconsidered expert report becomes available decision interpreted bar consideration interim arrangement difficulty may well countervailing consideration child view inclined vary existing parenting order interim basis stage certify preceding thirteen 13 paragraph true copy reason judgment honourable justice stevenson delivered december 2010 associate date 20 december 2010 |
SZVCQ v Minister for Immigration & Anor [2015] FCCA 738 (26 March 2015).txt | szvcq v minister immigration anor 2015 fcca 738 26 march 2015 last updated 1 april 2015federal circuit court australiaszvcq v minister immigration anor 2015 fcca 738catchwords migration refugee review tribunal protection class xa jurisdictional error application dismissed legislation migration act 1958 s 48a 476 477federal circuit court act 1999 17afederal circuit court rule 2001 r 13 10spencer v commonwealth australia 2010 241 clr 118 2010 hca 28applicant szvcqfirst respondent minister immigration border protectionsecond respondent refugee review tribunalfile number syg 481 2015judgment judge streethearing date 26 march 2015date last submission 26 march 2015delivered sydneydelivered 26 march 2015representationsolicitors applicant appearance behalf applicantsolicitors respondent m b griffenaustralian government solicitororders 1 proceeding summarily dismissed 2 applicant pay first respondent cost fixed sum 1367 federal circuit courtof australiaat sydneysyg 481 2015szvcqapplicantandminister immigration border protectionfirst respondentrefugee review tribunalsecond respondentreasons judgmentthis application within court jurisdiction unders 476of themigration act 1958in respect applicant seek constitutional writ minister respect decision dated 13 january 2015 matter respect extension time required unders 477 ground application follows 1 second protection visa application lodged 8 1 2015 accepted valid 2 case szgiz v miac applicant belief case relevance case complementary protection visa claim properly assessed receive letter present claim interview also receive refusal letter meant time frame allowed apply merit review elapsed sic 3 case szrnj v miac case show applicant second protection visa application deemed invalid federal circuit court jurisdiction consider case although later dismissed first court date face application relevantly provides court may hear determine interlocutory final issue may give direction future conduct proceeding matter listed 9 30am applicant presented communication court 9 36am applicant made communication registry 9 36 identified unable attend court today due illness would provide copy medical certificate medical certificate signed dr christopher dated 25 march 2015 relevantly say certify opinion x unfit work 26 03 2015 26 03 2015 inclusive due gastroenteritis acceptable applicant simply contact registry forward medical certificate relating fitness work required attend court court contacted applicant indicate matter would stood 3pm today permit applicant attend response applicant forwarded registry email relevantly provided follows dear honourable judge asked friend write behalf requesting today hearing adjourned another day unwell medical certificate obtained late last night sent email court morning advised brother 1245 advised officer court hearing morning stood 3pm write respectfully state sick unable attend case decided today cant adjourned another day ask kindly consider following 1 never protection visa claim properly assessed dibp rrt never recieved letter interview refusal original decision found almost 8 month later 2 lodged second protection visa application deemed invalid main reason appeal 3 understand law changed result sgiz case believe still right claim assessed opinion court power allow second protection visa application proceed please look case point issue going raise court today adjournment granted would greatful thank time sincerely x court endeavoured contact applicant telephone number provided informed applicant utility granting adjournment proceeding proceeding clearly doomed failure adjournment unnecessarily add cost party utilise court time clear ground identified fail identify jurisdictional error minister decision considering exercise court summary jurisdiction 17a federal circuit court act 1999 r 13 01 federal circuit court rule 2001 take account principle caution identified inspencer v commonwealth australia 2010 241 clr 118 2010 hca 28 24 25 59 60 applicant right merit review respect invalid application lodged applicant 8 january 2015 applicant refused protection class xa visa 9 july 2013 clear 48a applicant person migration zone made application protection visa grant visa refused circumstance entitled make application protection visa migration zone satisfied jurisdictional error approach adopted minister decision dated 13 january 2015 identifying application protection visa invalid circumstance proceeding clearly deemed failure clearly satisfied proceeding reasonable prospect success proceeding summarily dismissed certify preceding ten 10 paragraph true copy reason judgment judge streetassociate date 30 march 2015 |
In the matter of an application by RBI for admission to the Legal Profession [2022] QCA 156 (23 August 2022).txt | matter application rbi admission legal profession 2022 qca 156 23 august 2022 last updated 23 august 2022supreme court queenslandcitation matter application rbi admission legal profession 2022 qca 156parties matter thelegal profession act 2007 qld thesupreme court admission rule 2004 qld andin matter application rbi applicant file proceeding xx 20xxdivision court appealproceeding application admissionoriginating court court appealdelivered 23 august 2022delivered brisbanehearing date 15 august 2022judges bowskill cj dalton ja wilson jorder application admission legal practitioner dismissed catchword profession trade lawyer qualification admission fit proper person applicant applies admission legal practitioner applicant met academic practical legal training requirement admission applicant history domestic violence offence subject domestic violence protection order applicant material suggested may mental health issue legal practitioner admission board issued notice applicant pursuant tos 40of thelegal profession act 2007 qld theact applicant failed comply thes 40notice legal practitioner admission board issued notice applicant pursuant tos 87of act applicant refused comply thes 87notice legal practitioner admission board opposed applicant admission whether applicant fit proper person admitted legal profession queenslandlegal profession act 2007 qld s 9 31 34 40 87solicitors l v strachan brisbane criminal lawyer applicantm timmins legal practitioner admission board 1 court application first filed january 2022 applicant applies unders 34of thelegal profession act 2007 act admitted legal profession eligible admission legal profession achieved requisite academic practical legal training qualification however question whether present fit proper person admitted 1 2 regard applicant affidavit filed 25 march 2022 disclosed number suitability matter 2 follows number traffic infringement period 2007 2016 b summary offence committed variously 2005 2017 including fare evasion littering parking violation well failing vote c may 2009 violently attacked boyfriend charged two offence unlawful assault circumstance aggravation occurred domestic relationship convicted offence trial magistrate court another state january 2011 delay offence conviction explained failure attend initial trial date set may 2010 result charged breach bail applicant exhibit copy remark sentencing magistrate exhibit copy criminal history show fined relatively small amount money offending nonetheless given matter ran trial sentencing remark ought court application even magistrate regarded offending relatively minor may well remark bear upon applicant state mind honesty relation matter applicant swore 13 regretful sorry excuse understand crime present serious suitability issue form courteous character become recovered personality problemand downward spiral learning consequence treating people kindness transformed self love underlining added march 2019 applicant named respondent police protection notice issued thedomestic family violence protection act 2012 qld aggrieved boyfriend ex boyfriend applicant say relationship three year call x couple relocated another state queensland x told applicant whilst way queensland longer wished relationship seems applicant accept relationship 6 march 2019 applicant got x car would get drove police station asked protection order allegation physical altercation protection order made similar incident involving applicant x came queensland revealed police investigation e december 2019 applicant physically violent x police called man claimed assaulted made another protection order application police unable find applicant serve march 2020 applicant charged possession cannabis pipe convicted plea guilty 15 january 2020 released upon good behaviour recognisance order three month subject condition attend drug diversion program applicant say month december 2019 frequently contacted x attended home desperate make work honestly believed would love served march 2020 applicant say know happened attend hearing relation 2019 2020 relationship issue applicant say 26 higher self esteem afraid alone need take part toxic relationship suffered stressor unsafe accommodation inadequate socialisation childhood adolescence consistent positive role model learn good behaviour commenced adulthood poor emotional regulation low self esteem excuse previous offending embarrassed regretful become much better person f 16 march 2022 applicant attended holland park magistrate court make application protection order lifted made application thinking respondent would appear appear magistrate explained needed evidence support application withdraw withdrew application protection order remains place court note document relevant history protection order exhibited applicant affidavit document current protection order exhibited example document need exhibited application 3 legal practitioner admission board theboard issued notice dated6 april 2022unders 40of act requesting applicant provide additional information material including current report psychiatrist psychologist relation personality problem disclosed paragraph 14 affidavit applicant failed comply notice instead provided letter general practitioner wrote letter addressed may concern consisted two sentence verify applicant currently mental health concern warranting either psychology psychiatric referral understand applicant tell charged offence past learnt significantly mistake 4 letter general practitioner quite inadequate persuade court concern applicant mental functioning personality suitability admission legal profession equivalent type report board asked 5 application admission come court 7 june 2022 week prior letter dated 1 june 2022 board advised court meeting 31 may 2022 board resolved currently satisfied applicant suitable admission legal profession noted information notice unders 87had issued applicant 6 section 87provides follows 87 health assessment 1 section applies relevant authority belief subject person currently unable satisfactorily carry inherent requirement practice australian legal practitioner 2 relevant authority may require subject person undergo health assessment person appointed relevant authority 3 relevant authority decides require health assessment authority must give subject person information notice decision require assessment includes name qualification person appointed authority conduct assessment b stated date stated time place assessment must reasonable regard circumstance subject person known relevant authority 4 stated date must sooner 28 day information notice given subject person unless person relevant authority agree writing earlier date 5 subject person may apply provided qcat act tribunal review decision 7 information notice issued applicant 1 june 2022 section stated board concern whether currently able satisfactorily carry inherent requirement practice accordance chapter 2 part 2 5 act requires undergo health assessment psychiatrist board expense board requires choose following panel psychiatrist conduct assessment dr jill reddan dr martin nothling dr tod wakefield dr david alcorn could please choose psychiatrist panel indicate may available assessment completed liaise psychiatrist room arrange suitable appointment date order assessment take place 8 consequence letter board applicant agreed adjourn hearing application 7 june 2022 date fixed 9 email exchanged m timmins solicitor secretary board applicant 1 3 june 2022 show applicant initially co operative arrangement made appointment made 1 november 2022 one nominated psychiatrist dr nothling appears earliest available appointment applicant also placed cancellation list psychiatrist case earlier appointment became available 10 13 june 2022 applicant sent email board generic email address attaching form 9 notice intention apply admission nominating 11 july 2022 hearing date 11 m timmins replied email 14 june 2022 saying unfortunately little confused 6 april 2022 board asked provide report psychiatrist section 40 notice detailed information matter board requires addressed response letter provided letter gp failure comply board section 40 notice ground board recommend admitted board subsequently required undergo health assessment section 87 board expense understand consider unreasonable however board statutory obligation ensure person admitted fit proper able carry inherent requirement practice wish challenge board requirement however would need seek review decision qcat made appointment dr nothling 1 november 2022 9 note email 4 june 2022 stated refuse undergo therapy take drug board made inference suggest would required attend therapy take medication stage process trying make arrangement assessed psychiatrist earlier time yesterday afternoon managed book appointment dr frank varghese 16 august 2022 1pm would also point currently domestic violence order effect 30 june 2025 never seen board admit person dvo anticipate board minded recommend admission stage basis alone meantime please let know intention respect application course proceed wish however stage based actually think much point 12 applicant responded email saying would proceed application admission complied 40 request best capability request stipulated psychologist psychiatrist report could decide either considered letter gp suggests need either compliance believe unreasonable make appointment psychiatrist interfere admission timeline could admitted condition assessment see psychologist health assessor available today tomorrow would prefer seek review qcat also believe required admission applicant 13 m timmins responded say board would accept report psychologist earliest appointment available psychiatrist acceptable board 16 august 2022 asked applicant confirm would like keep appointment applicant responded say could stage confirm whether 16 august suitable said reason confusion belief given information notice stated date must reasonable consider information notice complied legislation unfair 14 27 june 2022 applicant filed affidavit affidavit refers mark achieved graduate diploma legal practice say good mental health clearly apparent also say 6 never suffered significant disturbance thought mood perception memory including alcoholism drug dependence plt practical legal training particular firm appeared numerous time magistrate court clerk drafted high quality submission speak psychiatrist spoken general practitioner suitability issue numerous people supported recovered whatever problem 1 june 2022 information notice compliant section 87 3 b act without reasonable date impossibility choosing psychiatrist panel unprofessional ground belief inability must stated must clear understand dissatisfied lack sensitivity communication unfair 15 email exchange applicant m timmins 7 8 july ahead scheduled hearing date 11 july 2022 applicant appear replied m timmins request indicate intended 11 july 2022 adjourn hearing application proceed 16 ultimately mr strachan appeared applicant court 11 july 2022 bowskill cj boddice kelly jj sought order adjourning application 15 august 2022 opposed board order made 17 15 july 2022 m timmins exchanged email mr strachan solicitor brisbane criminal lawyer m timmins referred appointment made dr varghese 16 august 2022 also referred applicant statement affidavit would speak psychiatrist asked mr strachan please confirm whether applicant would attending appointment explaining applicant attend board would incur substantial non attendance fee 18 18 july 2022 applicant sent email admission email address simply saying intend proceed admission 15 august 2022 asking name added list applicant 19 9 august 2022 dr varghese room emailed board enquiring whether appointment 16 august still required m timmins forwarded mr strachan asking could confirm mr strachan responded later day say tried convince applicant take appointment adamant wish dig past m timmins responded say basis would cancel appointment arranged dr varghese 16 august 2022 dr nothling 1 november 2022 20 9 august 2022 board wrote registrar court making recommendation 39 act letter informed court board resolved meeting 9 august 2022 currently satisfied applicant suitable admission legal profession material provided application raise matter consideration court applicant failure comply 40 notice requiring provide additional information material including current report psychiatrist psychologist relation personality problem disclosed affidavit affirmed 24 march 2022 b applicant failure comply 87 notice requiring undergo health assessment psychiatrist c applicant applied qcat review board decision require undergo health assessment circumstance applicant provided report either psychiatrist psychologist addressing personality problem described board continues concern whether currently able satisfactorily carry inherent requirement practice 21 12 august 2022 applicant filed two affidavit first affirmed 7 may 2022 appears response board notice 40 act said attended pa hospital 20 january 2020 drug assessment education session ordered condition recognisance order magistrate court drug conviction december 2019 b thing protection order made 2019 explained varied lifted c heading recovering personality problem 9 never received psychological psychiatric treatment personality problem recovered personality problem personality disorder never suffered diagnosed mental health disorder good mental health personality problem younger year sufficient experience living peace thought physically attacking boyfriend justified emotional reason know physical assault especially household justified matter difficult thing become discussed suitability issue general practitioner provides letter support application admission exhibit 22 second affidavit affirmed applicant 12 august 2022 state 1 complied board notice section 40 1 act discussed entirety issue appropriately qualified health assessor named general practitioner wish board accept evidence psychology psychiatrist referred therefore either suitable understand attend psychiatrist psychologist without referral however believe inappropriate pay report needed team brisbane criminal lawyer knowledge suitability issue support admission 23 relation affidavit noted paragraph 1 incorrect applicant complied 40 notice 87 notice matter b paragraph 6 inadmissible evidence brisbane criminal lawyer 24 written submission filed mr strachan behalf applicant submission record applicant belief board request original request obtain psychiatric psychological report unreasonable based throw away remark march 2022 affidavit personality problem past submits board mistaken interpretation remark applicant affidavit letter general practitioner enough show applicant able satisfactorily carry inherent requirement practice board raised anything else suitability matter disclosed therefore applicant admitted 25 matter came hearing 15 august 2022 court gave mr strachan appeared behalf applicant opportunity seek instruction adjourn application indicating likely refused current state material mr strachan indicated client adamant application go ahead made brief submission 26 board opposed admission filed comprehensive helpful submission rather lengthy history set 27 applicant application admission lawyer must dismissed court cannot feel confident present fit proper person admitted 3 offence violence another state somewhat dated worrying similarity behaviour took place boyfriend ex boyfriend brisbane 2019 although criminal charge laid result applicant behaviour 2019 acknowledges behaviour involved physical violence appears one perhaps two protection order made queensland 2019 2020 protection order still current despite attempt applicant able lifted drug offending december 2019 might trouble court disclosure applicant admission might said applicant summary offence occurred 2017 traffic history occurred 2016 however court view cumulative effect matter one concern 28 applicant attempt explain past behaviour give reason think suitable candidate admission even accepting mean say personality disorder using term personality problem affidavit sworn application correspondence board reveal prejudicial event vulnerability past including childhood difficulty coping thing psychological sequela blame violent behaviour fact comply either 40 notice 87 notice issued board give cause concern affidavit correspondence board show inaccuracy inconsistency approach inability deal mature insightful rational way issue behaviour raise 29 applicant say wish dig past however real sense behaviour court concerned past offending 2019 recent history protection order granted 2019 2020 extends present pointed course judgment court cannot feel satisfied even history applicant offending history domestic violence order made complete material court 30 reason anonymised regard tos 159 2 thedomestic family violence protection act 2012 qld 1 see 31of act 2 see 9 e act 3 31of act |
Sun Smile Pty Ltd T_A Zarraffa's Coffee Toowong [2018] FWCA 7837 (21 December 2018).txt | sun smile pty ltd zarraffa coffee toowong 2018 fwca 7837 21 december 2018 last updated 31 december 2018 2018 fwca 7837fair work commissiondecisionfair work transitional provision consequential amendment act 2009sch 3 item 16 application terminate collective agreement based transitional instrumentsun smile pty ltd zarraffa coffee toowong ag2018 6199 sun smile pty ltd collective agreement 2009restaurantsdeputy president asburybrisbane 21 december 2018application termination sun smile pty ltd collective agreement 2009 1 7 november 2018 sun smile pty ltd zarraffa coffee toowong applicant made application terminate thesun smile pty ltd collective agreement 2009 agreement item 16 schedule 3 thefair work transitional provision consequential amendment act 2009 cth tpca act applicant seek terminate agreement revert therestaurant industry award 2010 2 item 16 schedule 3 tpca act provides subdivision division 7 ofpart 2 4of thefair work act 2009 cth act applies relation collective agreement based transitional instrument reference enterprise agreement included reference collective agreement based transitional instrument accordingly must terminate agreement satisfied matter contained in 226of act 3 considered matter contained in 226of act satisfied agreement terminated particular regard fact agreement made 2009 prior operation therestaurant industry award 2010 also regard fact agreement term le favourable award agreement terminated award apply benefit employee 4 termination come effect date decision deputy presidentprinted authority commonwealth government printer ac324390 pr703482 |
Twin Waters Garden Villas [2018] QBCCMCmr 327 (28 June 2018).txt | twin water garden villa 2018 qbccmcmr 327 28 june 2018 last updated 6 july 2018adjudicator orderoffice commissionerfor body corporate community managementcitation twin water garden villa 2018 qbccmcmr 327parties oliver vicki dede applicant body corporate twin water garden villa respondent scheme twin water garden villa ct 26129jurisdiction section 227 1 b 229 3 thebody corporate community management act 1997 qld act applying act thebody corporate community management accommodation module regulation 2008 accommodation module application 0197 2018decision date 28 june 2018decision stone adjudicatorcatchwords agm resolution whether body corporate acted unreasonably voting motion vary standard condition pet approval allow dog cross common property leash rather carried enclosed container car act 94 2 ordersmade hereby orderthat application dismissed reason decisionintroduction 1 applicant received body corporate approval keep dog scheme july 2017 committee resolution stated approval subject standard condition keeping pet already force applicant state familiar condition search old committee meeting minute effort locate search ultimately concluded realisation standard condition include requirement dog must carried put container crossing common property believe condition unreasonable dog heavy carry container would abandoned street dog could walked unfair oppressive unreasonable expect drive dog 60 metre lot street 2 applicant submitted motion general meeting 27 november 2017 motion 10 follows standard condition number ii owner animal wish take animal complex must carry animal enclosed suitable container replaced owner lot may take animal across common property purpose taken directly property animal must leash time entering exiting property 3 motion 10 lost 6 vote favour 45 4 applicant seek order describe following term allow dog walked lead owner property directly street purpose walking daily exercise requirement put animal appropriate container fair reasonable oppressive animal owner animal seek permission allow dog onto common property time seek approval dog lead walk directly property street directly back property 5 general language indicates applicant seeking change standard condition approval applies dog owner scheme e allowa dog froman owner property seeking order relates solely body corporate condition approval dog also evident section 6 application identify motion 10 attempt resolve dispute motion 10 also written language general application seek amend standard condition thought apply dog scheme interpret application order motion 10 deemed passed basis body corporate acted unreasonably contrary section 94 2 act voting 6 six submission received owner support application felt unreasonable expect owner carry dog considered leash would provide adequate restraint two owner stated dog unable carry 7 one owner made submission opposition application said voted motion 10 following reason existing condition approval dog ensure resident confident confronted dog scheme 34 pet living scheme applicant want change rule suit number animal scheme increasing cause animal problem problem scheme dog barking cat roaming night andlarge dog small unit without yard dangerous dog resident 8 committee made submission simply pointed owner voted motion 10 opted retain standard condition dog must carried enclosed container crossing common property enter exit scheme procedure jurisdiction 9 commissioner invited owner committee make submission matter raised application 1 applicant replied submission 2 commissioner referred application departmental adjudication 3 10 satisfied dispute fall within dispute resolution provision legislation 4 may make order equitable circumstance resolve dispute 5 including ancillary consequential provision appropriate 6 satisfied decision pas motion general meeting unreasonable may make order give effect motion variation 7 analysis 11 law 11 scheme standard pet law prohibits keeping pet scheme without written approval body corporate 12 notion scheme set standard condition approving pet law appears genesis committee meeting held 12 november 2014 committee approved dog item 2 12 subject seven condition going note condition approval varied recent year resolved building manager draft 1 page approval condition owner given approval pet sign resulted letter 18 december 2014 committee occupier set seven condition pet ownership scheme condition similar identical condition set committee resolution 12 november 2014 however set condition shared requirement pet carried across common property entering exiting scheme 13 applicant submitted minute committee meeting held 4 july 2016 included three resolution approving pet scheme first item 3 1 minute included seven called standard condition subsequent approval also incorporated reference condition similar condition set committee november 2014 similar condition letter december 2014 identical either however condition include requirement pet carried enclosed container crossing common property 14 clearly intention part committee successive committee standardise approach approving pet scheme time evidence indicates called standard condition entirely standard consequently may scope misunderstanding dispute committee decides approve pet resolution state approval subject standard condition 15 however appear much room confusion condition concern applicant version standard condition seen include requirement pet must carried enclosed container crossing common property 8 applicant clearly believe bound condition pet owner made submission given reason believe owner understand motion 10 sought achieve proposed relaxing condition permit animal taken across common property leash seems reasonably clear passed motion would meant pet approval referred standard condition would amended proposed applicant 16 section 94 2 act requires body corporate act reasonably making making decision application succeed applicant must demonstrate body corporate failed meet obligation term reasonably act reasonably ordinary meaning reasonable action ought evidence based rational 9 question reasonableness whether decision correct whether objectively reasonable 10 reasonable question fact determined objectively considering relevant circumstance 11 17 difficulty applicant little information body corporate acted deciding motion 10 motion placed agenda required pursuant section 67 2 accommodation module vote cast motion resoundingly defeated reasoning process individual owner cast vote largely unknown one submission appears made amongst 45 lot owner voted motion 10 waste time analysing stated reason opposing motion given motion would still overwhelmingly defeated unknown reason even vote discarded 18 factor applicant argue demonstrate body corporate acted unreasonably dog heavy carry dog container would abandoned street believe ought expected drive short distance order walk dog however reason conclude owner voted motion failed due regard consideration might said acted unreasonably failing consider relevant matter making decision 12 reasonably foreseeable dog affected standard condition large difficult impossible carry owner may well felt owner lot 44 indicated submission reasonable owner pet drive scheme ensure owner come contact may view applicant share obviously irrational view fact owner may given greater weight preventing casual contact owner dog convenience pet owner bringing animal onto scheme mean acted unreasonably carmody j queensland civil administrative tribunal held body corporate external reviewer decide weight give relevant factor inform decision making 13 19 applicant discharged onus demonstrating balance probability body corporate acted unreasonably refusing vary standard condition pet approval proposed motion 10 say body corporate fact act reasonably cannot sure circumstance option reasonably open body corporate pas motion 10 absence information establish precisely owner made decision unreasonable approach application must fail conclusion 20 reason given application dismissed 1 section 243 act 2 section 244 act 3 section 248 act 4 section 227 229 276 act 5 section 276 1 act 6 section 284 act 7 item 24 schedule 5 act 8 applicant referred two pet approval include requirement resolution item 2 11 minute committee meeting held 4 july 2014 approved dog subject condition kept lead crossing common property resolution item 4 7 minute committee meeting held 11 april 2018 also provided care dog restrained leash outside lot however neither resolution made reference standard condition approval former predated committee purported decision introduce standard condition see either offer guidance purported content standard condition given evidence suggest pet approval subject standard condition appears two approval simply made basis act reasonably committee must make decision individual merit may committee considered standard condition inappropriate case care dog considered april 2018 9 body corporate beach surfer paradise v backshall 2016 qcata 177at 23 10 cwealth bank australia v human right equal opportunity commission 1997 fca 1311 11 albrecht v ainsworth or 2015 qca 220at 82 12 body corporate beach surfer paradise v backshall 2016 qcata 177at 42 13 ibidat 44 |
Donis & Ors v Donis [2007] VSCA 89 (11 May 2007).txt | donis or v donis 2007 vsca 89 11 may 2007 last updated 11 may 2007supreme court victoriacourt appealno 7524of 2001victor donis rosa donis andsteven donisappellantsvsusie donisrespondent judge maxwell acj nettle ashley jjawhere held melbournedate hearing 26 april 2007date judgment 11 may 2007medium neutral citation 2007 vsca 89 equity estoppel proprietary estoppel promise transfer interest real property promisee following marriage promisee promisor son promise made basis assumption marriage would endure promisee entering marriage giving work child reliance promise marriage ending divorce minimum equity whether promisor bound give effect promise property sold whether promisor bound pay commensurate proportion sale price promisee whether payment commensurate proportion sale price grossly excess amount required satisfy equity detriment whether payment commensurate proportion sale price disproportionate detriment suffered whether payment commensurate proportion sale price went beyond requirement conscientious conduct would injustice others giumelli v giumelli 1999 hca 10 1999 196 clr 101 applied sullivan v sullivan 2006 nswca 312 considered procedure pleading trial issue apparent pleading allowed litigated trial failure amend precluding judgment fact emerged term issue allowed litigated include order pleading amended water board v moustakas 1988 hca 12 1988 180 clr 491 applied wong v mura 2001 nswca 366 referred appearance counselsolicitorsfor appellantsmr p j riordan sc withmr p trichardtmichael fleming assocfor respondentmr n j bryan sc withmr r j spicerpearce webster dugdalesmaxwell acj 1 considerable advantage reading draft reason nettle ja reason honour give would dismiss appeal nettle ja 2 appeal judgment given commercial equity division favour respondent claim based proprietary estoppel thedillwyn v llewellynkind 1 alleged first second appellant guilty unconscientious conduct failing honour promise basis acted detriment would registered title proprietor one quarter share semi rural property later sold property considerable profit facts3 third appellant steven donis elder son first second appellant victor rosa donis steven donis brother michael donis four year younger may 1995 steven donis met respondent susie donis visited mushroom farm bundoora working casual basis newly qualified police constable recently qualified school teacher thereafter met coffee saw briefly susie donis left australia july 1995 holiday europe even time however committed talk marriage susie donis europe steven donis also holidayed europe without contact susie donis returned europe 13 october 1995 sometime steven donis 4 number year victor rosa donis lived mill park ran fish chip shop melbourne looking change life style 11 july 1995 entered contract purchase property plenty road mernda described prime northern edge melbourne investment consisted 40 acre land two brick veneer house farm shedding cattle yard pasture 5 one house approximately 18 square eight year old comprised lounge room dining room three bedroom master bedroom en suite bathroom second bathroom spa bath house located two acre fenced section property described 1575 plenty road house older smaller three bedroom brick veneer home located another adjacent fenced section property called 1565 plenty road 6 purchase price property 350 000 victor rosa donis paid deposit 38 500 resource borrowed remainder first mortgage national australia bank ltd sale completed 18 november 1995 27 november 1995 registered title joint proprietor subject mortgage paid 1999 7 soon settlement moved son house 1575 plenty road time shifted house closer shed farm facility time steven donis moved house 1575 plenty road began make mortgage payment 8 steven susie donis formally engaged married 28 april 1996 married 16 february 1997 married steven donis talked susie future property told 20 acre property belonged put saving towards purchase 20 acre told want live farm isolated parent sister said however best investment could make much land house may old 20 acre land 9 victor rosa donis also told susie donis house 1575 plenty road half 40 acre susie steven steven could renovate house would like new house said need new house renovate one buy new house anywhere near 20 acre victor rosa also said stay together family house close susie worry starting family giving grandchild 10 thus encouraged susie donis fell pregnant honeymoon march 1997 returning 1575 plenty road continued work school teacher another six month stopping child time steven donis spent considerable amount money making improvement member family put large amount work cleaning property improving child born 19 november 1997 thereafter respondent remained home care 11 following birth child marriage became strained respondent steven donis began argue led two week separation august 1999 ultimately 18 january 2000 left house left child 12 1 february 2000 received letter victor rosa donis requiring vacate property 31 february 2000 sic 5 february 2000 came home find house stripped bare left choice return child parent home 13 10 october 2002 victor rosa donis sold property developer 3 97 million led eventually proceeding susie donis alleged victor rosa donis bound equity make good promise would one quarter share property thus entitled one quarter sale proceeds judge decision14 judge found susie donis married steven donis time thereafter victor rosa donis made statement effect steven would registered title owner house 1575 plenty road half land honour also found susie donis acted reliance statement detriment agreeing marry allowing become pregnant sooner would otherwise case moving 1575 plenty road spending money effort improving rather holding purchase new house closer melbourne would otherwise done judge expressed reason led promise reasonably believed true would acted upon marry earlier would accept living mernda property rather purchase home closer suburb preference spend money mernda house child stay home rather pursue career collapse marriage separation party could seen decision disadvantaged plaintiff steven taken course buying home applied money home even saved would asset delayed child pursued career would much better position financially generally opportunity lost induced thereby acted faith defendant statement promise overlook statement claim detriment pleaded making contribution factor referred raised evidence readily apparent clear fact circumstance regarded overall plaintiff detriment confined contribution matter detriment added factor shortly separation new house stripped use plaintiff description evidence little left said earlier plaintiff received recompense improvement effected house including fixed item left told view plaintiff suffered substantial detriment result relying defendant statement promise 2 15 later separate judgment 3 honour determined susie donis entitled 600 000 proceeds sale property minimum equity justice effect sum 600 000 mid point one quarter value property date separation 1 february 2000 interest 7 since date one quarter value property date sale 2002 reason judgment judge explained adopted approach view present problem satisfactorily resolved attempted simple arithmetical basis reason mentioned could reason nature detriment one hand specific promise value land various attendant circumstance hand taking relevant matter account consider amount required satisfy plaintiff equity appropriately assessed channel value separation sale 2002 discussed word one whereas assessment former carry injustice plaintiff latter carry injustice first second defendant degree case disproportionate unjust true position position point cannot calculated precision amount reason discussed regarding relevant circumstance view plaintiff equity appropriately justly considering prejudice side assessed 600 000 4 ground appeal16 despite large number ground appeal ground pressed argument sum 600 000 bore apparent relationship detriment suffered respondent b sum 600 000 grossly excess amount required satisfy equity first second appellant made promise basis assumption fulfilled ii promise gratuitous iii obligation pay sum 600 000 would significant effect appellant iv sum 600 000 disproportionate detriment suffered andc judge erred taking account element detriment pleaded nature appeal17 counsel appellant conceded judge decision discretionary accordingly appeal governed principle inhouse v king 5 assuming without deciding 6 appeal conducted basis reason appear consider make difference case minimum equity18 appellant argument extent premised idea equitable estoppel permit court required order avoid detriment party relied assumption induced party estopped idea find support judgment inwaltons store interstate ltd v maher 7 andverwayen v commonwealth 8 particular observation mason cj inverwayenthat equitable estoppel permit court required order avoid detriment party relied assumption induced party estopped 9 19 recent decision ingiumelli v giumelli 10 show however restriction case expectation encouraged acquisition interest property case remedy relates understanding party expectation encouraged prima faciethe estopped party fulfil equitable obligation making good expectation encouraged estopped party promised confer proprietary interest party entitled benefit estoppel latter acted upon promise detriment bound conscience make good expectation 11 follows detrimental reliance support estoppel need constitute sense consideration moving party bound unilateral element estoppel price paid 12 20 theprima facieposition yield individual circumstance principle authority compel view plaintiff expectation assumption uncertain extravagant proportion detriment plaintiff suffered court recognise claimant equity may better satisfied another possibly limited way 13 thus also said ingiumelli 14 granting relief court required consider circumstance case including possible effect third party avoid going beyond required conscientious conduct would injustice others mean court required constitutionally parsimonious 15 necessary substantial correspondence expectation monetary value detriment suffered relief accorded would suffered 16 object exercise equity purpose detriment narrow technical concept need consist expenditure money quantifiable financial disadvantage long something substantial requirement must approached part broad inquiry whether departure promise would unconscionable circumstance 17 relief referenced detriment21 appellant complain judge case failed provide reasoning came figure 600 000 alternatively submit even allowing degree flexibility honour permitted exercise order equity adoption mid point value property date separation date sale neither logic common sense commend thus indicative error 22 reject submission view apparent way judge approached matter consistently withgiumelli began theprima facieentitlement respondent promise made good followed honour reasoned respondent wasprima facieentitled receive one quarter share proceeds sale property looking circumstance case honour came conclusion full quarter share needed reduced cater range consideration outlined follows remains however determine amount sufficient satisfy plaintiff equity said immediately 1995 purchase price value date marriage appropriate reason significant preponderance injustice plaintiff determining relevant amount basis reference either base instructive consider parameter base valuation taking first value date separation 1 february 2000 secondly sale price 10 october 2002 gross term date one quarter interest 275 000 949 277 50 respectively taking first figure 275 000 first question arises whether reduced one quarter amount cost sale borne first second defendant namely 17 022 view effect adopting value land date separation purpose assessing amount satisfy equity take plaintiff back time prior sale question sale word first second defendant could way value determined 2002 sale price adopted purpose would proper plaintiff allow one quarter share cost sale would quite unfair situation presently considering 2002 sale irrelevant value separation add however whether matter considered point view value separation 2002 sale price would proper allow amount representing share burden mortgage following marriage would allow modest amount 2 000 account would allow amount respect mortgage view specific term promise part situation defendant steven contributing mortgage next question allowance interest point considering would appropriate value separation taken approach clear interest must allowed plaintiff compensated amount assessed reference value land 1 february 2000 yet receive payment 2006 add defendant submission amount payable plaintiff held account earning interest paid indefinite time future rate interest allowed counsel defendant suggested 7 percent seems reasonable would allow interest rate note counsel plaintiff said nothing rate calculate interest 7 percent per annum 275 000 1 february 2000 7 april 2006 118 986 would increase total amount 393 986 however interest calculated compound basis total amount produced 417 758 account taken allowance mortgage amount reduce 391 158 414 719 respectively course plaintiff would principle entitled interest judgment counsel defendant conceded would rate prescribed thepenalty interest rate act1983 |
Wei & Wei [2017] FamCA 584 (30 June 2017).txt | wei wei 2017 famca 584 30 june 2017 last updated 17 august 2017family court australiawei wei 2017 famca 584family law property interim order wife seek partial property settlement order made husband pay wife 50 000family law spousal maintenance interim order wife seek interim spousal maintenance insufficient evidence husband capacity pay spousal maintenancefamily law injunction wife seek order freezing asset husband bank account order made monies husband bank account held trust wife solicitorsevidence act 1995 cth family law act 1975 cth s 74 72 1 79 80 1 h family law rule 2004 cth bevan bevan 1995 flc 92 600mitchell mitchell 1995 flc 92 601mullen de bry 2006 famca 1380 2006 flc 93 293strahan strahan interim property order 2009 famcafc 166 2011 flc 93 446waugh waugh 2000 famca 1183 2000 flc 93 052applicant m weirespondent mr weifile number mlc530of2017date delivered 30 june 2017place delivered melbourneplace heard melbournejudgment john jhearing date 7 june 2017representationcounsel applicant mr kuansolicitor applicant hutchinson legalcounsel respondent dr inglebysolicitor respondent oakfair lawyersorders 1 4 00pm 8 june 2017 husband act thing may required pay wife lawyer sum 250 000 sum held upon trust husband wife interest bearing account released without prior written consent party order court b pay wife sum 50 000 sum characterised partial property settlement 2 extant interim application otherwise dismissed 3 matter listed conciliation conference 9 15am 11 september 2017 4 question party cost day reserved note form order subject entry order court record notedthat publication judgment court pseudonymwei weihas approved chief justice pursuant tos 121 9 g thefamily law act 1975 cth note copy court reason judgment may subject review remedy minor typographical grammatical error r 17 02a b thefamily law rule 2004 cth record variation order pursuant r 17 02family law rule 2004 cth family court australia melbournefile number mlc 530 2017ms weiapplicantandmr weirespondentreasons judgmentintroductionthis matter came judicial duty list upon application wife seeking order interim spousal maintenance sum 500 per week partial property settlement one half monies husband nab account andan injunction restraining husband disposing remaining one half monies held nab account commencement hearing husband sought order wife application dismissed german motor vehicle registered wife name transferred course submission husband position altered amended proposal seek order wife retain german motor vehicle another vehicle registered name sport car husband proposed wife sell vehicle valued 182 860 financial statement filed 19 january 2017 purchase new motor vehicle lesser value otherwise retain balance sale proceeds way partial property settlement conclusion hearing made order requiring husband pay wife lawyer sum 250 000 sum held trust party order payment 50 000 wife way partial property settlement otherwise dismissed extant interim application reason judgment respect decision material relied upon partiesin support application wife relied upon following document amended initiating application filed 17 may 2017 affidavit wife filed 17 may 2017 andfinancial statement filed 19 january 2017 husband relied upon following document amended response initiating application filed 2 june 2017 affidavit husband filed 2 june 2017 affidavit husband filed 1 may 2017 andfinancial statement filed 1 may 2017 backgroundthe party married 2007 separated december 2016 party moved australia china 2012 one child relationship aged 7 year wife aged 41 resides former matrimonial home suburb b party child life wife primary carer child course relationship continues role common ground wife unable work australia due visa status accordingly income disclosed financial statement filed 19 january 2017 nil wife deposes weekly expense 2 209 husband aged 55 resides rental accommodation suburb c pursuant order made 4 may 2017 child spends time husband 5 30pm friday 6 30pm sunday husband two adult child previous relationship reside china aged 34 30 husband sole director shareholder company manufacture noodle husband deposes company presently make marginal profit financial statement filed 1 may 2017 asserts weekly income nil husband deposes weekly expense approximately 2 850 2015 party sold property suburb balance sale proceeds approximately 900 000 deposited jointly held bank account husband deposed party utilised money fund living expense operate business september 2016 husband unilaterally transferred remaining monies held joint account approximately 600 000 bank account sole name husband deposed transferred monies sole name afraid wife may withdraw monies without sic consent husband apparently recognise irony situation done wife exactly feared would husband deposed affidavit filed 2 june 2017 date 388 000 600 000 remaining account september 2016 date swearing affidavit 1 june 2017 period approximately 8 month spent approximately 222 000 affidavit husband explaining expenditure provided list expense alleges paid 222 000 expenditure includes sum 44 917 20 towards mortgage secured title former matrimonial home wife currently occupies rental accommodation expense 11 296 health insurance 5 584 30 legal cost 14 000 flight ticket 2 554 61 household rate utility expense totalling 7 695 87 motor vehicle repair city link expense totalling 2 934 94 unspecified daily living expense school fee addition expense husband alleged paid wife cash totalling 18 000 receipt denied wife husband identified expenditure totalled 107 229 05 husband unable provide explanation expenditure remaining 114 770 95 submission counsel husband submitted amount husband account 370 000 date hearing part 18 000 spent 6 day since husband affidavit sworn applied fund cost interim hearing husband deposed affidavit filed 2 june 2017 owes two adult child another relative total approximately 1 2million husband provided evidence loan agreement detail term loan repayment schedule wife affidavit denied existence liability deposed husband always child source income supported financially conceded submission counsel husband previously purchased adult son apartment china confirmed husband affidavit filed 1 may 2017 value party interest australia china disputed party husband transfer joint monies sole name expenditure substantial amount money prompted wife seek interim order spousal maintenance partial property settlement order preventing husband dissipating matrimonial asset pool relation husband proposal wife sell sport car conceded wife privately sold german motor vehicle day hearing sum 30 000 yet receive proceeds sale wife opposed husband proposal sport car sold basis motor vehicle used one party child familiar submitted behalf want cause much disruption child life changing motor vehicle consider submission relevant helpful context wife application maintenance partial property settlement injunctive relief proceedingsthe matter conducted paper party relied upon material referred counsel oral submission given nature hearing contentious fact cannot determined without evidence properly tested accordingly determining matter relied upon fact agreed issue relevant legal principle partial property settlementpursuant tos 80 1 h thefamily law act1975 |
Industrial Relations Commission Decision 85_1991 [1991] AIRC 32;
(1 February 1991).txt | industrial relation commission decision 85 1991 1991 airc 32 1 february 1991 industrial relation commission decision 85 1991 m223 dec 085 91 print j6649 australian industrial relation commissionindustrial relation act 1988s 99notification industrial dispute australasian meat industry employee union angliss group c 20065 1991 meat processing angliss group award 1981 1 odn c 03004 1972 meat employee meat industry deputy president riordan sydney 1 february 1991 leave public holiday dispute regarding non payment three public holiday christmas new year period clear undisputed commitment pay public holiday noted commission recommended employee paid public holiday concerned decision following decision given transcript thursday 31 january 1991 australasian meat industry employee union shall refer amieu complained notification 18 january 1991 industrial registrar angliss group honoured commitment made pay member employed company lake creek abattoir rockhampton three public holiday occurred christmas new year period 1990 notification signed mr day federal president amieu contains following allegation 1 closure 1990 season lake creek employee advised restart date also informed upon commencement employee would paid three public holiday fell closure 2 due flood condition start date put back understand due water getting boiler plant 3 management advised honouring commitment pay employee public holiday evidence case indicates company lake creek abattoir ceased slaughtering operation 13 december 1990 boning operation 14 december 1990 activity concerned preparation hide working freezing cold store area ceased date shortly 1 print f2916 m223 thereafter evidence also clear restart date given 7 january 1991 recommencement slaughtering 8 january 1991 boning operation also clear evidence date given early october work manager confirmed two subsequent occasion new work manager later boning room supervisor queried respect whether public holiday paid clear enough evidence commitment made behalf company senior official 1990 91 close period three public holiday would paid employee resumed work required evidence case called amieu indicates following 1 past angliss group lake creek always paid three public holiday occurred close period close occurred 2 meatworks central district queensland concerned export meat trade least far paid three public holiday employee resumed work 3 shed export meat industry resumed work queensland following close period paid employee three public holiday occurred importantly 4 evidence firm commitment given behalf company employee would paid public holiday occurred period employee concerned engaged regular daily employee pursuant provision meat processing angliss group award 1981 subclause 7 provides follows regular daily employee shall employed day shift without prejudice provision award payment award holiday sick leave annual leave seasonal allowance employment shall terminate end day shift employed paragraph b clause provides notwithstanding termination employment end day shift engagement regular daily employee shall continue shall remain regular daily engagement terminated herein prescribed clause go specify engagement shall may terminated clause 18 c meat processing angliss group award 1981 provides follows refer paragraph regular daily employee shall except hereinafter provided entitled paid award holiday fall day monday friday ordinary rate per day classification normally employed one fifth ordinary earnings preceding five working day actually worked whichever greater proviso certain condition contained balance clause c paragraph f clause 18 c ii following provision applies case piece worker employed working day working day award holiday employment rendered impracticable failure suitable employee offer accept employment sufficient number constitute piece work team either day paragraph 18 f provides engagement regular daily employee terminated employer within 14 fourteen day award holiday employee engaged whether regular daily employee casual employee time expiration 14 fourteen day said holiday employee right payment holiday shall ascertained termination taken place provided employee received payment holiday employer issue proceeding whether engagement relevant employee terminated light decision intend make matter call determination time mr day put strong argument company action fair reasonable employee concerned also argued strongly company action legitimate accordance meat processing angliss group award 1981 mr scholes submission behalf angliss group claimed employment relevant employee terminated also engagement terminated claim employee whose engagement terminated process engaged accordance seniority clause provided award say skill level increased additional employee engaged already engaged others follow claim assurance given restart date could expectation plant would reopening certain date appear real issue although evidence indicates date given firm date conceded however officer official union gave evidence circumstance would prevent firm date reopening carried perhaps event occurred recent week central point evidence clear undisputed commitment made pay public holiday must observed passing award perhaps clear interest sound industrial relation whether award present form requires payment three public holiday open debate would depend upon construction several clause award open serious doubt say least engagement employee terminated accordance award regard circumstance case particularly evidence given central district secretary amieu work president lake creek abattoir regard circumstance evidence wish strongly recommend angliss group pay employee concerned three public holiday occurred christmas new year period present proceeding commission part heard relate certain incident occurred queensland christmas new year period close various meatworks occurred engagement procedure followed sufficient say proceeding matter close down right employee present close review event angliss group accept recommendation intention vary award clarify issue necessary make appropriate order matter however aspect could addressed proceeding matter c 27230 1989 c 40177 1990 angliss group wish address question award variation proceeding next listed hearing commission monday next brisbane 10 00 obviously right party reserved make submission form order award may necessary made event recommendation accepted end text end text end text |
R v H [2001] NSWCCA 117 (30 March 2001).txt | r v h 2001 nswcca 117 30 march 2001 last updated 23 april 2001new south wale criminal court appealcitation r v h 2001 nswcca 117file number 60284 2000hearing date 30 march 2001judgment date 30 03 2001parties reginamhjudgment wood cj cl greg james jlower court jurisdiction district courtlower court file number 00 31 0134lower court judicial officer job dcjcounsel mr marien c m burgess solicitor se connord j humphreyscatchwords criminal law appeal appeal sentence sexual assault indecent assault child applicant sentenced fact particularised uncharged offence inappropriately taken account failure give proper weight plea confession failure quantify discountlegislation cited crime act 1900s 61m 1 61 1 66 c 2 criminal procedure act 1986s 58 9 decision leave appeal granted apeal dismissed sentence confirmed judgment court ofcriminal appealno 60284 2000wood cj clgreg james j30 march 2001regina v mhjudgmentthe applicant pleaded guilty three count sexual intercourse child aged 10 16 circumstance aggravation namely victim authority pursuant tos 66c 2 crime act 1900 applicant also pleaded guilty commission act indecency victim six offence included form 1 none act disputed applicant gave evidence applicant sentenced effective head sentence seven half year imprisonmentthe applicant seek leave appeal sentence imposed ground 1 applicant sentenced factual basis particularised 2 uncharged offence inappropriately taken account trial judge circumstance aggravation 3 trial judge failed give proper weight plea confession held appeal dismissed ground 1 applicant sentenced factual basis particularisedthe indictment stated offence occurred victim 14 year age trial judge sentenced applicant reference complainant statement 13 year age case date particularised essence essential ingredient offence indictment defective offence applicant pleaded differ according whether victim 13 14 year old time commission olbrich 1999 hca 54 1999 199 clr 270 stringer 2000 nswcca 293distinguished ground 2 uncharged offence inappropriately taken accountthis submission relied assumption trial judge added increment sentence charged offence way punishment uncharged act victim statement however nothing reason sentence provided support assumption entirely appropriate prosecution place court wider sexual history explain relationship place offence context meet suggestion offence islolated incident h 1980 crim r 53 rn 1999 nswcca 122 gwenswcca 12 march 1997 h 1994 74 crim r 41 jcw 2000 nswcca 209applied ground 3 trial judge failed give proper weight plea confessionthe trial judge overlook significance plea fact applicant effectively gave police although extent discount extended indicated sentence pronounced guideline judgment ofthomson houltonin course encouraged failure expressly quantify discount given demonstrate appellable error end question depends upon consideration might appropriate sentence taking account objective subjective circumstance including early plea assistance provided voluntary disclosure offence elli 1986 6 nswlr 603applied order proposed 1 leave appeal granted appeal dismissed 2 sentence confirmed court ofcriminal appeal60284 00wood cj clgreg james jfriday 30 march 2001regina v hjudgment1 wood cj cl applicant seek leave appeal sentence imposed upon honour judge job district court gosford 5 may 2000 2 plea guilty entered relation three count sexual intercourse child age 10 16 year circumstance aggravation namely victim step daughter authority three count preferred 66 c 2 thecrimes actand maximum penalty available offence imprisonment 10 year 3 indictment charged commission act indecency victim age 16 year authority maximum penalty offence applicant pleaded guilty imprisonment five year 610 1 thecrimes act 4 short fact relation crime follows 5count 1 time fourteenth birthday circumstance return applicant instructed victim remove short underpants lie floor placed condom penis inserted small way vagina withdrawing complained hurt 6count 2 victim turned 14 applicant placed penis vagina occasion penetrating deeply occasioning pain 7count 3 one afternoon school victim 14 15 year age applicant instructed remove top bra suck penis 8count 4 8 january 1999 prisoner took victim bathroom shower together made masturbate 9 total period spanned count charged 15 september 1997 8 january 1999 10 six offence included form 1 spanning period two year 1 january 1997 31 december 1998 include three offence aggravated indecent assault contrary tos 61m 1 thecrimes act first involved applicant touching victim vagina touch penis second involved applicant victim masturbate third involved shaving pubic hair 11 remaining three matter comprised offence sexual intercourse child 10 16 year applicant authority contrary 66 c 2 thecrimes act first additional matter involved act applicant requiring victim suck penis bathroom together second third offence occurred date involved act applicant producing two vibrator one required victim insert vagina inserted anus masturbating pen requiring read forum column penthouse magazine 12 offence included indictment form 1 shown part wider history sexual interference victim born 15 september 1983 two statement provided tendered without objection described number act applicant commencing regular touching breast vagina age 11 year taking placing hand penis placing penis leg shower requiring dance underwear showing pornographic image internet woman engaged sexual activity animal showing photograph sex wife none act disputed applicant gave evidence 13 applicant sentenced count 1 3 indictment fixed term two half wear date 2 may 2000 relation count 4 fixed term 18 month served concurrently sentence relation count 2 3 relation first count taking consideration matter form 1 applicant sentenced imprisonment five year served cumulatively upon sentence count 2 3 effective head sentence accordingly one seven half year imprisonment non parole period set expire 1 may 2005 14 turning ground upon applicant relies convenient note offence came light prisoner disclosure wife commencing 15 february 1999 expression concern entertaining inappropriate feeling victim although without touched progressing disclosure following day sex various disclosure applicant displayed good deal distress second occasion police contacted wife fear might harm speaking police phone asked come arrest 15 formally interviewed police applicant admitted incompletely briefly penetrated vagina victim two occasion disclose wider sexual impropriety 16 applicant pleaded guilty offence outset sought counselling doctor darcy spark neither found sign mental illness apart depression reactive stress guilt unemployment isolation pending court proceeding applicant also saw counsellor mr bust psychiatric nurse referred possible pre trial diversion via cedar house programme however adjudged unsuitable programme also referred psychiatric assessment purpose determining suitability entry sex offender programme assessed posing moderate risk reoffending suitable educational programme precursor core programme low intensity programme designed help sex offender work changing thinking attitude feeling 17 applicant 41 year age appeared sentence prior record antiquity relevance present offence well history employment telecom 20 year taking redundancy honour assessed working record good expressly noted would take prior conviction account 18 1996 applicant involved motor vehicle accident course suffered back injury wife suffered serious leg injury left constant pain interfered sexual life 19 giving evidence applicant expressed shame done accepted effect victim insurmountable inexcusable evidence knew law thought wrong said searching reason seeking assistance done done 20 fact disclosure wife attributed accumulation guilt needed get chest realisation victim deprived opportunity forming relationship person age realisation want misconduct continue 21 asserted trying lay blame victim although impression author psychological report came view endeavouring pas responsibility 22 matter taken account honour comprehensive judgment sentence course noted applicant favour contacted police voluntarily complaint made victim plea guilty saved ordeal give evidence matter honour expressly said would take account special circumstance found regard assessment applicant would need assistance released upon parole 23 honour appropriately noted offence extremely serious young child virtually helpless sexual attack parent deterrence prime importance sentencing case 24 submitted honour fell error three respect applicant sentenced count 1 factual basis particularised 25 count charged offence victim aged 14 year occurring 15 september 1997 15 september 1998 yet honour sentenced reference fact contained paragraph 13 complainant first statement upon basis aged 13 year 26 true period charged would aged 14 year sentencing proceeding however conducted upon basis fact asserted paragraph 13 statement gave rise count victim fact aged 13 year leave given amend count 4 indictment appears need amend count 1 accord fact particularised overlooked 27 case date particularised essence essential ingredient offence seestringer 2000 nsw cca 293 indictment consequence defective 58 g thecriminal procedure act 1986 28 made clear morning applicant seek resile plea reliance however placed applicant upon circumstance erisp admitted two act penile vaginal intercourse occurring victim aged fourteen year also upon fact paragraph 15 victim statement two act described occurred 14th birthday 29 two problem submission observed raise matter going integrity plea rather directed proposition applicant sentenced upon serious version event fact case 30 first problem lie fact erisp involved partial admission applicant criminality plea request offence included form 1 taken account failure take issue matter raised victim statement applicant clearly accepted existence considerably wider history offending admitted erisp disingenuous circumstance submit applicant admission confined two act penile vaginal intercourse disclosed erisp 31 case genus kirby j spoke inolbrich 1999 hca 54 1999 199 clr 270at 291 offence applicant pleaded differ according whether victim 13 14 year old time commission event quite unable see le serious victim aged fourteen year rather thirteen year case involving gross abuse breach trust submission made good uncharged offence inappropriately taken account circumstance aggravation 32 submission depends assumption honour added increment sentence charged offence way punishment various uncharged act disclosed victim statement 33 case ground would made good reason discussed inde simoni 1981 hca 31 1981 147 clr 383andolbrich 1999 hca 54 1999 73 aljr 1550 however nothing reason sentence provides support assumption upon submission rest 34 entirely appropriate prosecution place honour wider sexual history order explain relationship place offence context meet suggestion count indictment form 1 isolated lapse applicant part event occurring course systemic course abuse extending number year established long line authority see exampleh 1980 3 crim r 53at 59 per street cj per moffit p 62 per begg j 74 r n 1999 nsw cca 122 g w ensw cca 12 march 1997 h 1994 74 crim r 41per gleeson cj 43 andj c w 2000 nsw cca 209 35 continuing validity distinction increasing sentence failing grant leniency account fact event charged isolated instance examined detail inj c win light different approach taken queensland decision ofd 1995 qca 329 1996 1 qdr 363 36 inj c w reviewing authority spigelman cj para 38 came conclusion warrant refusing follow consistent line authority state adopting reasoning ind honour also noted approach would accord adopted victoria b l 1998 vsca 144 1999 1 vr 706 observation high court insiganto 1998 hca 74 1998 194 clr 656 concerning validity distinction denying existence circumstance mitigation asserting existence circumstance aggravation 37 persuaded honour used wider sexual history purpose permitted line authority moreover proof wider history relevant assessing several matter arising consideration psychiatric psychological assessment concerning particular applicant appreciation wrongdoing prospect rehabilitation true extent remorse contrition 38 moreover case one issue occurrence uncharged event statement observed tendered without objection applicant accepted cross examination misconduct begun victim 11 year old continued time arrest also agreed accepted full responsibility action expressly acknowledged allowed victim see pornography internet photograph wife submission made good 39 supplementary submission additional argument advanced honour fell error far taken account fact applicant assessed unsuitable entry cedar house programme reliance placed regard upon decision court inp w hnsw cca 20 february 1992 andhardingnsw cca 16 december 1993 40 point considered case however different related relevance admissibility proof breach agreement entered offender admitted programme 41 present case attempted entry cedar house matter operating favour applicant far demonstrated remorse assessment unsuitability also relevant appreciation contrition understanding criminality suggestion whatsoever fact lack success gaining entry programme taken account circumstance aggravation additional ground also made good failure give proper weight plea confession 42 may accepted plea early plea applicant committed sentence 21 october 1999 way hand brief earlier offered admission cedar house diversionary programme precondition acceptance guilt plea considerable utilitarian value saving victim ordeal called give evidence also saving time expense trial 43 moreover case one fact plea evidence otherwise tendered convey considerable degree remorse upon part hand also disclosed lack appreciation nature extent criminality hence contrition need regarded somewhat qualified 44 may also accepted without applicant confession wife police offence would come light since despite suspicion entertained applicant wife relative complaint victim indeed one occasion pressed denied applicant touching 45 circumstance operate mitigation sentence reason discussed inellis 1986 6 nswlr 603at 604 46 however also ought overlooked time disclosure complainant still aged fifteen year light nature extent violation benefit experience similar victim coming forward year later realise enormity occurred could possibly said offence would never come light applicant disclosure 47 observed honour overlook significance plea fact applicant effectively gave police although indicate extent discount extended may observed sentence pronounced guideline decision court inthompson houlten 2000 49 nswlr 338in course particularly encouraged 48 case failure quantify expressly discount given demonstrates appellable error end question depends upon consideration might appropriate sentence taking account objective subjective circumstance including early plea assistance provided voluntary disclosure offence 49 offence charged number properly placed case upper range seriousness offence kind seeibbs 1987 hca 46 1987 163 clr 447 involved serious breach trust stepfather element general specific deterrence loomed large since kind violation child cannot tolerated civilised society 50 circumstance taken account principle totality applied view sentence well within legitimate range sentencing discretion effective sentencing order reflected appropriate reduction early plea applicant disclosure criminality sentencing statistic relied upon crown applicant different purpose provide little way assistance regard regard number offence involved wide range objective subjective circumstance encountered within individual case make statistic utility background information still need considered great deal caution since sentencing never reduced mathematical exercise dependent statistic 51 would grant leave appeal would dismiss appeal confirm sentence 52 greg james j agree 53 wood cj cl order court proposed 54 case reported initial otherwise name victim disclosed last updated 20 04 2001 |
Hirezi v Frankston CC [2004] VCAT 2498 (10 September 2004).txt | hirezi v frankston cc 2004 vcat 2498 10 september 2004 last updated 21 december 2004victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p1713 2004permit application 031100applicant j hireziresponsible authority frankston city councilother party lewis orssubject land 2 madden street seafordwhere held melbournebefore john quirk membertype hearing merit review refusaldate hearing 17 september 2004date order 10 december 2004citation 2004 vcat 2498orders1 decision responsible authority set aside 2 permit granted issue four 4 double storey dwelling 2 madden street seaford development accordance endorsed plan marked amend c dated 11 10 04 subject following condition 1 development start landscape plan prepared qualified landscape designer satisfaction responsible authority must submitted approved responsible authority approved plan endorsed form part permit plan must generally accordance plan submitted tribunal must show survey including botanical name existing vegetation retained removed b detail surface finish pathway driveway c planting schedule proposed tree shrub ground cover including botanical name common name pot size maturity quantity plant andd landscaping planting within open space site landscape plan must utilise low maintenance specie specie selected must satisfaction responsible authority 2 development shown endorsed plan must altered without written consent responsible authority 3 detailed design plan including drainage computation internal stormwater drainage system including method connection existing council stormwater infrastructure submitted approval satisfaction responsible authority infrastructure manager prior commencement development construction 4 provision stormwater detention system volume capable retarding 10 year ari flow developed site back 5 year ari pre development value infrastructure manager 5 vehicle crossing must constructed frankston city council standard specification satisfaction responsible authority infrastructure manager 6 use start area set aside parked vehicle access lane shown endorsed plan must constructed satisfaction responsible authority b properly formed level used accordance plan c surfaced weather seal coat including permeable paving satisfaction responsible authority drained maintained satisfaction responsible authority 7 plumbing work sewer pipe etc associated building shall concealed general view 8 power telephone line unit shall placed underground main point service outside boundary site 9 landscaping work shown endorsed plan must completed satisfaction responsible authority maintained satisfaction responsible authority 10 lighting shall provided near front entrance within development satisfaction responsible authority 11 mail box shall provided dwelling satisfaction responsible authority australia post 12 floor level shown endorsed plan must altered without approval responsible authority 13 development involves work access council controlled land including road reserve right way owner operator agent permit shall time take adequate precaution maintain work highest public safety standard precaution include appropriate signage 1743 road work signing code practice provision adequate barricading work including trench service authority road opening sufficient ensure public safety 14 brickwork constructed along facing property boundary must raked cleaned satisfaction responsible authority 15 holder permit responsible advise party person interest likely interest part property requirement provision permit 16 fence must sound condition satisfaction responsible authority prior completion development new timber paling fencing shall constructed along north east boundary land height 1800mm satisfaction responsible authority cost permit holder 17 street unit number shall displayed satisfaction responsible authority 18 development started must continued completed satisfaction responsible authority 19 permit expire one following circumstance applies development started within two 2 year date permit b development completed within two 2 year date permit responsible authority may extend period referred request made writing permit expires within three 3 month afterwards j quirkmemberappearances applicant mr john mcdill planning consultant responsible authority mr gbenga tokun senior statutory planner objector mr sheila lewis person reasons1 23 september 2004 tribunal issued following direction tribunal directs applicant shall within 21 day date direction provide registrar responsible authority four objector amended plan consideration party shall fourteen 14 day provide comment registrar end period decision made paper unless request party heard plan shall amended follows 1 upper floor dwelling 1 4 shall well articulated east west south upper floor redesigned necessary provide expansive dimension two remaining bedroom articulation shall achieved deletion part one bedroom stated body decision 2 garage unit 1 4 shall extended part one metre private open space dwelling storage shed shown plan deleted storage shed shall replaced partly private open space partly landscaping common area 3 access way driveway garage unit 2 3 shall widened opposite storage shed presently exist provide overall dimension 9 metre edge provided minimum 4 metre radius minimum dimension 2 6 metre width 4 paving driveway shall partly wholly permeable use pavers rather concrete asphalt however may partly concrete asphalt satisfaction responsible authority 5 lawn area abutting driveway unit 1 4 shall removed replaced garden area containing shrub ground cover etc 2 letter city consulting pty ltd including amended plan received registrar 14 october 2004 letter suggested new permit condition provision new fencing along north east boundary stated amendment made plan 3 18 october 2004 registrar received statement service document included list party amended plan sent 4 responsible authority forwarded response amended plan registrar fax 18 november 2004 stated council considers amended plan improvement initial one still concern respect following 1 lack solar access private open space dwelling 1 2 2 significant portion private open space dwelling 2 3 taken easement 3 minimal vehicle turning area garage dwelling 2 3 5 assessment amended plan lead conclude complied direction 6 intend deal submission except comment follows 1 private open space dwelling 1 2 ideal still receive solar access equinox matter previously agreed council hearing 2 unusual secluded private open space wholly partly occupy easement requirement otherwise also argued hearing 3 vehicle turning area sufficient purpose particularly person residing rear dwelling 7 permit issue subject condition 8 comment received party j quirkmember |
Stanley (a Pseudonym) v The Queen [2017] VSCA 54 (20 March 2017).txt | stanley pseudonym v queen 2017 vsca 54 20 march 2017 last updated 20 march 2017supreme court victoriacourt appeal apcr 2016 0011stanley pseudonym applicantvthe queenrespondent judge redlich ferguson jja beale ajawhere held melbournedate hearing 13 october 2016date judgment 20 march 2017medium neutral citation 2017 vsca 54 firstrevision 20 march 2017 judgment appealed dpp v stanley unreported county court victoria judge hannan 11 december 2015 criminal law application offender leave appeal sentence applicant received total effective sentence nine year six month imprisonment minimum term seven year whether total effective sentence individual sentence minimum term manifestly excessive total effective sentence included sentence eight year imprisonment trafficking large commercial quantity drug dependence current sentencing practice comparable case whether current sentencing practice trafficking large commercial quantity drug dependence inadequate appropriate circumstance decide issue application refused rv kilic 2016 hca 48 duncan v queen 2010 vsca 92 dagher v queen 2011 vsca 119 ibrahim v queen 2013 vsca 227 r v nguyen ngyuen pham 2007 vsca 165 r v nguyen 2008 vsca 141 r v nguyen dang ly nguyen 2008 vsca 235 kumar v queen 2013 vsca 191 appearance counselsolicitorsfor applicantmr j dickinson qc withmr r edneydoogue brien georgefor respondentms f dalzielmr john cain solicitor public prosecutionsredlich ja 1 benefit reading draft reason beale aja reason give would refuse leave appeal |
Roll Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd; re Hay [1999] NSWDDT 17; (1999) NSWCCR 389 (16 August 1999).txt | roll royce industrial power pacific ltd v james hardie co pty ltd hay 1999 nswddt 17 1999 nswccr 389 16 august 1999 last updated 25 april 2000 1999 18 nswccr 389rolls royce industrial power pacific ltdvjames hardie co pty ltd hay 2 1999 nswddt 17andjames hardie co pty ltdvrolls royce industrial power pacific ltd hay 2 andjames hardie co pty ltdvnew south wale hay 2 dust disease tribunal new south wale curtis j16 august 1999dust disease tribunal proceeding cross claim plaintiff suffers damage result one defendant tort defendant must liable respect damage ground cross claim another defendant contribution liability respect damage may based contract statutory cause action law reform miscellaneous provision act 1946 nsw 5 1 c word phrase respect damage law reform miscellaneous provision act 1946 nsw 5 1 c p hall qc g stewart r dalgleish roll royce industrial power pacific ltdj h l forrest qc g watson james hardie co pty ltdj ireland qc j f burn state new south walesex tempore1 curtis j notice motion filed 11 august 1999 james hardie co pty ltd james hardie seek leave file serve titled amended cross claim roll royce pacific ltd roll royce motion opposed roll royce argue cross claim untenable disclosing cause action background2 26 april 1994 plaintiff warren hay issued statement claim tribunal claiming damage elcom quality insulation roll royce quality insulation found worthless played part subsequent proceeding 3 mr hay alleged statement claim contracted mesothelioma employ roll royce 1953 1958 exposed asbestos working construction wallerawang power station elcom 4 3 june 1994 judge meally granted leave roll royce elcom file cross claim james hardie date roll royce filed cross claim seeking contribution elcom james hardie 5 11 june 1994 order made cross claim separately tried pt 6 r 4 thesupreme court rule 1970 rule 6 27 june 1994 elcom filed cross claim seeking contribution james hardie also 27 june 1994 elcom james hardie settled plaintiff consent judgment entered elcom roll royce favour plaintiff sum 185 000 term settlement provided cross claim issued roll royce elcom dismissed assume order made 7 following upon settlement presently relevant cross claim resolution independent cross claim elcom roll royce james hardie 8 20 february 1996 james hardie filed cross claim seeking contribution quality insulation bell asbestos ltd event found liable first elcom third roll royce defendant cross claim james hardie longer pressed document james hardie purport amend 9 31 july 1996 james hardie filed cross claim seeking contribution state new south wale cross defendant opposes present application 10 24 june 1999 cross claim elcom seeking contribution james hardie resolved settlement consent judgment entered favour elcom james hardie sum 129 500 70 per cent sum paid elcom plaintiff plus cost 11 james hardie wish bring money paid pursuant judgment account resolution issue relative culpability james hardie roll royce proposed amended cross claim recited settlement james hardie elcom par 3 read follows 4 purpose cross claim james hardie repeat allegation made statement claim plaintiff elcom cross claim allegation roll royce 5 james hardie say injury loss damage suffered plaintiff alleged statement claim plaintiff arose consequence negligence roll royce particular set statement claim plaintiff elcom cross claim 6 james hardie say roll royce liable pursuant provision thelaw reform miscellaneous provision act 1946 7 james hardie seek order roll royce contribute amount assessed tribunal towards sum including sum respect cost paid payable james hardie pacific power elcom pursuant term settlement referred par 3 preliminary observations12 application james hardie raise claim first made 5 august 1999 proposed cross claim filed court heard argument reserved ruling overnight 6 august voiced concern neither roll royce cross defendant state new south wale heard opposition judgment entered resolution cross claim elcom party may suffered irremediable prejudice seejames hardie co pty ltd v seltsam pty ltd 1998 73 aljr 238 asked submission 13 satisfied roll royce opportunity heard wished oppose entry judgment elcom cross claim remains fact state new south wale never consulted although aware pending settlement said may wish heard knew detail settlement event persuaded prejudice otherwise suffered roll royce new south wale entry judgment elcom cross claim may remedied application equitable consideration operation ofs 5 2 thelaw reform miscellaneous provision act 1946 14 rule envisaged situation present pt 6 r 4 rule following relevant term without limiting generality part 26 court may stage proceeding term determine extent cross claimant defendant cross claim shall bound judgment including judgment consent default decision including decision consent claim originating process cross claim proceeding 15 also observe james hardie contends proposed cross claim amendment cross claim filed james hardie 20 february 1996 opinion thing fresh claim james hardie seek bring roll royce order obtain contribution roll royce liability james hardie presently liability roll royce observation irrelevant james hardie satisfy condition statute cross claim disclose cause action 16 5 1 thelaw reform miscellaneous provision act 1946is following relevant term damage suffered person result tort c tortfeasor liable respect damage may recover contribution tortfeasor would sued liable respect damage 17 plaintiff mr hay suffered damage james hardie judgment elcom liable respect damage roll royce submits liability james hardie pursuant elcom judgment liability respect plaintiff damage liability arising pursuant contractual obligation arising james hardie elcom alternative liability pay money pursuant cause action provided statute action action respect personal injury seenickels v parkes 1949 49 sr nsw 124 unsworth v commissioner railway 1958 hca 41 1958 101 clr 73 18 true liability may fairly described arising pursuant contract statutory cause action point cross claimant inunsworth supra permitted recover pursuant queensland equivalent ofs 5 1 c thelaw reform miscellaneous provision act 1946although action action recover damage respect personal injury relevant question posed bys 5 1 c whether liability respect plaintiff damage question whether liability respect personal injury arise question relevant innickels v parkes supra andunsworth supra necessary construe legislation otherwise limiting liability 19 intrustees executor agency co ltd v reilly 1941 viclawrp 22 1941 vlr 110 mann cj said word respect difficult definition widest possible meaning expression intended convey connection relation two subject matter word refer 20 legislation provided in 5 1 c tortfeasor directly liable damage may recover contribution submission roll royce may weight fullagar j said inunsworthat 87 prepositional phrase respect wider preposition opinion judgment obtained elcom liable plaintiff james hardie become tortfeasor liable respect plaintiff damage entitled claim contribution roll royce tortfeasor judgment also liable respect damage proposed cross claim discloses cause action 21 see discretionary ground refuse leave file claim initial division liability james hardie elcom made arbitrarily far cross defendant james hardie state new south wale concerned remaining contest cross defendant may evidence submission visit respective culpability roll royce elcom pursuant provision ofpt 6 r 4 rule believe new south wale suffers prejudice may addressed pursuant rule 22 grant leave james hardie rely upon cross claim roll royce filed 5 august 1999 word amended title struck order accordinglysolicitors roll royce industrial power pacific ltd hunt huntsolicitors james hardie co pty ltd allen allen hemsleysolicitor state new south wale v knight crown solicitor office |